November 21, 2012

Unions granted standing in Chinese foreign worker case

Two B.C. construction unions earned the right in federal court to review the process that granted permission to a Vancouver mining company to import Chinese temporary foreign workers (TFWs) for a proposed project near Tumbler Ridge.

“It’s now at least the first step in the next leg of the journey,” said Brian Cochrane, business manager of the International Union of Operating Engineers (IUOE), local 115.

“We are glad to see that the judge has given us public interest standing. If not direct standing, public interest standing will work for us.”

Justice Douglas R. Campbell granted public interest standing to the IUOE and the Construction and Specialized Workers’ Union (CSWU) in Vancouver federal court on Nov. 22., to ensure accountability in decision-making at Human Resources and Skills Development Canada (HRSDC).

“At the centre of the present challenge is the serious and important issue of the legality of actions of government officials tasked with making assessments that concern both human resources and immigration matters in Canada,” said Justice Campbell, who decided the unions have a right to know if HRSDC made errors issuing Labour Market Opinions (LMOs) to HD Mining International Ltd. for about 300 Chinese nationals.

In response, HD Mining filed an appeal on Nov. 23.

It said the minister of HRSDC, Diane Finley, made a public statement shortly after litigation began, which had an impact on the court proceedings and the decision to grant the unions standing.

HD Mining also said Finley declined to clarify her statement about the LMOs.

Citizenship and Immigration Canada (CIC) at the Canadian embassy in Beijing used the LMOs to issue visas for the Chinese nationals to work at the $300 million Murray River project.

An LMO is an opinion provided by HRSDC to CIC, which assesses the impact that hiring the TFWs may have on the Canadian labour market.

The unions claim the LMOs issued to HD Mining failed to ensure that there were no Canadians available to do the work and that the workers were offered wages far below prevailing rates.

Court documents revealed that HD Mining advertised for various positions that required the ability to speak Mandarin as a qualification.

Despite this, HD Mining claims in its appeal that none of the advertisements said Mandarin was required and that they made no mention of Mandarin at all.

Campbell said the application for review needs to be expedited because 60 TFWs are scheduled to arrive at the Murray River project in mid-December.

The unions’ fear that should this matter not proceed in a timely manner, subsequent challenges to HRSDC decision making would be moot.

A judge will be assigned to the case immediately, so the unions can enter an application for a judicial review before Dec . 10.

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.

HRSDC has been ordered to provide the LMOs and records of the TFWs to the court in less than a month from the date of the judge’s decision.

If this isn’t possible, the judge said the court will gain access to the records with an injunction. In his decision, the judge said the unions could not get standing to bring a judicial review on the basis of private interest because there was not enough evidence to show they are being directly affected by the HRSDC decision to issue the LMOs.

Union Lawyer Charles Gordon argued the unions are being directly impacted by the LMOs because qualified members are being denied training and jobs at the mine.

An affidavit filed by Cochrane said the IUOE Local 115 currently has 474 people available to work in B.C., including 100 in the northeast region.

According to court documents, HD Mining received 300 applications from suitable Canadian citizens or permanent residents.

Gordon said the LMOs also affected the union as an organization, as hundreds of TFWs are being allowed to enter the local labour market.

The unions hold collective bargaining rights for other mines in B.C., including one in Tumbler Ridge.

Justice Campbell said it was not necessary for the unions to find individual Canadian workers, who were personally affected by a specific LMO and have them challenge the HRSDC decisions.

He accepted the unions argument that individual workers face financial and other resource barriers, which make it difficult to bring a legal challenge against the Canadian government and several mining companies.

In addition, individual miners are unlikely to attach their name to a challenge against possible future employers.

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