Managing employees is a big part of governance in a First Nation administration, organization or company.

Many believe that if the work is on reserve or provides services to First Nations people, it falls under the federal jurisdiction of the Canada Labour Code.

But a recent case from the Supreme Court of Canada has clearly said, “Not so fast!”.

In the case NIL/TU, O Child and Family Services Society v. B.C. Government and Services Employees’ Union (2010), the society provides “culturally appropriate” child welfare services to their seven member communities with provincial accountability and federal funding.

The employees wanted to negotiate a collective agreement. The union they selected applied to the BC Labour Relations Board to be certified. But the society objected, arguing that it fell under federal jurisdiction.

The case went all the way to the BC Court of Appeal, which decided that the labour relations fell under provincial jurisdiction. The society appealed to the Supreme Court.

The Court, in deciding the case, laid out a two-part test. The first part was a “functional test”. It looked at the operations of the society to decide if it came under federal jurisdiction.

Its child protection services were under provincial legislation. Its main activities were ruled by BC law and were overseen by provincial officials. As a result, the Court determined the society fell under provincial jurisdiction.

The Court would only move to part two of the test if part one was inconclusive. But the first part of the test was clear. If it had looked further, the Court would have had to decide if the provincial regulation of the labour relations would impair the “core” of the federal power.

Many of our nations’ organizations may be operating under the Canada Labour Code when they actually fall under the BC Employment Standards Act. This can make a difference when an employer fires someone or has a complaint filed against it.

One big difference is that the Labour Code has the ability to restore someone to his or her position if the firing was unjust, but the BC Act does not do that. It is worth investigating to make sure contracts and policies are correct.

Note that this case does not affect the taxation of First Nations people who work on reserve.

Nicole Hajash is the governance coordinator at Naut’sa mawt Tribal Council. Contact her if you have any questions about the case mentioned in the article or if you would like a referral to a law firm that can review employment jurisdiction issues. Email her at nicoleh@nautsamawt.com