March 6, 2013
Judicial review granted in Chinese temporary foreign worker case
Two construction unions are launching a judicial review in Federal Court into the government's decision to allow HD Mining International to hire foreign workers at a coal mine in northeastern BC., as the company defends its plan to use a long wall mining method.
“What this means is that for the first time in Canada, the cornerstone of the Temporary Foreign Worker (TFW) Program will be reviewed in a public court hearing with critical federal government documents open to full scrutiny,” said Charles Gordon lawyer for the Construction and Specialized Workers’ Union and the International Union of Operating Engineers.
“This clearly means that if the unions’ arguments are accepted that the LMOs (Labour Market Opinions) that allowed HD Mining to bring Chinese workers to Canada were flawed, they could be set aside by the court.”
The unions recently received approval in Federal Court for a judicial review, which will take place between April 9 and 11.
The review will investigate the process within Human Resources and Services Development Canada (HRSDC) that granted HD Mining permission to employ Chinese nationals at the $300 million Murray River coal mine, near Tumbler Ridge, B.C.
In particular, the review will ensure the accountability of decisions that are made by officials in the temporary foreign worker program, by determining if HRSDC made errors issuing LMOs to HD Mining.
An LMO is an opinion provided by HRSDC to Citizenship and Immigration Canada (CIC), which assesses the likely impact that hiring the requested TFWs may have on the Canadian labour market.
The LMOs were used by CIC to issue visas at the Canadian embassy in Beijing to 201 Chinese nationals to work at the underground mine.
The unions argue the LMOs issued to HD Mining by HRSDC failed to ensure there were no Canadians to do the work. In addition, they claim that the TFWs are being offered wages far below prevailing rates.
HD Mining received at least 300 resumes from Canadian citizens or permanent residents, who applied to work at the proposed project.
For this reason, the union argues that any visas or permits issued on the LMOs should be cancelled.
Justice Michael D. Mason rejected an application on Feb. 27 by the unions to introduce new evidence that allegedly showed HD Mining was planning to use the room and pillar method of underground mining.
However, Justice Mason said the affidavit submitted by the unions was based on hearsay and stale-dated information from June 2011.
He said an affidavit by Michael Xiao, overseas department manager for Huiyung Holdings (BC) Ltd., shows that HD Mining reevaluated the proposed mining method in August 2011, about two months after the company was incorporated.
According to court documents, HD Mining had initially planned to develop the mine is two phases.
The first phase involved the collection of a 100,000 tonne bulk coal sample using the room and pillar method, while the second phase uses the long wall method during full mine production.
Xiao said Huiyung’s engineers decided it would be safer and more efficient to take an approach that combines sample collection with the working phase development.
They concluded the bulk coal samples should be collected as part of the in-seam roadways to be developed to facilitate the working phase for long-wall mining.
As a result, HD Mining submitted a supplemental Notice of Work Application to the Ministry of Energy, Mines and Natural Gas in January 2012, which included updated conceptual engineering plans and drawings showing the in-seam roadways development, as well as an updated equipment list.
HD Mining did not hire a single Canadian applicant to work at the underground mine because they were not qualified or lacked experience in long wall mining.
The company said TFWs with experience in long wall mining methods are therefore required to complete the bulk sample phase of the project.
Gordon said the judicial review will trigger a major disclosure of new documents that were used by the federal government to determine that HD Mining was unable to find Canadian workers to fill the jobs. The unions have produced evidence that many Canadian applicants, who were rejected had years of mining experience and training.
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