November 26, 2012

Company looks for clarity on foreign workers

A Vancouver company is asking the federal government for clarification on the status of the Chinese nationals it is hiring to work at a coal mine in northeastern B.C.

“We regret that we have to ask these questions of you, but given that you made your statement after the litigation was commenced, and given the attention it has received and is receiving in the court proceedings, we feel we have no other choice but to do so,” said Penggui Yan, chairman of HD Mining International Limited to Minister of Human Resources and Skills Development Canada (HRSDC) Diane Finley in a letter submitted to Federal Court on Nov. 20.

“As I am sure you are aware, we have very considerable business, financial and other interests at stake in these matters.”

HD Mining has started construction on the first stage of the proposed Murray River project, which is a $300 million coal mine near Tumbler Ridge.

The Canadian embassy in Beijing has issued visas to about 300 Chinese nationals to work at the underground mine, under the federal temporary foreign worker (TFW) program.

The Construction and Specialized Workers’ Union and the International Union of Operating Engineers launched a legal challenge in Federal Court earlier this month to revoke the permission granted by HRSDC for these workers to enter Canada.

The unions argue that the Labour Market Opinions issued to HD Mining are seriously flawed.

They claim that the LMOs are flawed because they failed to ensure Canadians were hired first to do the work and the TFWs are being offered wages far below prevailing rates.

Finley made a statement on Nov. 8, shortly after the legal challenge began, which said the federal government was not satisfied with the process that led to permission being granted to hundreds of foreign workers at the Murray River project.

In fact, Finley made a direct link between the investigation into the Chinese TFWs being imported by HD Mining and the Conservative government launching a new review of the Federal TFW Program.

In response to references to this statement during court proceedings, Michael Xiao, overseas department manager for Huiyong Holdings Group, filed an affidavit on Nov. 20 with Yan’s letter.

“On review of your statement, it appears to us that there is a lack of clarity as to the meaning of your comments,” said Yan in the letter dated Nov. 17.

“In particular, your statement is somewhat ambiguous as to whether you are suggesting there had been any errors or irregularities in your ministry’s decision to issue LMOs to our company, or whether you were expressing more general concerns with the existing temporary foreign worker program and the related LMO process.”

In addition, Yan said HD Mining is finding it difficult to reconcile Finley’s comments with statements made by HRSDC officials, who say the company has followed existing policy and procedure during the process that led to the LMOs being issued.

For this reason, Yan wants to know if Finley was personally involved in the review of the LMOs and if she is aware of any error or irregularity in the processing of the LMO applications.

Yan also said HD Mining would need to get a response by Nov. 19, so the new statement could become part of the final arguments on Nov. 20 about whether the unions should be granted standing to proceed with their application for a judicial review.

HD Mining International Ltd. is a private corporation, which was formed by two majority partners, Huiyong Holdings (BC) Ltd. (55 per cent) and Canadian Dehua International Mines Group Inc. (40 per cent).

Huiyong Holding Group, the parent company of Huiyong Holdings (BC) Ltd., is a private Chinese company, which operates nine mines in the country.

Union lawyer Charles Gordon objected to Xiao’s affidavit because the evidence was presented after final submissions were made to the court.

He said the letter is clearly an attempt by HD Mining to get Finley to provide a statement to be used in court proceedings. This could require Finley being called as a witness for cross-examination.

In another turn of events, Crown lawyer Lorne Lachance refused to give the unions a confidential review of documents relating to about 60 Chinese temporary foreign workers, who are scheduled to arrive at the Murray River project in mid-December.

Justice Douglas R. Campbell tried to facilitate a compromise resolution between the construction unions and the federal government by asking the Crown to share some information on these Chinese nationals.

In return, Gordon agreed to stand down on the matter, which involves gaining full access to the confidential records of the Chinese TFWs.

Justice Campbell is scheduled to make a final decision on the issue of the unions’ standing in federal court in Vancouver on Nov. 22.

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