Bricklayers, Masons Independent Union of Canada, Local 1 v. Neivex Masonry Inc., 2000 CanLII 12678

Bricklayers, Masons Independent Union of Canada, Local 1 v. Neivex Masonry Inc.

File No.: 0715-97-R Date: July 4, 2000

Before: David A. McKee, Vice-Chair.

Appearances: S. Krashinsky for the applicant; D. Defrancesco for the responding party.

Decision of the Board

1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). This application was originally filed on May 28, 1997. Pursuant to an order of the Board and the agreement of the parties dated April 17, 2000, a second representation vote was held on Thursday, April 27, 2000. The ballot of a single person, Mr. Jose Paiva, was challenged by the employer. When this matter came on for hearing, the employer indicated the basis of its challenge. The applicant objected to the introduction of the evidence on the basis that the evidence, if proved, would not be a valid reason for refusing to count the ballot cast by Jose Paiva. The parties agreed to argue this on the basis of the facts asserted by the employer, although some of them are disputed by the applicant.

2The assertions of Neivex are as follows:

1. Jose Paiva performed work as a labourer on the application date.
2. He did so at the request of supervisory personnel of Neivex.
3. He was paid for that work by Neivex on an hourly basis. Deductions for income tax, CPP and EI were made and remitted to the appropriate authority.
4. At the time Mr. Paiva was hired, he presented the employer with a valid social insurance number.
5. The Jose Paiva who is the subject of this decision is not one and the same person as the Jose Paiva to whom that social insurance number was issued. At the time he was hired the Jose Paiva who is the subject of this decision did not possess a valid social insurance number.
6. On the application date Jose Paiva was not a citizen, nor a landed immigrant, nor did he have a valid work authorization under the Immigration Act, R.S.C. 1985, ch. 28 (“the Immigration Act”), nor did he possess any other valid permit authorizing him to work in Canada.
7. Neivex was not aware of these facts with respect to his status under the Immigration Act until after the application for certification was filed.

3By way of elaboration, the employer indicated its evidence would include calling an official from Immigration Canada whose evidence would be that this individual did not possess any valid work authorization. In addition, he would proffer the opinion evidence that his employment was contrary to section 18 of the Immigration Regulations, 1978 (SOR/89-80) (“the Immigration Regulations”).

4The applicant, for its part, agreed with certain of the facts put forth by the employer, but asserted that the individual is still in Canada, that he now possesses a valid work permit, and disputes that the employer was unaware of his status under the Immigration Act on the date of application. However, this matter was argued as an objection by the applicant to the relevance of the evidence which the employer wished to lead. For the purpose of this decision, we accept the employer’s evidence as provable.

5Counsel for Neivex argues that the evidence is relevant because, he argues, these facts should cause the Board to exclude Mr. Paiva from the bargaining unit. That is, since his employment was unlawful, he cannot be an “employee” for the purposes of section 8 of the Labour Relations Act. In applying the statute, counsel argues that the Board is obliged to “act in accordance with the general law”.

6The Board has dealt with this issue in only two previous decisions. In Masters Construction Ltd., [1988] OLRB Rep. Feb. 162, the Board said:

In our opinion, the Board should not inquire into whether a person who is employed by an employer is a person who was legally employed under the Immigration Act. The Board is not the appropriate place to determine whether someone is lawfully entitled to work in Canada. While we have assumed that these two persons were not lawfully employed, we believe that their status under the Immigration Act is irrelevant to our determinations under the Labour Relations Act. If a person is employed, then whether that employment is lawful is a matter for other forums or agencies and not ours.

7Neivex seeks to distinguish this case on the basis that it is not asking the Board to determine Mr. Paiva’s status under the Immigration Act. That is an issue counsel intends to prove as a legal “fact” through evidence, much as one might prove foreign law in a proceeding where that law governed a contract which was the subject of an action. Further, counsel submits the distinction between this case and the Masters case is that the employer in Masters appears to have known of the status of the individuals before the application for certification was filed. He asserts that that is not the case in this application.

8In Impact Demolition Services Ltd., [1998] OLRD No. 481 (February 10, 1998), the Board rejected essentially the same argument put forward here, but without reasons.

9Both counsel agreed that the relevant provision of the Immigration Regulations is section 18 of that Regulation dealing with employment authorizations. It provides as follows:

18. (1) Subject to subsections 19(1) to (2.2), no person, other than a Canadian citizen or permanent resident, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.

(2) No person who is in possession of a valid and subsisting employment authorization shall continue in employment in Canada unless he complies with each of the terms and conditions specified in the authorization.

Neivex asserts that Mr. Paiva’s employment was in violation of section 18(1) of the Immigration Regulations. Accordingly it argues that the contract of employment is not enforceable at law because, like a contract for wagering, the subject matter of the contract is unlawful. Since Mr. Paiva was not legally entitled to be so employed, he ought not to be an employee for the purposes of this application.

10It appears on these facts that an employee would be in breach of section 18(1) of the Immigration Regulations. However, the contract itself is not for an unlawful purpose (such as wagering), but for a lawful purpose, namely employment. The employee may have committed an offence under section 18(1) by entering into the contract, but, if so, that is his violation of the statute. He violates it because of his failure to possess the necessary authorization to work in Canada, not because the objects of the contract are in violation of (or even regulated by) the Immigration Act.

11The simple question for the Board is ‘was Mr. Paiva an employee on the application date?’. That question is one which the Labour Relations Act directs the Board to answer and is at the core of the Board’s task in certification applications. In this case Mr. Paiva was under an obligation to perform work for the responding party and did so. The responding party was under a corresponding duty to pay for that work and it did so. On this simple analysis, Mr. Paiva is an employee. A contract of employment is not voided by a violation of section 18(1) of the Immigration Act Regulations. The employee would still have, at least in theory, a right to enforce payment of wages promised for work performed, even if the employee were deported after the performance of the work. Neither the performance of the work per se, nor the payment of wages in return for that work, is unlawful. These are matters of individual bargaining before certification and collective bargaining thereafter. Any issue of a violation of section 18(1) of the Immigration Regulations is not relevant to the question of whether Mr. Paiva was an employee.

12To focus on the question of the application of other statutes which the Board does not administer would be to lose sight of the task in which the Board is engaged. One can envision many circumstances in which construction work could be performed in a manner which is in conflict with other statutes. If an employer commences work on one site contrary to zoning by-laws and without a building permit, would an applicant union be entitled to ask the Board to disregard all persons employed on that site for the purposes of determining the count in a bargaining unit, since the work performed there was “unlawful”? Specifically, dealing with the Immigration Act and Regulations, should an employee be excluded from the bargaining unit if, contrary to section 18(2) of the Regulations, he or she worked beyond the geographic restrictions set out in the authorization? Would it make any difference if he or she started to work for his or her employer in that area and travelled outside it in the course of his or her employment? What about the employee who commences to work under a time-limited work authorization and continues to work after it has expired? Does the state of the employee’s or the employer’s knowledge make a difference? These latter questions are all valid questions to be asked if one were enforcing the provisions of the Immigration Act Regulations. It would not be surprising if those charged with the enforcement of that statute considered them to be relevant considerations in promoting the purposes of that statute. However, the Board’s determination of employment status must be grounded in Labour Relations Act issues, not issues arising from the application or enforcement of other statutes. Since we have found that Mr. Paiva is an employee, that is the end of the inquiry for the purposes of this application for certification.

13Neivex argues that this analysis is insufficient. It argues that the Board is obliged to act “in accordance with the general law” and points to the numerous decisions of this Board dealing with the impact of the Trades Qualification and Apprenticeship Act, R.S.O. 1990 ch. T-17 as amended (“TQAA”) on applications for certification in the construction industry, where the bargaining unit sought consists of persons who perform work in a trade designated by the TQAA as both certified and compulsory. Counsel relies on statements such as those in Marsil Mechanical Inc., [1997] OLRB Rep. July 636:

“On the other hand, in more than fifteen years of jurisprudence (beginning with Irvcon Roofing and Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594), the Board has consistently applied the Apprenticeship Act when it comes to employees engaged in compulsory certified trades by asking the question: “Were those employees lawfully engaged in that trade at the material times?” (paragraph 14).

14To the extent that Marsil Mechanical and cases like it are correct (and they may not be) the question to which the Board directed its attention in them was a very different one from this case. In those cases the Board dealt with which employees were included in a particular bargaining unit. That is, the Board was defining the boundaries of the unit. Thus the TQAA may have an impact on how the Board defines the “group of employees who are members of a craft by reason of which they are distinguishable from other employees” or may be relevant to the mandatory application of provincial collective agreements, by which the members of that craft “commonly bargain separately and apart from other employees (see section 9(3)). This is not the same as determining the lawfulness of employment, but rather looking at one factual and legal issue which has a bearing on the Board’s task under the Labour Relations Act in determining membership in a bargaining unit.

15To be fair to counsel for Neivex, several decisions of the Board do not fit well with this analysis. Cases such as O. J. Pipelines Inc., [1989] OLRB Rep. Sept. 976 (para. 10), Heritage Mechanical, [1995] OLRB Rep. Mar. 272 (para. 34), and Rolan Plumbing, [1998] OLRB Rep. July 711 (para. 22) do not articulate any analysis beyond the question of the lawfulness of the employment of certain individuals. Indeed, that limited analysis seems to this panel of the Board to lead to some very strange results viewed from the perspective of the Labour Relations Act. In those cases the Board included (or was prepared to include) persons in a craft bargaining unit who were doing the work of the certified trade, but did not hold a valid Certificate of Qualification or Contract of Apprenticeship. The Board found that their employment was “lawful” as they fell within a statutory exemption for persons employed in a trade for less than 90 days. Prima facie, it would seem to this panel of the Board that there may well be a number of difficult issues (depending on the facts of each case) raised by applying this test rigidly. It raises the potentially absurd specter of including in a craft bargaining unit a person with few skills and little experience in a particular trade or craft while excluding a person fully skilled in that trade or craft with years of experience, but who lacks the Certificate of Qualification. How such a result can be justified for the purpose of determining membership in a craft for the purposes of defining a craft bargaining unit is not at all obvious. It may well be that this issue will require a more detailed analysis when and if it arises again.

16For the purposes of this decision, however, it is not necessary to enter into these considerations. Even assuming all of the decisions dealing with the TQAA are correct, they focus on a question different from the one before the Board in this case.

The Board finds that Mr. Paiva was an employee of the responding party on the date of application. Nothing in the Immigration Act or Regulations changes that conclusion. Therefore, the Board will not permit this evidence to be led. Even if all of the facts asserted by Neivex are true, they would not cause the Board to exclude Mr. Paiva from the bargaining unit.

17This matter will resume hearing into all other issues remaining in this application on September 22 and 25, 2000. I am seized of this application.

“David A. McKee”

for the Board