November 21, 2012

Unions granted access to some foreign worker documents

B.C. construction unions have been granted limited access to the federal government records of Chinese temporary foreign workers, who were given permission to work at a coal mine near Tumbler Ridge.

“We need to see what HD Mining did and how HD Mining was awarded LMOs (Labour Market Opinions),” said Charles Gordon, who represented the Construction and Specialized Workers’ Union (CSWU) and the International Union of Operating Engineers (IUOE) at a hearing in Federal Court in Vancouver on Nov. 16.

“Our understanding, from the limited amount of information we got on the public record, is that bulk LMOs were issued to HD Mining and another company before HD mining was incorporated and there were no names attached. Until we see the record, we are just shooting in the dark.”

Justice Douglas R. Campbell delayed a decision on whether or not the unions have the right to gain full access to records relating to about 300 Chinese nationals, who were issued visas at the Canadian embassy in Beijing to work at the $300 million Murray River project.

Instead, the judge brokered a compromise, which involved Gordon standing down on this matter, while Department of Justice lawyer Lorne Lachance voluntarily provides the unions with some confidential documents by Nov. 19.

“Before we can stand this matter down and hold discussions, we need some assurance that more temporary foreign workers will not arrive in Canada on the impugned LMOs,” said Gordon.

About 60 Chinese TFWs are scheduled to arrive at the underground mine in mid-December.

An initial group of about 17 TFWs have already arrived to start work on the extraction of bulk samples

The unions filed an application in federal court to overturn the decision by Human Resources and Skills Development Canada to issue LMOs to HD Mining International Ltd.

The unions claim the LMOs are seriously flawed because they failed to ensure that no Canadians were available to do the work and that the TFWs were offered wages far below prevailing rates.

Crown lawyer Lorne Lachance said a broad examination of all LMOs would be “a fishing expedition” due to the logistics of sorting through thousands of applications for numerous occupational categories.

For this reason, Lachance argued that the unions must identify an individual person, who has been affected by the LMOs, before they can launch an application for a judicial review.

Justice Campbell told Lachance that in reality there is no difference whether or not the union takes legal action on its own or if the union brings a miner to court to protect his or her interest.

“We are not fishing,” he said. “We are on an adventure to see if there is a problem with these LMOs. Nobody knows who has been directly impacted by each LMO and nobody knows who has been approved. This is why the unions want to see the record, to find out if there is a problem.”

Next, the Crown argued unions don’t have standing because they don’t have a direct interest or have not been directly impacted by the decision to grant permission for TFWs to work at the mine. Gordon argued the LMOs directly affected union members, who have been denied access to jobs at the mine, but are qualified to do the work.

He said the LMOs also affected the union as an organization, since they hold collective bargaining rights for other mines in B.C., including one in Tumbler Ridge.

The LMOs are allowing hundreds of TFWs to enter into the local labour market, which directly impacts the unions’ most basic functions, such as organizing new workplaces, negotiating collective agreements, collecting dues and advocating on behalf of their members.

Finally, Lachance argued that the unions don’t have the legal status or capacity to advocate on public policy issues, unless it involves the constitution.

Gordon said the Crown’s position was objectionable because it suggests unions are limited in their ability to appear in court and have standing outside of collective bargaining.

He also accused the Crown of siding with HD Mining International.

In response, HD Mining lawyer Alex Stojicevic defended the Crown’s position.

He argued the company went through an entirely legal process to obtain the LMOs and the workers followed all the necessary procedures.

An LMO is an opinion provided by HRSDC to Citizenship and Immigration Canada, which assesses the likely impact that hiring the requested TFWs may have on the Canadian labour market.

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