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Interprovincial labour mobility in the unionized construction sector

I recently received in my mailbox the July/August 2010 issue of Inside HRA from First Reference. It deals with interprovincial labour mobility. It’s an interesting read for anyone who works in human resources across interprovincial boundaries. Although we often take for granted that citizens may live and work in any part of Canada they please, there are often unforeseen problems. Some of these problems can be quite challenging for an employer.

The issue that I am going to write about in this piece is interprovincial mobility in the unionized construction sector. This is an important issue for employers in the construction industry in particular, but has repercussions for other employers as well.

As anyone involved in the construction industry knows, most skilled tradespeople fall into one of two categories: apprentice and journeymen. Apprenticeship rules are governed by provincial legislation. The upshot of this is that once an apprentice achieves a journeymen certificate, he or she can travel and work legally in any province. However, in most cases an apprentice may only work legally in the province in which they registered their apprenticeship, unless they have permission from the governing body in the province they wish to travel to. For example, ss. 22 and 23 of the Nova Scotia Apprenticeship and Trades Qualification Act read as follows:

Compulsory certified trades

22 (1) The Governor in Council may, by regulation, specify that a designated trade is a compulsory certified trade.

(2) A person shall not practise a compulsory certified trade unless the person
(a) is a party to an apprenticeship agreement for which an application for registration has been made and the application is pending;
(b) is engaged in apprenticeship training in the trade under an apprenticeship agreement registered pursuant to this Act;
(c) holds a certificate of qualification in respect of the trade and is in compliance with the regulations;
(d) holds a temporary permit issued by the Director pursuant to this Act in respect of the trade; or
(e) holds a certificate recognized by the Director pursuant to the regulations.

(3) An employer shall not employ a person in a compulsory certified trade if the employer knows, or would reasonably be expected to know, that the person is prohibited from working in the trade under subsection (2).

(4) Subject to the regulations, the Director may exempt a person referred to in subsection (2) and an employer referred to in subsection (3) from the application of those subsections. 2003, c. 1, s. 22.

Temporary permit

23 (1) In accordance with the regulations, the Director may issue a temporary permit allowing a person to work in a compulsory certified trade.

(2) A temporary permit issued pursuant to subsection (1) is valid for the period, and is subject to any terms and conditions, specified in the permit. 2003, c. 1, s. 23.

This means that if, as a cross-border construction employer, you are employing apprentices in a different jurisdiction (e.g., Newfoundland apprentices in Nova Scotia), you may be in violation of the law.

The good news is that most provinces do not enforce this law. The key for employers is to call and check with the appropriate authorities. However, although the province may not enforce the law, it is usually still in an employer’s interest to get the requisite dispensation, particularly if the employer is non-union and wishes to stay that way.

In Nova Scotia, the Labour Relations Board has held that apprentices who are “illegally” working in Nova Scotia (by virtue of their apprenticeship being in a different province), are not considered to be lawfully employed for the purposes of the Nova Scotia Trade Union Act. This means that their votes, when it comes to the question of whether or not they would like to be represented by a union, are not counted.

This is precisely what happened in the case of IBEW local 625 v. Gander Electrical ((2008) NLSRB- CIP 3094. In that case, a Newfoundland employer had contacted the Nova Scotia Department of Education and determined that the Department of Education did not require him to register his apprentices in order to work in Nova Scotia. Upon arriving in Nova Scotia, the employer contracted some local electricians as well to complete the work. The International Brotherhood of Electrical Workers then attempted to certify the employer in Nova Scotia. Notwithstanding the fact that the majority of the employees did not wish to be represented by the union, the board ruled that the only Newfoundland employees whose votes would count were those that had their journeymen certificates. The vote ended up being carried in favour of the union (with the remaining Newfoundland employees’ wishes being disregarded).

The result in the above case is of interest to employers in the construction industry, but also to any other employers who may employ individuals regulated by provincial legislation. It behooves any employer to make sure all legal hurdles are cleared before sending any employees to another province.

Andrew Taillon
Cox and Palmer

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Andrew Taillon

Andrew Taillon was a lawyer in Cox & Palmer‘s Halifax office. He practiced mainly in labour, employment and litigation. Now he is a Barrister & Solicitor at Nova Scotia Department of Justice. Read more
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