Date: 20110531
Docket: T-511-10
Citation: 2011 FC
637
Ottawa, Ontario, May 31, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
OCEAN STEEL & CONSTRUCTION LTD.
|
|
|
|
Applicant
|
|
and
|
|
|
RHEAL ARSENEAULT, ROYCE BOIES, DAVE
CAMERON, MARK R. CUMMINGS, MICHAEL DUNCAN, JACQUES GOGUEN, HENRI GUILLEMETTE,
GERALD HACHEY, MATTHEW HOMENEY, DANIEL R. HOWARD, MATHIEU LOSIER, TONY J.
MILLS, GLEN TABER, NORMAND THIBODEAU, PATRICK THIBODEAU
|
|
|
|
Respondents
|
|
|
And
THE ATTORNEY GENERAL OF CANADA
|
Respondent
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of a fair wage officer and
inspector of Human Resources and Skills Development Canada (the inspector),
dated March 5, 2010. The inspector determined that the applicant had not paid
the individual respondents at the wage rates established by Human Resources and
Skills Development Canada (HRSDC)’s Regional Director, Atlantic Region, found
in the Fair Wage Schedule for New Brunswick-East, made pursuant to the Fair
Wages and Hours of Labour Act, RSC 1985, c
L-4
(the
Act) and the Fair Wages and Hours of Labour Regulations, CRC c 1015 (the Regulations).
[2]
The
applicant requests an order:
1. Granting a writ of certiorari
quashing the decision;
2. Declaring that the
decision was made contrary to law, in excess of jurisdiction and is a nullity;
3. Declaring that the
application is not required to pay the amounts referenced in the decision to
the individual respondents;
4. Directing the inspector
to revoke any requests for the holdback of funds due and owing to the applicant
pursuant to its sub-contract under contract 37687, or otherwise seek to enforce
the decision; and
5. Granting the
applicant its costs of this application.
Background
[3]
Ocean
Steel & Construction Ltd. (the applicant) is an incorporated company based
in Saint
John,
New
Brunswick.
The applicant fabricates, supplies and installs reinforcing steel for
construction projects.
[4]
Maxim
2000 Inc. (Maxim) was awarded Contract number 37687 (the prime contract) with
Defense Construction Canada on June 27, 2008. The Labour Conditions of the prime
contract stipulated that all persons employed by the subcontractor were
required to be paid wages in accordance with the attached Fair Wage Schedule of
New Brunswick – East (Fair Wage Schedule NB-East). The Labour Conditions and
Fair Wage Schedule NB-East were listed and available to all potential bidders,
including bidders on subcontracts, during the tender process.
[5]
The
applicant entered into a subcontract dated June 30, 2008, with Maxim to supply
and install concrete reinforcing steel in a project at Canadian Forces Base
(CFB) Gagetown, New
Brunswick. The applicant’s contract with Maxim incorporated all of the
provisions of the prime contract, including the Labour Conditions and Fair Wage
Schedule NB-East.
[6]
The Fair Wage Schedule NB-East was developed pursuant to the Act
and the Regulations. Paragraph 3(1)(a) of the Act states that under every
contract with the Government of Canada, employees shall be paid fair wages. The
Act defines fair wages in section 2. Mr. Justice William McKeown in Kinetic
Construction Ltd v Canada (Attorney General), 27 Admin
LR (3d) 296, [2000] FCJ No 1181 (QL) (FCTD) broke down the definition at paragraph
21:
The definition of
fair wages contains three elements. Fair wages are wages that (a) are generally
accepted as current for competent workmen; (b) in the district in which work is
being performed; (c) for the character or class of work in which workmen are
respectively engaged.
[7]
Section
4 of the Regulations sets down the process for determining fair wages:
|
4.(1) Subject to subsections (3) and (4),
where there is a wage rate fixed, from time to time, by or under an Act of
the legislature of a province that is applicable in the district in which the
work is being performed for the character or class of work, and that rate is
generally accepted as current, the fair wage shall be the provincial rate.
(2) Where
there is no wage rate fixed by provincial law for the district, the fair wage
shall be equivalent to the average of salaries paid in that district for the
character or class of work, based on statistical estimates produced by
Statistics Canada from an occupational survey of the construction sector.
(3) Where the
wage rates fixed by provincial law for a district are not generally accepted
as current, the fair wages shall be the wage rates determined under
subsection (2).
(4) In no case
shall the fair wage rate be less than the minimum hourly rate fixed pursuant
to Part III of the Canada Labour Code.
|
4.(1)
Sous réserve des paragraphes (3) et (4), le juste salaire payable pour un
travail dans un district donné est, le cas échéant, le taux prévu et
éventuellement modifié par la législation provinciale pour ce travail compte
tenu de sa nature ou catégorie, si ce taux est généralement accepté comme
étant le taux courant.
(2) En
l’absence de taux prévu par la législation de la province pour un district
donné, le juste salaire est équivalent à la moyenne des salaires payés dans
ce district, compte tenu de la nature ou catégorie de travail, obtenue à
partir des estimations statistiques de Statistique Canada qui sont établies
selon les enquêtes de professions pour le secteur de la construction.
(3) Lorsque,
pour un district donné, les taux de salaires prévus par la législation
provinciale ne sont pas généralement acceptés comme étant courants, les
justes salaires pour ce district sont ceux déterminés conformément au
paragraphe (2).
(4) Le juste
salaire ne doit en aucun cas être inférieur au salaire horaire minimum fixé
sous le régime de la partie III du Code canadien du travail.
|
[8]
In
May 2007, New Brunswick wage rates for performance of work on Crown
construction projects was set under the Minimum Wage for Categories of
Employees in Crown Construction Work Regulation, NB Reg 2007-34 (NB
Regulation 2007-34).
[9]
Mr.
Bruce Boughen, the manager, Labour Standards Operations, Labour Program, HRSDC
(the manager), was involved in 2007 in assessing the New Brunswick provincial
wage rates. He received survey results from Statistics Canada in February and
March of 2007 which he and the Labour Program staff analyzed. He then drafted a
Fair Wage Schedule for both New Brunswick East and West using the “most
frequently paid” indicator pursuant to subsection 4(2) of the Regulations.
[10]
Following
the enactment of a new provincial wage schedule for New Brunswick, the manager
assessed the wage rates set by the province. The manager concluded that the
provincial wage rates were not “generally accepted as current” under subsection
4(3) of the Regulations principally because they treated the entire province as
one district for the purpose of wage rates. The manager found that Statistics
Canada data indicated that the wages varied between the east and west
districts.
[11]
By
memorandum dated July 10, 2007, Mr. Pierre Meunier, regional director, Labour
Program, Atlantic Region (the regional director) approved the Fair Wage
Schedule NB-East under section 5 of the Regulations.
[12]
From
January to March 2010, the inspector conducted a fair wage inspection of the
wages paid to the applicant’s employees pursuant to the established Fair Wage
Schedule NB-East.
Inspector’s Decision
[13]
In
her March 5, 2010 decision, the inspector noted that she performed her
inspection according to the Act and the Regulations. She determined that
the applicant had not paid the wages stipulated in the Labour Conditions and
Fair Wage Schedule of contract 37867 awarded to it by Defense Construction
Canada.
[14]
The
inspector found that there were wages owing for fifteen “rodman” positions (the
individual respondents) amounting to $19,743.66.
Issues
[15]
The
applicant submitted the following issues for consideration:
1. What is the appropriate
standard of review of the inspector’s decision?
2. Did the inspector
act without jurisdiction and/or acted beyond her jurisdiction when:
a. She
determined that the applicant had failed to comply with the provisions of the
Act and in particular subsection 3(1) thereof;
b. She failed
to give effect to subsections 4(1) or 4(3) of the Regulations by:
i. ignoring
or disregarding the wage rates fixed by the NB Regulation 2007-34
in the absence of any evidence that they were not generally accepted
as current and in the face of evidence that the wage rates paid
the individual respondents were the rates provided by the applicable
collective labour agreements.
c.
She determined that the provisions of the Regulations prevailed over
the provisions of the NB Regulation 2007-34,
when the latter specifically provided
for a wage rate for the class of work involved;
3. The
inspector erred in law in interpreting the provisions of the Regulations in
that she failed to give effect to the provisions of the New Brunswick Regulation
97-125 under the Apprenticeship and Occupational Certification Act (RSNB
1973, c A-9.1 (AOCA)) and in particular, subsection 13.1(1) thereof, by finding
that the individual respondents were entitled to the full ironworker wage rate
specified by the Federal Fair Wage Schedule, notwithstanding the fact that none
of the individual respondents were certified journeymen ironworkers and
notwithstanding the fact that the Federal Fair Wage Schedule expressly requires
that the provincial AOCA be followed;
4. The
Inspector based her decision on an erroneous finding of fact that she made in a
perverse or capricious manner or without regard for the material before her, in
that she concluded that the individual respondents performed the work of the
Ironwork (Generalist) occupation, despite the evidence before her that the wok
in question was not that of a journeymen Ironworker (Generalist), but that of a
Rod Setter (Reinforcing Steel) and despite the fact that none of the individual
respondents was a journeymen Ironworker (Generalist) or a registered apprentice
in that trade.
[16]
The
respondents submitted the following issues for consideration:
1. What is the standard
of review applicable to the decision of the manager and the regional director,
under the Regulations?
2. Did the manager err
in determining that the rates set by the province of New
Brunswick
were not generally accepted as current in the New Brunswick-East district and
did the regional director err in establishing a fair wage schedule for the
district?
3. What is the standard
of review of the inspector’s decision?
4. Did the inspector
commit a reviewable error in reaching her decision of March 5, 2010?
a. Did the inspector
act within her jurisdiction in applying the Fair Wage Schedule
for NB-East?
b. Did the
inspector properly determine that the individual respondents fell into the
ironworker category in the fair wage schedule?
[17]
The
issues are as follows:
1. What are the
appropriate standards of review for the decisions of the manager, regional director
and inspector?
2. Was the inspector
required to apply the Fair Wage Schedule for New Brunswick-East once it was
approved by the regional director?
3. Did the manager err
in determining that the rates set by the province of New
Brunswick were not generally accepted as current in the New Brunswick-East
district and did the regional director err in approving a fair wage schedule
for that district?
4. Did the inspector
properly determine that the individual respondents fell into the ironworker
category in the Fair Wage Schedule NB-East?
Applicant’s Written Submissions
[18]
The
applicant submits that considering the factors in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the decision
of the inspector should be reviewed on the correctness standard. First, the
decision of the inspector is not protected by a privative clause under the
Regulations and the role of an inspector not mentioned in the Act. The absence
of a privative clause suggests a less deferential standard. Second, the
definition of inspector in the Regulations is taken from the Canada Labour
Code, RSC 1985, c L-2. The Minster
may designate any person an inspector and no particular expertise or
qualifications required, indicating that less deference is appropriate. Third,
the purpose of the Act or the Regulations as gleaned for their content is that
of labour standards legislation. Unlike other labour standards legislation, the
lack of appeal suggests that the Regulations do not favour a deferential
standard of review. Finally, the nature of the question, whether the individual
respondents were being paid fair wages, could only be answered after analyzing
the interplay between federal and provincial legislation. This type of legal
analysis should be reviewed on a correctness standard.
[19]
The
applicant submits that the inspector acted without jurisdiction by not applying
section 3 of the Act and section 4 of the Regulations. She was required to
interpret the Act and Regulations, examine provincial legislation, inquire into
the provincial wage rates and determine whether they are generally accepted as
current. However, she simply applied the Fair Wage Schedule NB-East. The inspector
should have considered the fact that there are separate collective agreements
for rod setters and ironworkers. Because she did not address these key issues,
the inspector lost jurisdiction to perform her inspection.
[20]
The
applicant argues that the inspector also erred in finding that the Fair Wage
Schedule NB-East prevailed over the NB Regulation 2007-34. There is nothing in
the Act or the Regulations that provides that if a federal wage schedule
exists, it will prevail over provincial rates.
[21]
The
applicant contends that only where there is no provincial law for the district
or the provincial law is not accepted as current do the Regulations permit the
regional director to establish a fair wage schedule. The New
Brunswick
wage schedule met all the criteria in subsection 4(1) of the Regulations. There
was no evidence that the wages set in the New Brunswick wage
schedule were not generally accepted as current. Further, there is no record
that the regional director ever turned his mind to the question of whether the
provincial rate was generally accepted as current. Therefore, the regional director
lost jurisdiction to issue the Fair Wage Schedule NB-East.
[22]
Finally,
the applicant submits that the inspector erred in finding that employees in the
position of rodman should be paid as ironworkers. The Fair Wage Schedule
NB-East incorporated the AOCA. The AOCA does not provide for reinforcing ironworker
(rodman) but does recognize ironworker (generalist). None of the individual
respondents were journeymen ironworker (generalist) nor are any registered as
apprentices in that trade and it was an error to determine that they should be
paid as such.
Respondents’ Written
Submissions
[23]
The
respondents submit that the applicant’s challenge of the inspector’s decision
implicitly challenges two other decisions:
1. The decision of the
manager under section 4 of the Regulations that the New Brunswick provincial
rates were not generally accepted as current and could not be used to determine
fair wages; and
2. The decision of the
regional director approving the Fair Wage Schedule NB-East under section 5 of
the Regulations.
[24]
The
respondents submit that these decisions are all reviewable against the
reasonableness standard.
[25]
In
Kinetic above, the Federal Court considered the standard of review
applicable to a similar decision of a regional director under the earlier
version of the Regulations. The Court held that were the regional director to
have reviewed and compared the Statistics Canada data and then determined the
wage, the Court would have recognized a broad relative expertise. This was the
action taken by the manager in the case at bar and therefore this decision is
entitled deference.
[26]
The
respondents submit that according deference is supported by the Dunsmuir
above, factors. The statutory scheme and the Regulatory Impact Analysis Statement (RIAS) demonstrate
that the purpose of the legislation is to ensure fair wages are paid on federal
construction contracts. The absence of a privative clause is not determinative
and is outweighed by the other factors. The lack of a right of appeal indicates
deference. Likewise, the decision whether to accept provincial rates as current
is one of fact and policy with no question of law raised and therefore deference
automatically applies. The manager’s decision arises from the combined
experience of HRSDC and Statistics Canada with authority and expertise in
compiling statistics and therefore deference should apply.
[27]
The
respondents note that the decision of the regional director approving the fair wage
schedule is not directly challenged in the notice of application. However, the
respondents submit that in reviewing this decision, the reasonableness standard
should apply for the same reasons outlined in the discussion of the manager’s
decision. The director’s decision is directly connected to and flows from the
decision of the manager.
[28]
The
respondents submit that the decision of the inspector is also reviewable on the
reasonableness standard. Dunsmuir above, requires an examination of the
empowering legislation. The legislation such as the Act, the Regulations, the
Labour Conditions and the RIAS contemplate that an inspector’s role is to
conduct inspections of employment records to ascertain compliance by
contractors, such as the applicant, with the applicable fair wage schedules.
Therefore, the inspector’s decision is exclusively factual and deference is
appropriate. The absence of a privative clause in the Act and the Regulations
is a neutral factor and not determinative. The inspector performed her role
within the specialized area of federal construction contracts with access to
the unique resources of the HRSDC Labour Program. This is entitled to
deference.
[29]
Moreover,
the respondents submit that the Federal Court of Appeal and the Federal Court
in Dynamex Canada Inc v Mamona, 2003 FCA 248 and Westcoast Energy Inc v Canada
(Labour, Regional Safety Officer) (1995), 104 FTR 123, have reviewed
inspectors of the Canada Labour Code and determined that where the
decision involved questions of fact or mixed fact and law, they are entitled to
deference.
[30]
The
respondents submit that both the decision of the manager and regional director
were reasonable. The applicant’s submissions largely ignore the role and
responsibility of the manager. However, it was the manager who examined the
2007 wage rates fixed for New Brunswick and compared them to data
from Statistics Canada. He came to a reasonable conclusion that the provincial
rates could not be generally accepted as current per subsection 4(3) of the
Regulations because the provincial wage rates were inconsistent with the
Statistics Canada data and did not reflect the variance in wage rates between
the different areas of New Brunswick. Pursuant to subsection 4(2), the manager
used the “most frequently paid” wages to prepare new fair wage schedules for
two New
Brunswick
districts, East and West. These draft fair wage schedules were then recommended
to and approved by the regional director under section 5 of the Regulations.
[31]
The
decision to create a fair wage schedule was appropriate given this Court’s
decision in Kinetic above, which determined that there should have been
distinct wage districts in British Columbia where the wage rates
for the Vancouver and Victoria areas were different from the rest of the
province.
[32]
These
decisions fell well within the range of possible acceptable outcomes and are
therefore reasonable according to the Dunsmuir decision.
[33]
The
respondents further submit that the inspector did not err in applying the Fair
Wage Schedule NB-East. There is no provision in the Act, the Regulations,
Labour Conditions, the Canada Labour Code or the Operational Program
Directives (OPD) 870 or 871 that imposes any duty on the inspector to make
determinations about provincial rates and establish a fair wage schedule. Once
the regional director has approved a fair wage schedule under section 5 of the
Regulations, the inspector must make determinations of wages and rates in
accordance with that schedule. Moreover, the applicant’s subcontract and the
prime contract expressly incorporate the Labour Conditions and Fair Wage
Schedule NB–East. The applicant was not permitted to pay wages at the
provincial rate. The inspector was correct that once a fair wage schedule is in
existence, it prevails over existing provincial rates.
[34]
The
inspector did not err in determining that the individual respondents were ironworkers.
The applicant described the individual respondents as rodsetters and rodmen in
its documentation, but this category of employee is not included in the Fair Wage
Schedule NB-East. It was reasonable for the inspector to consult the National
Occupation Classification and find that rodsetters were incorporated into the
broader category of ironworker found in the Fair Wage Schedule NB-East. The inspector’s
authority to include the individual respondents in the ironworker category is
found in section 8 of the Regulations. This was a reasonable conclusion
supported by the facts and law.
Analysis and Decision
[35]
Issue
1
What are the appropriate
standards of review for the decisions of the manager, regional director and inspector?
To date, no
court has determined the standard of review for a decision of an inspector
under the Act. However, this Court determined that the reasonableness simplicter
standard was appropriate for a regional director under the previous version of
the Regulations, in Kinetic above.
[36]
In
Dunsmuir above, the Supreme Court highlighted several factors which may
be considered in assessing the appropriate standard of review. These are:
1. the presence or absence
of a privative clause;
2. the purpose of the
tribunal as determined by the enabling legislation;
3. the nature of
question at issue; and
4. the expertise of the
tribunal.
[37]
Both
parties have undertaken a thorough analysis of the above factors. However, I
find the Supreme Court’s statement in paragraph 64 of Dunsmuir above, particularly
important to the case at bar. The Court held that:
In
many cases, it will not be necessary to consider all of the factors, as some of
them may be determinative in the application of the reasonableness standard in
a specific case.
[38]
The
nature of the question at issue in both the decision of the manager and inspector
is highly factual. While the manager’s decision involves interplay between the
facts and law, the inspector’s decision is entirely factual.
[39]
The
Supreme Court noted at paragraph 53 of Dunsmuir, that questions of fact
or mixed fact and law are reviewable on the reasonableness standard:
Where the question is one of fact,
discretion or policy, deference will usually apply automatically (Canada
(Attorney General) v. Mossop, [1993] 1 S.C.R. 554 (S.C.C.), at pp. 599-600;
Q., at para. 29; Suresh, at paras. 29-30). We believe that the same
standard must apply to the review of questions where the legal and factual
issues are intertwined with and cannot be readily separated.
(See also paragraph 51).
[40]
The
role of the inspector was to determine into what category of the Fair Wage
Schedule NB-East the individual respondents fell and whether they were paid in
accordance with the rates for that category. If not, how much was owing to
them? These were purely factual issues.
[41]
The
manager’s decision involved determining whether there was provincial
legislation setting wage rates for particular classes of employment and if so,
whether those rates were generally accepted as current. This involved receiving
and analyzing data from Statistics Canada and comparing that data to the wage
rates set in provincial legislation. This process was largely factually based
and where it involved questions of law, such as interpreting legislation to determine the meaning of fair wages, these
questions were intertwined with the factual assessments.
[42]
Finally,
I agree with the respondents that the regional director’s decision is directly
connected to that of the manager and should be assessed on the same standard of
review.
[43]
As
such, I conclude that the analysis of the nature of the question at issue is
determinative of the standard of review analysis and consequently, all of the
decisions involved should be reviewed on the reasonableness standard.
[44]
Issue
2
Was the inspector
required to apply the Fair Wage Schedule for New Brunswick-East once it was
approved by the regional director?
As noted by
the respondents, there are no provisions in the Act, the Regulations, Labour
Conditions, the Canada Labour Code, the OPD 870 or OPD 871 which impose
a duty on an inspector to make a determination about provincial wage rates and
establish a fair wage schedule.
[45]
The
HRSDC Labour Program assigns the analysis of provincially-established wage
rates under section 4 of the Regulations to the Labour Standards Operations at
the National Headquarters in Ottawa. The regional director then prepares a fair
wage schedule pursuant to section 5 of the Regulations.
[46]
Once
approved by the regional director, the Fair Wage Schedule NB-East was
applicable to federal construction contracts in that district, including the
applicant’s subcontract with Maxim for the concrete reinforcing work at CFB
Gagetown.
[47]
Moreover,
the applicant’s subcontract and the prime contract expressly incorporate the Labour
Conditions and the Fair Wage Schedule NB-East. The applicant was, or should
have been, aware during the tender process and at the time of negotiations with
Maxim of the minimum wage rates required by the contract. Nothing in the
legislation or contract permits the applicant to pay wages at the provincial
rate once a federal wage schedule has been established.
[48]
Furthermore,
once the Fair Wage Schedule NB-East was applicable to federal construction
contracts in that district, including the applicant’s, the inspector was not
free to choose whether or not to apply it. Pursuant to OPD 870 section 7.6,
which outlines the role of an inspector, she was required to make a
determination of whether the wages paid by the applicant accorded with the Fair
Wage Schedule NB-East.
[49]
I
find that there was no error on the part of the inspector applying the Fair
Wage Schedule NB-East to the applicant.
[50]
Issue
3
Did the manager, labour standards
operations err in determining that the rates set by the province of New Brunswick were not
generally accepted as current in the New Brunswick-East district and did the regional
director err in approving a fair wage schedule for that district?
The only
concern raised by the applicant’s submissions regarding the determination of the
fair wage schedule is that the issuance of the fair wage schedule should
be done by the regional director. The applicant notes that there is no record
of the regional director ever turning his mind to the question of whether the
provincial rate was generally accepted as current.
[51]
OPD
871 section 7.1 indicates that the analysis of the provincial wage rates in the
process of establishing a fair wage schedule shall be done by the labour regional head, in consultation with labour standards operations
at National Headquarters.
[52]
It
is clear from Mr. Boughen’s affidavit and cross-examination that as the manager,
labour standards operations, HRSDC, he examined the provincial wage rates for New
Brunswick.
He compared those rates to the information provided by Statistics Canada. He
determined that the rates were not accepted as current stating that:
[T]he New Brunswick rates treated the province as
constituting one district for the purpose of wage rates. However, based on
Statistics Canada data from previous surveys, and as confirmed by the 2006-2007
survey, I concluded that there were two distinct districts in New Brunswick, and that wages varied
between them. The first district was comprised of the cities and surrounding
areas of Fredericton, Moncton and Saint John and had generally higher wage rates
overall, with some exceptions. The Labour Program called this the “New
Brunswick-East” district. The remainder of the Province had comparatively lower
rates overall, again with some exceptions, and was called the “New Brunswick-West”
District. As such, the variances in the data between these areas of New Brunswick did not support a single
provincial rate. I therefore determined that the provincial wage rates were not
‘generally accepted as current’ under s.4(3) of the [Regulations].
[53]
The
conclusion arrived at by the manager is consistent with this Court’s decision
in Kinetic above. In that case, Mr. Justice McKeown held that where the
wage rates differed between regions of British Colombia, the regional director
should have developed fair wage schedules to reflect these differences. At
paragraph 21 and 23 he held:
… the definition
of fair wages, "in the district in which the work is being
performed," is a reference to a geographical region containing the actual
site of the construction project. There is no definition of
"district" in the Act, Regulations or Amended Regulations. The
Director has put forward that for purposes of his decision he will treat the
district as the whole of British Columbia. However, the Regulations and Amended Regulations contemplate for
the purpose of determining prevailing wages, a district must be a region in
which the prevailing wages are fairly consistent or relatively uniform, and
must be wages for competent workmen in such area.
[…]
In my view, if I
substitute Regulations for Policy, it is the same question as I have to answer
here. The evidence before me is that the wage rates vary from region to region
in British Columbia and the Director has not made any attempt to determine if the
provincial schedule continues to be the generally accepted wage rate in the
province or the particular district in question.
[54]
In
the case at bar, the regional director signed off on the Fair Wage Schedule
NB-East as developed by the manager and his staff at labour operation standards.
[55]
The
decision of the manager analyzing the data from Statistics Canada and
recommending creation of a fair wage schedule for the district of New Brunswick
East was transparent, intelligible and justified and was therefore reasonable
on the Dunsmuir above, standard.
[56]
Although
section 5 of the Regulations specifies that a regional director shall prepare a schedule of wage rates, I see no
error on the part of the regional director relying on the detailed analysis and
process undertaken by the manager of labour standards operations for HRSDC and
approving the Fair Wage Schedule NB-East.
[57]
Issue
4
Did the inspector
properly determine that the individual respondents fell into the ironworker
category in the fair wage schedule?
As found above, the inspector
was required to apply the Fair Wage Schedule NB-East.
[58]
Also
found above, the applicant was, or should have been, aware of the requirement
to pay the workers according to the Fair Wage Schedule NB-East.
[59]
The
position of the individual respondents is referred to by the applicant as rodman
and rodsetter. However, neither position appears in the Fair Wage Schedule for
NB-East.
[60]
The
applicant submits that the inspector was required to apply the AOCA, subsection
13.1(1) and New Brunswick Regulation 97-125 which does include the position of
rodman.
[61]
The
Fair Wage Schedule NB-East states that:
The apprentice wage rates are included
into this schedule by reference to the Apprenticeship and Occupational
Certification Act (AOCA) of the province. Thus, where the AOCA refers to a
percentage of a corresponding journeyperson's wage for a specific occupation,
that percentage shall be applied against the wages listed below.
[62]
However,
there is no evidence to suggest that the individual respondents were
apprentices. Rather, they were simply classified as rodmen by the applicant.
[63] Section 8 of the
Regulations states that:
|
8. There shall be included in every
contract a provision that, where there is no wage rate for a particular
character or class of work, the contractor will pay wages for that character
or class of work at a wage rate not less than the rate established under
section 4 for an equivalent character or class of work.
|
8. Le contrat
stipule que l’entrepreneur verse, à l’égard d’un travail d’une nature ou
d’une catégorie données pour lequel aucun taux n’est prévu dans l’échelle des
taux de salaires, un taux de salaire qui n’est pas inférieur à celui établi
conformément à l’article 4 pour un travail de nature ou de catégorie
équivalente.
|
This was also included in the contract with
the applicant through clause 02.2 of the Labour Conditions.
[64]
As
such, the applicant was required to pay the rodmen employees at a wage rate of
an equivalent class of work listed in the Fair Wage Schedule NB-East. The
possible positions were:
Electricians
Plumbers
Pipefitters, Steamfitters
Sheet Metal Workers
Ironworkers
Carpenters
Bricklayers
Cement Finishers
Tilesetters (including
terrazo, marble setters)
Drywall Installers, Finishers,
Lathers and Tapers
Roofers
Painters
Heavy Duty Equipment Mechanics
Refrigeration and Air
Conditioning Mechanics
Crane Operators
Truck Drivers
Operators Heavy Equipment
(excluding Cranes, Graders, Asphalt Paving)
Grader Operators
Pressure Vessel Welder
Paver and Asphalt Plant Operators
Traffic Accommodation Person
(Flag Persons)
Trade Helpers, Labourers
(excluding Flag persons)
[65]
The
inspector determined that based on the National Occupation Classification -
H324 Ironworkers description, the position of rodman was of an equivalent
nature to the ironworker position.
[66]
This
was a reasonable assessment. The NOC–H324 states that ironworkers:
Ironworkers fabricate, erect, hoist,
install, repair and service structural ironwork, precast concrete, concrete
reinforcing materials, curtain walls, ornamental iron and other metals
used in the construction of buildings, bridges, highways, dams and other
structures and equipment. They are employed by construction ironwork
contractors.
[Emphasis
added]
[67]
The
applicant submits that the respondents produced a document which indicated that
ironworkers (rebar/rodmen) are different than other ironworkers. This is the
Occupation Concordance Table for the National Construction Industry Wage Rate
Survey prepared by Statistic Canada. However, in this document, each of these
sub-groups of ironworkers are still classified as ironworkers under the NOC -
H324 so this has no bearing on the reasonableness of the inspector’s findings
as these sub-groups would continue to form part of the ironworker class under
the Fair Wage Schedule NB-East.
[68]
As
such, there was no error in the inspector’s assessment.
[69]
The
application for judicial review is dismissed with costs to the respondent.
JUDGMENT
[70]
IT IS
ORDERED that the
application for judicial review is dismissed with costs to the respondent.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Fair Wages and Hours of
Labour Act, RSC 1985, c L-4
|
2. “fair
wages” means such wages as are generally accepted as current for competent
workmen in the district in which the work is being performed for the
character or class of work in which those workmen are respectively engaged,
but shall in all cases be such wages as are fair and reasonable and shall in
no case be less than the minimum hourly rate of pay prescribed by or pursuant
to Part III of the Canada Labour Code;
. . .
3.(1) Every
contract made with the Government of Canada for construction, remodelling,
repair or demolition of any work is subject to the following conditions
respecting wages and hours:
(a) all
persons in the employ of the contractor, subcontractor or any other person
doing or contracting to do the whole or any part of the work contemplated by
the contract shall during the continuance of the work be paid fair wages;
|
2. « justes
salaires » Les salaires généralement réputés courants pour les ouvriers
qualifiés dans le district où le travail est exécuté, compte tenu de la
nature ou de la catégorie de travail à laquelle ces ouvriers sont
respectivement employés; cependant, ces salaires doivent dans tous les cas
être justes et convenables et ne peuvent en aucune circonstance être
inférieurs au salaire horaire minimum prescrit par la partie III du Code
canadien du travail ou sous le régime de cette partie.
. .
.
3.(1)
Tout contrat conclu avec le gouvernement du Canada pour la construction, la
restauration, la réparation ou la démolition de quelque ouvrage est assujetti
aux conditions suivantes concernant les salaires et heures de travail :
a)
toutes les personnes à l’emploi d’un entrepreneur, d’un sous-traitant ou de
tout autre individu qui exécute ou entreprend d’exécuter totalement ou
partiellement l’ouvrage prévu par le contrat doivent, durant la continuation
de l’ouvrage, toucher de justes salaires;
|
Fair Wages and Hours of
Labour Regulations, CRC c 1015
|
4.(1) Subject
to subsections (3) and (4), where there is a wage rate fixed, from time to
time, by or under an Act of the legislature of a province that is applicable
in the district in which the work is being performed for the character or
class of work, and that rate is generally accepted as current, the fair wage
shall be the provincial rate.
(2) Where
there is no wage rate fixed by provincial law for the district, the fair wage
shall be equivalent to the average of salaries paid in that district for the
character or class of work, based on statistical estimates produced by
Statistics Canada from an occupational survey of the construction sector.
(3) Where the
wage rates fixed by provincial law for a district are not generally accepted
as current, the fair wages shall be the wage rates determined under
subsection (2).
(4) In no case
shall the fair wage rate be less than the minimum hourly rate fixed pursuant
to Part III of the Canada Labour Code.
|
4.(1)
Sous réserve des paragraphes (3) et (4), le juste salaire payable pour un
travail dans un district donné est, le cas échéant, le taux prévu et
éventuellement modifié par la législation provinciale pour ce travail compte
tenu de sa nature ou catégorie, si ce taux est généralement accepté comme
étant le taux courant.
(2)
En l’absence de taux prévu par la législation de la province pour un district
donné, le juste salaire est équivalent à la moyenne des salaires payés dans
ce district, compte tenu de la nature ou catégorie de travail, obtenue à
partir des estimations statistiques de Statistique Canada qui sont établies
selon les enquêtes de professions pour le secteur de la construction.
(3) Lorsque,
pour un district donné, les taux de salaires prévus par la législation
provinciale ne sont pas généralement acceptés comme étant courants, les
justes salaires pour ce district sont ceux déterminés conformément au
paragraphe (2).
(4) Le juste
salaire ne doit en aucun cas être inférieur au salaire horaire minimum fixé
sous le régime de la partie III du Code canadien du travail.
|
Schedule Development Procedures - Fair
Wages and Hours of Labour Act and Regulations - OPD
871
|
(a) Use
of provincial or territorial schedules
When
construction industry wage rates are established for a province or territory
by or under provincial or territorial legislation, the Labour Regional Head,
in consultation with Labour Standards Operations at NHQ (LSOPS/NHQ), will
evaluate the provincial or territorial rates to determine whether these rates
will be adopted as federal construction contract wage rates.
(Regulation
4(1))
In general,
the evaluation will consider whether the provincial or territorial rates may
be realistically applied to each district in the region, and whether they are
generally accepted as current by the construction industry in the affected
region.
(Regulation
4(1))
More
specifically, the evaluation will be based on the results of an investigation
of the method by which the provincial or territorial rates were established,
and will consider at least:
whether both
union and non-union rates, or some combination, are represented;
whether the
rates reflect a basic hourly wage, or whether other elements such as
benefits, travel allowances, 'hardship pay' or bonuses are factored into the
rates;
whether rates
apply to districts within the province and which geographical areas of the
province are included; and
which sectors
of the construction industry are included.
When
provincial or territorial rates are not available, or, as a result of the
evaluation, have been found not to be suitable for use as federal
construction contract wage rates, the federal construction contract wage
rates shall be established according to statistical estimates produced by
Statistics Canada.
(Regulations 4(2)
& (3))
(b) Use
of statistical estimates from Statistics Canada
On behalf of
the Labour Regional Head, LSOPS/NHQ will, from time to time, evaluate
Statistics Canada occupational and wage data to decide whether any existing
data may be suitable for establishing Schedules of wage rates for federal
construction contracts.
Where no
suitable data exists, LSOPS/NHQ will negotiate with Statistics Canada for the
conduct of a specialized survey of wage rates in the construction industry.
|
a) Utilisation
des échelles provinciales ou territoriales
Si les taux de
salaires pour le secteur de la construction sont établis dans la législation
provinciale ou territoriale, ou en application de celle-ci, le chef régional
du travail, en consultation avec le personnel de Normes du travail,
Opérations (NTO), à l'administration centrale (AC), évaluera ces taux afin de
déterminer s'ils seront adoptés comme contrats fédéraux de construction.
(Par. 4(1) du
Règlement)
En
général, l'évaluation considérera si les taux provinciaux ou territoriaux
peuvent être appliqués de façon réaliste à chaque district de la région en
question et s'ils sont généralement acceptés comme étant les taux courants
dans le secteur de la construction de la région visée.
(Par. 4(1) du
Règlement)
Plus
précisément, l'évaluation sera basée sur les résultats d'une enquête menée
sur la méthode qui a été utilisée pour établir les taux provinciaux ou
territoriaux et en plus, elle considérera :
s'il y a
représentation des taux syndicaux et non syndicaux ou une combinaison de
ceux-ci;
si les taux
représentent un taux horaire de base ou si d'autres éléments, par exemple les
avantages sociaux, les allocations de voyages, les indemnités de difficulté
d'existence ou les primes, entrent en ligne de compte dans les taux;
si les taux
s'appliquent aux districts de la province en question et quels secteurs
géographiques de cette dernière sont inclus;
les segments
du secteur de la construction font parties de l'évaluation.
S'il n'y a pas
de taux provinciaux ou territoriaux ou si, à la suite de l'évaluation, on a
jugé qu'ils ne convenaient pas pour les contrats fédéraux de construction,
les taux de salaires pour ces contrats seront établis à partir des
estimations statistiques de Statistique Canada.
(Par. 4(2) et (3)
du Règlement)
b) Utilisation
des prévisions statistiques de Statistique Canada
Au
nom du chef régional du travail, NTO de l'AC, de temps en temps, entreprendra
une évaluation des données de Statistique Canada sur les métiers et les
salaires afin de déterminer si ces données peuvent être utilisées pour
établir les échelles des taux de salaires des contrats fédéraux de
construction.
En l'absence
de données convenables, NTO de l'AC négociera avec Statistique Canada la réalisation d'une enquête spécialisée sur les taux de
salaires du secteur de la construction.
|
Schedule of Wage Rates: New Brunswick - East Zone
|
Wage Rates as
of: August 13, 2007
Construction
trades workers on the federal government construction contract listed in this
appendix must be paid a regular hourly wage rate no less than the rate on
this schedule for the type of work they are doing under the contract.
The apprentice
wage rates are included into this schedule by reference to the Apprenticeship
and Occupational Certification Act (AOCA) of the province. Thus, where the
AOCA refers to a percentage of a corresponding journeyperson's wage for a
specific occupation, that percentage shall be applied against the wages
listed below.
|
Classification
of Labour
|
Fair Wage
Rate Per Hour Not Less Than
|
|
Electricians
|
$23.42
|
|
Plumbers
|
$22.94
|
|
Pipefitters,
Steamfitters
|
$29.32
|
|
Sheet
Metal Workers
|
$21.87
|
|
Ironworkers
|
$27.09
|
|
Carpenters
|
$17.02
|
|
Bricklayers
|
$21.69
|
|
Cement
Finishers
|
$17.07
|
|
Tilesetters
(including terrazo, marble setters)
|
$17.41
|
|
Drywall
Installers, Finishers, Lathers and Tapers
|
$18.62
|
|
Roofers
|
$19.84
|
|
Painters
|
$14.72
|
|
Heavy
Duty Equipment Mechanics
|
$18.68
|
|
Refrigeration
and Air Conditioning Mechanics
|
$21.36
|
|
Crane
Operators
|
$20.82
|
|
Truck
Drivers
|
$13.61
|
|
Operators
Heavy Equipment (excluding Cranes, Graders, Asphalt Paving)
|
$15.09
|
|
Grader
Operators
|
$13.24
|
|
Pressure
Vessel Welder
|
$20.70
|
|
Paver and
Asphalt Plant Operators
|
$13.29
|
|
Traffic
Accommodation Person (Flag Persons)
|
$9.51
|
|
Trade
Helpers, Labourers (excluding Flag persons)
|
$13.05
|
|
Fair wage
schedule prepared by: Labour Standards and Workplace Equity
Branch, Labour Program, Human Resources and Skills Development
Canada based on The National Construction Industry Wage Rate Survey
(2006) conducted by the Small Business and Special Surveys Division,
Statistics Canada.
|
|
Échelle des
justes salaires à partir du : 13 août 2007
Les
travailleurs de métiers de la construction, sur un contrat fédéral de
construction, doivent être payés à un taux de salaires non moindre que le
taux de cette échelle pour le type de travail effectué en vertu du contrat en
question.
Le
salaire des apprentis est inclus dans cette échelle en faisant référence à la
Loi sur l’apprentissage et la certification professionnelle (LACP) de la
province. Ainsi, là où la
LACP prescrit que le salaire d'un apprenti doit correspondre au pourcentage
du salaire d'un ouvrier qualifié de la même occupation, le calcul sera
effectué en utilisant les taux ci-dessous.
|
Catégorie
de main-d'oeuvre
|
taux de
juste salaire non inférieur à
|
|
Electriciens
|
$23.42
|
|
Plombiers
|
$22.94
|
|
Pipefitters,
Tuyauteurs monteurs de tuyaux à vapeur
|
$29.32
|
|
Toliers
(ouvriers de feuilles de métal)
|
$21.87
|
|
Monteurs de
charpentes métalliques et ferrailleurs
|
$27.09
|
|
Charpentiers-menuisiers
|
$17.02
|
|
Briqueteurs-macons
|
$21.69
|
|
Finisseurs
de béton ou ciment
|
$17.07
|
|
Poseurs de
carrelage (de céramique, de marbre, etc.)
|
$17.41
|
|
Latteurs et
poseurs de cloisons sèches – poseurs de lattis
|
$18.62
|
|
Couvreurs de
toits multicouches
|
$19.84
|
|
Peintres
|
$14.72
|
|
Mécanicien
de machinerie lourde
|
$18.68
|
|
Mécanicien
en réfrigération et climatisation
|
$21.36
|
|
Conducteurs/opérateurs
de grue
|
$20.82
|
|
Conducteurs
de camions
|
$13.61
|
|
Conducteurs-machin.
lourde sauf grue niveleuse, pavage et asphalte)
|
$15.09
|
|
Conducteurs
de niveleuse (grader)
|
$13.24
|
|
Soudeurs de
réservoirs pour fluides sous-pression
|
$20.70
|
|
Conducteurs
de machinerie de pavage et d'asphaltage
|
$13.29
|
|
Ouvrier
chargé de diriger la circulation
|
$9.51
|
|
Manoeuvres
(sauf circul.)
|
$13.05
|
|
L’échelle
des justes salaires préparée par : Normes de travail et équité en milieu de
travail, Programme du travail, Ressources humaines et Développement
des compétences Canada basée sur l’Enquête nationale sur les taux salariaux
dans le secteur de la construction (2006) faite par la Division des petites
entreprises et enquêtes spéciales, Statistique Canada.
|
|
Email this Content