The B.C. Court of Appeal has ruled against Mexico and its Vancouver consulate in a dispute involving seasonal farm workers.
The province's Labour Relations Board last year found Mexican officials improperly interfered in farm workers' union business.
Mexico took the matter to court, arguing it has state immunity and the board acted outside its jurisdiction. A B.C. Supreme Court judge disagreed, ruling the board was entitled to determine whether Mexico interfered in a de-certification vote.
The appeal court concurred in a unanimous ruling posted to its website.
"I am not persuaded that the act of state doctrine has any application to the facts of this case. The board did no more than examine Mexico's conduct for the purpose of exercising its remedial powers under the law of British Columbia, in respect of the rights of the employees, the union and the employer in British Columbia," Justice David Harris wrote.
"… The board was doing no more than vindicating the rights of persons in British Columbia. I do not see that the act of state doctrine, however articulated, has any application to the case before us."
Seasonal workers at a Mission, B.C., farm voted 36-35 in favour of union certification in August, 2008. They joined the United Food and Commercial Workers International Union, Local 1518.
In March, 2011, an anonymous fax was sent to one of the union's national representatives. It was a copy of a document in a worker's file in Mexico. It said the worker would not be permitted to return to Canada for another season because he had been involved in union activities.
One month later, a different worker submitted an application to the board to de-certify the union. The day before the de-certification vote, the union filed a complaint with the LRB accusing Mexico of interference. The vote was held and the results were sealed.
The union told the board that Mexican officials had interfered in violation of the Labour Relations Code. Three former Vancouver consulate employees told the board that senior officials held strong anti-union views.
The board found that the interference would make the farm workers unlikely to express their "true wishes" in the vote.
A lawyer representing the Mexican government told the appeal court the board had assumed jurisdiction over Mexico, an assertion that was rejected.
"I do not agree that the board exercised jurisdiction over Mexico when it considered whether Mexico's conduct amounted to improper interference with the employees of the union for the purpose of exercising its discretion to refuse to cancel the union's certification," said the judgment delivered late last week.
Jason Mann, a union spokesman, said in an interview that the seasonal workers at the farm – Sidhu & Sons Nursery Ltd. – are still in the union. He referred further questions to the union's lawyers.
Brett Matthews, the lawyer who represented the union at the board, said the ruling might have greater implications for international law than labour law.
Mr. Matthews said Mexican officials appeared to be concerned Canadian businesses would look for seasonal workers elsewhere.
"…The fear from the consulate – at least this is what the consular employees were telling us – is that employers will say, 'These guys are too much trouble. We're going to go to Guatemala, or Honduras, or one of these other places where they're not going to join unions.'"
A spokeswoman for Mexico's Vancouver consulate wrote in a statement that the country respects labour rights and promotes their observance domestically and internationally.
"This includes the worker's right to freely decide if he or she will join a union," she wrote.
The spokeswoman added that Mexican consulates in Canada help the almost 20,000 Mexicans in the seasonal agricultural worker program every year.