November 14, 2012

Case management conference held for challenge of Chinese Temporary Foreign Worker permits

A federal legal challenge by two construction unions is threatening to block the importation of several hundred Chinese temporary foreign workers to a coal mine in northern B.C. and expose the process that granted them permission for employment in Canada.

“It is our position that the most pressing issue right now is the possibility that a large number of foreign nationals will arrive in Canada and take jobs away from Canadians,” said Charles Gordon, lawyer for the Construction and Specialized Workers’ Union (CSWU) and the International Union of Operating Engineers (IUOE)

“We have a process that the minister said is clearly flawed. The harm to Canadian workers will increase as more foreign nationals are admitted to Canada under the flawed Labour Market Opinions (LMO). In our view, any further arrivals of foreign nationals should not be allowed.”

A case management conference held in Vancouver on Nov. 14 has revealed that between 200 and 300 Chinese nationals have been issued visas at the Canadian embassy in Beijing to work at an underground coal mine near Tumbler Ridge. An initial group of about 17 TFWs have arrived to start work on the extraction of bulk samples at the $300 million Murray River project.

The unions argue the LMOs issued to HD Mining International Limited by Human Resources and Skills Development Canada (HRSDC) for all these TFWs are seriously flawed and should be cancelled. In particular, they claim that the LMOs failed to ensure there were no Canadians to do the work and that the TFWs were offered wages far below prevailing rates.

In response, Justice Douglas R. Campbell is speeding up court proceedings to relieve the company of the burden of on-going litigation and ensure Canadian workers are not harmed by the arrival of more Chinese nationals.

More importantly, Justice Campbell has scheduled a hearing for 2 p.m. on Nov. 16 to determine if the unions have the ability to apply for a judicial review, as they were not a party in the LMO application process.

For this reason, Alex Stojicevic, the lawyer representing HD Mining International, said the unions’ application for an injunction is absurd.

“HD Mining was issued the LMOs and, from the company’s perspective, they went through an entirely legal process, in which the workers followed procedure to obtain work permits,” he said.

“The process followed was fair and took everything into account.”

Stojicevic said individual workers have incurred costs to apply for the visas and work permits. Further costs would be incurred if these documents were deemed invalid and they have to re-apply.

“Any delay could be catastrophic and any amount of injunctive relief is massively prejudicial to the company and individual workers,” he said.

“The only real harm will be to the project, where Canadians who are undertaking the environmental assessment or working for subcontractors will be harmed.”

If the judge decides the union has standing in this case, it will be necessary to publicly disclose all the records of HD Mining’s LMO applications.

As a result of the court action taken by the B.C. construction unions, HRSDC minister Diane Finley said the federal government was not satisfied with the process that led to permission for hundreds of foreign workers to gain employment at the Murray River project.

In fact, Finley said the investigation into the Chinese TFWs is directly responsible for the federal government launching a new initiative to review the Temporary Foreign Worker Program.

Despite this fact, Crown lawyer Lorne Lachine said the statement did not mean the government was considering the cancellation of the LMOs.

“We are not making such a concession at this time,” he said.

“The ministers comments were not conceding that there were any errors. The LMOs and visas that were issued remain valid.”

About 60 more workers are scheduled to arrive in mid-December, but could arrive earlier. The rest of the TFWs have been issued visas that expire between May 31, 2014 and May 31, 2015.

This means they can arrive at any time before these dates.

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