December 5, 2012
Federal court judge orders TFW documents released to public
A federal court judge has released confidential documents to the public that show a Vancouver mining company required Mandarin language skills for Chinese temporary foreign workers (TFWs) who were offered jobs for the construction of an underground coal mine in northern BC.
"It's a victory, but it's also the next step in the process," said Brian Cochrane, business manager of the International Union of Operating Engineers (IUOE), local 115. "It's amazing that we have had to deal with such a high level of resistance to obtain the LMOs (Labour Market Opinions). However, the clock is still ticking."
In Vancouver federal court today, Justice Douglas R. Campbell ordered the minister of HRSDC to hand over the LMOs and all the supporting materials submitted by HD Mining International to hire 201 Chinese nationals to work at the $300 million Murray River Project, near Tumbler Ridge BC.
An LMO is an opinion provided by HRSDC to Citizenship and Immigration Canada, which assesses the impact that hiring the TFWs may have on the Canadian labour market.
Justice Campbell said HRSDC and HD Mining “have joined in taking a very hard line on the issue of production,” or handing over confidential documents.
For this reason, an attempt was made to find some common ground and allow the free-flow of information, by conducting in camera meetings on Nov. 28 and Dec. 5.
Now that a court order has been issued, the confidential documents discussed in these sessions are part of the public record.
Currently, only one LMO application has been made public, which seeks permission to bring in 65 foreign workers in the position of underground mine operator.
The educational requirements are secondary school, and no form of certification, licensing or registration is required for any of the jobs. The company claims to need workers with 3+ years of underground coal mining experience and the pay is given as $35 per hour.
The LMO application also indicates that Chinese will be spoken in a team environment and the new employees will receive English language training as part of a TFW transition plan. However, this plan was not part of the documents provided to union lawyers for the in camera meetings.
Justice Campbell said the TFW Transition plan must also be produced by HD Mining, because it is an integral part of each LMO application.
In fact, the lack of a requirement for English for TFWs in underground mining occupations, raises concerns regarding HD Mining’s ability to attract, train and transition Canadian workers.
The unions claim the LMOs issued to HD Mining failed to ensure there were no Canadians to do the work and that the workers were offered wages far below prevailing rates.
HD Mining said English language training will be provide, that interpreters and English speaking foremen will facilitate on the job training and transfer to Canadians.
Throughout the court proceedings, HD Mining has insisted that Mandarin was not specified or advertised as a requirement for employment at the mine.
Other documents in the public record include ten LMO Confirmations, which cover the approval of different jobs for a total of 201 positions. The confirmations ware all given on the same day, April 25, 2012, and by the same HRSDC officer.
In addition, there is Bulk Request Assessment Recommendation, which provides the reasons of the HRSDC officer for approving the MMOs requested by HD Mining.
In this case, the officer found that the wages being offered by HD Mining meet or exceed current prevailing wage rates.
Union lawyers strongly disagree with this conclusion. For example, the HRSDC officer found that HD Mining’s offer of $32 per hour for the position of heavy duty mechanic exceeds current prevailing wage offer of $29.58 per hour.
In fact, a heavy duty mechanic working at the Peace River Coal Mine, which is also in Tumbler Ridge, pays $42 per hour plus benefits and the work is above ground.
At the Grande Cache Coal Mine in Alberta, which has both underground and above-ground work, a heavy duty mechanic is paid $42.43 an hour. All underground work attracts a premium of $ 3 per hour, which is set to rise to $3.50 per hour on April 1, 2013.
The IUOE and the Construction and Specialized Workers’ Union (CSWU) were granted public interest standing to submit an application for judicial review by Justice Campbell on Nov. 22.
Shortly after release of the judgment of Justice Campbell granting the unions access to documents, HD Mining’s appeal of a prior decision recognizing the unions’ right to bring the case was dismissed by the Federal Court of Appeal.
HD Mining was ordered to pay costs to the Unions in that appeal, which has cleared the way for the Unions to proceed with their legal challenge.
The Building Trades unions return to Federal Court on Dec. 12 for a hearing on their injunction application to prevent additional TFWs from coming to Canada until the judicial review is finished. The judicial review will ensure accountability in decision-making at HRSDC, because it gives the unions the right to know if HRSDC made errors issuing LMOs to HD Mining.
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