January 23, 2013
Vancouver-based mining company turning over Canadian resumes
A Vancouver mining company is handing over the resumes of Canadians who were rejected for jobs at a coal mine in northeastern B.C., where only temporary foreign workers have been hired.
“We don’t agree that the minster (Diane Finley) has the authority to do this and we have a real concern for the privacy rights of the people who applied for jobs,” said HD Mining lawyer Alex Stojicevic.
“These people did not know one year ago that a third-party would make these documents available to become part of the public record. The documents were submitted with some expectation of privacy”
Federal Court Justice Michael Manson ordered the Minister for Human Resources and Services Development Canada (HRSDC) Diane Finley on Jan. 16 to “further consider the scope and nature of her compliance” with a court order to compel the disclosure of confidential documents from HD Mining International.
HD Mining received 300 applications from Canadian citizens or permanent residents to work on the $300 million first phase of the Murray River Project, near Tumbler Ridge B.C. The company did not hire one of these applicants, claiming they were not qualified.
Two B.C. construction unions requested access to the resumés of the Canadian applicants for a judicial review of the permits that were granted to HD Mining to import about 200 Chinese coal miners, under the Temporary Foreign Worker (TFW) program.
“The ruling is that it is within the power of the minister to revoke Labour Market Opinions (LMOs), at least until up to the time that the work permits are issued,” said Charles Gordon.
Gordon is a lawyer for the Construction and Specialized Workers’ Union (CSWU) and the International Union of Operating Engineers (IOUE).
“He (the judge) is essentially inviting the minister to take further steps to compel production of the documents from HD Mining. If this is not done, the judge hearing the application for leave may infer that there is an adverse inference.”
In response, Stojicevic said HD Mining will hand over the resumés on Jan. 21 or Jan. 22.
However, he maintained that the federal court doesn’t have the authority to ask for the documents.
Justice Douglas R. Campbell ordered HRSDC on Dec. 7 to hand over the Labour Market Opinions (LMOs) and supporting materials submitted by HD Mining to hire 201 Chinese TFWs.
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.
In addition, Campbell asked for any documents that HD Mining possesses that form the basis of attestations the company made to HRSDC in its LMO applications, but were not part of the application.
For this reason, Stojicevic said the order does not include the resumés of Canadian applicants.
HD Mining initially released 600 pages of material, but refused several times to give up other documents.
Stojicevic also argued that the resumés are not relevant to the case because they were not part of the decision making process by the HRSDC officer, who issued the LMOs.
According to Gordon, Judge Manson said Finley had the power to suspend the LMOs used to grant work permits to the TFWs, if HD Mining refused to produce the documents.
“The LMOs have expired and are used up,” he said.
“The minister may have done something earlier, but in terms of pulling them now, that is ridiculous.”
Judge Manson also said that Finley’s failure to push for disclosure “may draw an “adverse inference” by another judge who will hear the unions’ judicial review application.
The unions submitted the final documents to the federal court on Jan. 21 for a judicial review, which would determine if HRSDC made errors issuing LMOs to HD Mining.
The unions claim the LMOs issued to HD Mining failed to ensure there were no Canadians to do the work, while the TFWs were offered wages far below prevailing rates.
Stojicevic argued there is no scope for a judicial review because the unions have not been able to prove that any reviewable error was made by the HRSDC officer, who issued the LMOs to HD Mining.
He said HD Mining has not done anything wrong.
The company simply used and met the requirements of the TFW program as it presently exists.
“The fact that this case is setting precedents about the ability of the government to properly monitor and regulate the Temporary Foreign Worker program is evidence itself that this needs a full review immediately,” said Brian Cochrane, business Manager of the IUOE.
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