October 31, 2016
Hermanns deflects union challenge
Jorg Hermanns envisions a prosperous future for the green industry and new opportunities for his employees.
Landscape Ontario member Jorg Hermanns was caught off guard with the news his employees had voted to unionize. That was in 2012. After quite a bit of time, effort and expense, the Ontario Labour Relations Board recently handed down two comprehensive decisions exempting both his business and his staffing functions from union organizing.

Hermanns Contracting of Schomberg, Ont., is a green infrastructure provider, serving government, industrial, institutional, developer and residential customers. Owner Jorg Hermanns wanted other LO members to know about his story, and made time for an interview with Landscape Ontario magazine.

The official start of the challenge was on a Sunday, when two employees voted to certify the Hermanns workforce — union organization efforts are allowed based on a majority of on-site voters. Next step on the union’s agenda was Industrial Certification, which would certify the Hermanns property.

Jorg Hermanns was discouraged with the actions, because he felt his employment profile had always been based on fairness. Upon engaging a labour lawyer, the horticulture exemption from the collective bargaining approach found in the Labour Relations Act became apparent.

Hearings before the Ontario Labour Relations Board started in 2012. Hermanns says he submitted about 8,000 pages of documents. The metric used to support Hermanns’ claim as a horticultural business was employee-hours, luckily supported by tracking systems already in place.

Jorg Hermanns testified all day, for nearly nine days. Labour Board proceedings are more casual than traditional court cases, he said. OLRB vice-chair Slaughter, presiding, seemed to pride himself in picking up quite a bit of horticultural terminology, according to Hermanns.

The unionization question was dual; not only must the company’s business be entirely horticultural in nature, but employees’ functions must be horticultural as well. Hermanns made the case that the company is a horticultural business, and that all employees were necessary for the operation of a horticultural company; that Hermanns Contracting could not operate without the full range of staff specialties.

The Labour Board’s ruling came down in 2015 that Hermanns is indeed an employer whose primary business is horticulture, and therefore exempt from unionization efforts. Further, in April 2016, it ruled on the employee status of five individuals — four landscape truck drivers and one landscape licensed truck technician. The OLRB determined the five were indeed employed in horticulture by an employer whose primary business is agriculture or horticulture.

The rulings apply to all unions, and there is no opportunity for appeal. The ruling’s breadth is a helpful precedent for Ontario’s green industry, said Jorg Hermanns. He said the legal fees, lost business opportunities and lost profits generated costs exceeding seven figures.

During the long process, the company was frozen in time, prompting several employees to leave. In an interesting development, Hermanns believes the challenge made his company stronger; he called the turnaround “magical.” The employees and managers that stayed were committed to sharing, interacting, independence — and being happy. Hermanns is clearly proud of his current strong, dedicated team.

Hermanns calls himself an entrepreneur by nature, who loves to innovate and push the envelope. “I try to run the best show possible, I try to hire the best, and use my success.”

Having weathered the union certification challenge, Hermanns says he protected himself several ways, including the following precepts:
  • Be a good operator
  • Pay attention to your staff
  • Ensure your wages are at union levels
  • Educate your people; don’t be afraid to say the word “union”
  • Know that you have a problem if you are under-paying
  • Never be afraid to charge enough for your work
  • Know the true cost of your time, including the demands on your health and family.

Itemizing this list during the interview stoked Hermanns’ excitement for the green industry. “Charging earns you respect. I see clients get ecstatic when they buy a big item.” He advises contractors not to place high values on things, such as rocks, but rather on the services and experiences contractors provide. He asked, “What other industry sells something that gets better with age?” Canada’s real estate market and immigration profile reflect new worlds of opportunity, in Hermanns’ expansive imagination.

Jorg Hermanns said he was motivated to tell his story because he believes it is important for LO members to know the horticultural exemption exists. He says, “The word needs to get out. The Act is there, let’s protect it.” He urges LO members to inform their MPs of the horticulture exclusion’s importance, through letters and action from the LO board.

Employee relations resource

Landscape Ontario, along with other associations, is a member of the Labour Issues Coordinating Committee; Ken Linington is the legal expert serving on that committee. Linington mentioned that while the Hermanns decisions granted exemptions under the Labour Relations Act, workers also have rights to organize under the Agricultural Employees Protection Act. However, Linington says a union formed under the AEPA is not entitled to use strikes to force bargaining, among other differences, and to his knowledge no union has been willing to function outside the LRA.

Linington provided LO with an employee relations best practices handbook; he commented the guidelines in the handbook are similar to the points recommended by Hermanns. The handbook is available at horttrades.com/ERhandbook.