BC First Nations Covered by New ESA Regs

Government rules aboriginal contractors fall under provincial jurisdiction for B.C.’s new labour standard regulations.

First Nations Covered by New Employment Standards Regs

B.C.’s First Nations silvicultural contractors and their employees will be covered by new provincial employment standards regulations according to federal and provincial labour code representatives. The ruling made last week is based on an earlier Supreme Court of Canada decision stating federal authority under the Indian Act does not apply for labour purposes solely because owners or employees are of aboriginal heritage or because the work takes place on a reserve.

Based on the court’s decision, because silvicultural work is a provincial undertaking, provincial regulations apply. The only exception to this rule would be in a situation where workers are employed directly by the band. In that case authority goes to the Indian Act and federal labour standards would apply. All other arrangements including partnerships with FRBC and New Forest Opportunities Ltd , independent aboriginal contractors, native joint ventures with forest companies etc. will fall under the new B.C. employment standards regulations introduced last year.

Sorting this issue out has held up the ministry of labour’s joint effort with silvicultural contractors to implement licensing of the industry by next year. However, officials now are moving to get the initiative on track again with the selection of an advisory committee comprising contractors, First Nations, labour, industry, and government representatives. This group will advise the director of employment standards on how to design the licensing scheme. Ministry of Labour and WSCA reps are planning to meet with native groups in the Interior this summer to discuss licensing and the new regs.

The new provincial employment standards regulations can be found at the ministry of labour website: http://www.labour.gov.bc.ca/esb/silviculture/

Here is a summary of federal labour regulations:

-Federal labour standards’ minimum wage is the provincial standard.

-Standard hours of work are 8 and 40 at time and a half for hours in excess of standard hours.

-Maximum hours are 48 in a week. Variances to average or modify standard hours are available.

-Travel time is not hours of work. The exception might be a crew driver.

-Camp fees: “Where the board of living quarters or both are furnished by or on behalf of an employer to an employee and the arrangement is accepted by the employee, the amount by which the wages of the employee may be reduced, for any pay period, below the minimum hourly wage established under section 178 of the Act either by deduction from wages or by payment from the employee to the employer for such board or living quarters, shall not exceed:

-(a) for board, $0.50 for each meal; and

-(b) for living quarters, $0.60 per day

-There must be a payday every 30 days.

-Piece work paid employees must receive at least the minimum wage for their hours of work.

Here are some notes on the jurisdictional issues involved in ruling regarding aboriginal employers and the province’s Employment Standards Regulations:

Section 91(24) of the Constitution Act, 1867, gives the federal Parliament exclusive legislative authority in relation to “Indians, and lands reserved for the Indians.” The primary exercise of this authority is the federal Indian Act, which, in part, provides for the regulation of reserves and the creation, activities and operation of band councils. The term “Indian” is used to represent those individuals registered as such under the Indian Act. Where the federal Parliament has the exclusive power to legislate in relation to a particular subject matter, it follows that it also has exclusive legislative authority over the labour relations of businesses, works and undertakings involved in that Activity. The fact that the Canada Labour Code then applies is reflected in s.2(i) as such matters are outside the legislative authority of the legislatures of the provinces. It should be recalled that s.167(1) provides that the Canada Labour Code applies to all federal, works and undertakings and the subjects listed in s.2 are only examples.

A major difficulty in this area is deciding whether a particular activity is in relation to “Indians, or lands reserved for Indians.” The courts have developed the test of “Indianness,” where they look to determine if the activity is likely to affect the “status, identity and character of Indians,” or “Indian culture, heritage and traditions.” The following activities have been held by the courts to attract federal jurisdiction since they relate to Indian status or privileges: providing child care and family services; maintaining school buildings and residences for Indian children; administering a home for senior citizens; policing on a reserve. However, each case must be examined on its own merits.

An activity will attract federal jurisdiction if it either meets the test of “Indianness” or is so functionally integrated with the general activities of the band council that it cannot be severed for constitutional purposes. For example, the Canada Labour Code may apply even where the complainant is employed in an ordinary commercial enterprise such as a gasoline station or golf course, which would normally fall under provincial jurisdiction as it does not affect “Indianness,” if that operation is highly integrated with the operations of the band council. These are difficult legal determinations that require a thorough investigation, including information on the corporate structure, the level of the involvement of the band council in the functional control and operation of the activity, the level of integration with the band council and the object of the enterprise including the use of the profits.

An activity does not attract federal jurisdiction for labour purposes solely because the owners or employees are of aboriginal heritage or because it takes place on a reserve. Further, it is not necessary that either of those factors be present for the activity to come under federal jurisdiction. In the case of Four B Manufacturing. v. United Garment Workers of America, [1980] 1 S.C.R. 1031 members of a reserve were operating a manufacturing company on the reserve. In the Supreme Court of Canada, the company argued that the Ontario Labour Relations Board did not have jurisdiction to issue a union certification order. In the decision of the Court, Mr. Justice Beetz stated,

“…the sewing of uppers on sport shoes is an ordinary industrial activity which clearly comes under provincial legislative authority for the purposes of labour relations. Neither the ownership of the business by Indian shareholders, nor the employment by that business of a majority of Indian employees, nor the carrying on of that business on an Indian reserve under a federal permit, nor the federal land and subsidies, taken separately or together, can have any effect on the operational nature of that business. By the traditional and functional test, the [Ontario] Labour Relations Act applies to the facts of this case and Board has jurisdiction.”

The activities of Four B did not affect “Indianness” and the company was not functionally integrated with the general operations of the band council.

It should be noted that whether an undertaking is incorporated federally or provincially is not relevant. Also whether the activity is funded all or in part by the federal or provincial government is not sufficient to establish jurisdiction.