December 19, 2012
Judge allows Chinese workers for B.C. mine
A Vancouver-based mining company successfully defended its right in federal court to employ Chinese nationals for the construction of a $300 million mine in northeastern B.C., but there could still be an investigation into the process that granted the foreign workers permission to enter Canada.
“This judgment is a massive victory for HD Mining,” said HD Mining chair Peng Gui Yan.
“We have been waiting for a court to say that we have done nothing wrong and this decision does exactly that. We hope it will cause the unions to seriously question why they are bringing these proceedings.”
HD Mining International won the first round of a legal battle in Vancouver Federal Court on Dec. 14, when Justice James Russell dismissed a motion by the Construction and Specialized Workers’ Union (CSWU) and the International Union of Operating Engineers (IOUE) Local 115.
The unions argued that the Labour Market Opinions (LMOs) issued to HD Mining by Human Resources and Skills Development Canada (HRSDC) failed to ensure there were no Canadians available do the work.
They also claim that the Temporary Foreign Workers (TFWs) are being offered wages far below prevailing rates.
The unions made an injunction application to stop additional TFWs from coming to the Murray River mine project, near Tumbler Ridge, until a judicial review was completed.
“It is the company’s overall position that we have become a pawn in a larger issue relating to problems with the temporary foreign worker program,” said HD Mining lawyer Alex Stojicevic in court on Dec. 12.
“The unions should not be allowed to damage HD Mining’s business in this way.”
In his decision, Justice Campbell said HD Mining simply used and met the requirements of the TFW program as it presently exists.
He said HD Mining is not responsible for any problems with the TFW program or any reviewable errors made by HRSDC when the LMOs were issued.
An LMO is an opinion provided by HRSDC to Citizenship and Immigration Canada (CIC), which assesses the impact that hiring the TFWs may have on the Canadian labour market.
“I also think the public also has an interest in ensuring that individuals, who have been authorized to come to Canada, are not left in legal and professional limbo through no fault of their own and who may well not learn of the situation they face until they make the journey and arrive at the port of entry,” said Justice Russell in his decision.
A group of 15 TFWs is already working at the underground mine.
Another group of 67 TFWs is scheduled to arrive any day to start construction of the decline and shaft, as well as start bulk sampling.
As of Dec. 10, CIC at the Canadian embassy in Beijing had issued 194 visas to Chinese nationals to work at the Murray River project.
Stojicevic argued HD Mining is making a large investment that will have significant positive economic spinoffs, including the creation of other jobs for Canadians.
He provided evidence that significant costs, financial harm and disruptions would occur if the injunction was granted.
Union lawyer Charles Gordon based his argument on an affidavit filed by Brian Cochrane, business manager of the IUOE, Local 115, which said there are currently 474 workers available in B.C., including 100 in the northeast region.
Gordon said the unions will suffer irreparable damage because hundreds of TFWs are being paid lower rates, which will depress the local labour market.
Judge Russell said this argument is not clear and is speculative because it doesn’t include “any evidence from individual members or miners establishing that they are able, willing and qualified for the jobs in question.”
More importantly, he said the unions have provided no direct evidence from anyone who might be interested in the jobs, so the court cannot assess irreparable harm to the union, their members or the labour market.
According to Justice Russell, the evidence presented on prevailing wages is conjecture or personal opinion because it was not presented by a mining expert or other qualified witnesses.
For this reason, the evidence on prevailing wage rates is conflicting.
Therefore, it is not possible to determine the impact on the Canadian labour market if the injunction isn’t granted.
In addition, the unions claim an HRSDC officer made errors are not convincing or obvious.
So, further review will be needed to determine if an unreasonable error was made that requires the LMOs to be quashed.
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