Federal Court dismisses union challenge against B.C. foreign workers
VANCOUVER – Two unions may have lost a Federal Court battle disputing a mining company’s plan to bring in 201 temporary foreign workers from China, but they’re celebrating the spotlight they’ve shone on the problems associated with the employment program.
HD Mining International Ltd had come under increased scrutiny after arguing there were no Canadians qualified to do specialized work at a planned underground coal mine in northeast British Columbia. In its successful application for temporary foreign workers it had said the ability to speak Mandarin was an essential requirement of the job.
Two unions _ the Construction and Specialized Workers’ Union, Local 1611, and International Union of Operating Engineers, Local 115 _ were granted the right to seek a judicial review of the process used to grant the foreign worker permits for the Chinese miners.
They challenged in court the labour market opinions _ documents that confirm a skilled labour shortage _ issued by an official from Human Resources and Skills Development Canada in April 2012.
But Federal Court Justice Russel Zinn dismissed on Tuesday the application by the unions, which argued the federal official was fettered by supervisors who wanted a favourable ruling and concluded hiring the workers would not hurt the job prospects of Canadians.
“My instant reaction is I’m disappointed with the ruling because there’s not a doubt in my mind, I think, that what happened with this particular case was not in the interest of Canadians,” said Brian Cochrane, business manager of the International Union of Operating Engineers, Local 115.
“It didn’t fit the intent of the temporary foreign worker program, but, you know, we respect the decision of the courts, and really we have to view as what a success this story’s been in highlighting to Canadians the problems with the program.”
Specifically, those problems included the Mandarin-language requirement for applicants and the extent to which the company advertised the jobs in an attempt to hire qualified Canadian workers, he said.
Cochrane said the court challenge raised issues related to wages, noting HD Mining was willing to pay foreign workers 30 to 35 per cent less than market rates.
He pointed to an announcement by the Conservative government last month to overhaul the temporary foreign worker program.
In that announcement, Immigration Minister Jason Kenney halted what’s known as the 15 per cent rule, a policy that allowed employers to pay temporary foreign workers up to 15 per cent below median wages, if that’s what they were paying Canadians.
The Conservatives also stalled a program that allowed companies to fast track workers from outside Canada through what’s known as an accelerated labour-market opinion.
The overhaul also includes stricter application rules, new fees for employers and a promise of stricter enforcement by the government.
There’s been a lot of successes, I think, in respect to shining the light of day onto what’s going on within the country,” Cochrane said.
Meanwhile, Penggui Yan, HD Mining’s chairman, said Tuesday’s court decision vindicated the company, but at a great cost, while raising questions in the international investment community.
“During these months of litigation, the unions made many allegations _ both in court and the media _ which we frankly found appalling,” he said in a statement.
“We knew this litigation was driven by a political agenda and we knew we needed to wait for a Canadian court to reject these claims. It has taken a long time, but today is that day.”
Jan O’Driscoll, spokesman for Diane Finley, federal minister of human resources and skills development, said the government respects the court’s decision.
“Our government is taking decisive action for Canadian workers by reforming the temporary foreign worker program and making sure that Canadians workers are always put first,” he said.
However, the B.C. Federation of Labour called on the federal government to go even further in its reforms, saying the deck has been stacked against Canadians by governments that are meant to represent them.
In fact, federation president Jim Sinclair said in a statement that the federal government’s recently announced changes wouldn’t have prevented the mining company’s application to import temporary foreign workers.
“Canadians want to know that they will have access to these jobs,” he added. “Canadian also support continued immigration to Canada, not the recipe for exploitation that the temporary foreign worker program has become.”
Known as the Murray River project, the proposed mine in B.C. is located 12.5 kilometres southeast of Tumbler Ridge.
The company has estimated the mine’s production at 6-million tonnes of steelmaking coal over 30 years.
With a capital cost of $300 million, the mine, once operating, would create about $90 million in government revenue and employ 600 people directly and another 700, indirectly, the company states.
HD Mining says it has already invested more than $50 million in the project.
According to the Federal Court ruling, HD Mining applied for its labour market opinions on March 2, 2012, and March 15, 2012, because the employees were needed to work on the mine’s construction and complete bulk sampling.
The Human Resources and Skills Development Canada officer issued 10 positive labour market opinions on April 25, 2012.
The controlling shareholder of HD Mining is Huiyong Holdings (BC) Ltd. Canadian Dehua International Mines Group Inc. owns 40 per cent of the shares.