Federal court rules against union challenge to Canada’s temporary foreign worker program; the battle goes on

Introduction, by Roger Annis, May 22, 2013

Construction unions in British Columbia and the broader union movement in Canada lost a court battle this week in Ottawa over the efforts of an upstart coal mining company, HD Mining, to build and operate a coal mine in northeast BC using workers from China. Below are three news articles describing this case.

The HD Mining case contributed to public revelation of the scope of the abuses by employers of Canada’s Foreign Temporary Worker Program. The program is increasingly being used by employers as a source of cheap labour, pure and simple. The abuses go right to the top of Canada’s corporate echelon. A similar program in the United States is the flagship that inspired Canada’s rulers to follow the same path.

The HD Mining mine was the first of four such coal mines by Chinese investors that the BC government of Christy Clark has worked hard to assist in opening up.

By all appearance, the unions have dropped any further action on the case. According to the press release of the BC Federation of Labour, the unions will depend on the Harper government in Ottawa to act on behalf of workers interests and tighten the rules of the temporary foreign worker program.

So the unions in BC have lost another case in court and life goes on. We shall see where the HD Mining and broader battles on this issue are headed. The habit of channeling the class struggle into the hostile terrain of the capitalist courts and, more often than not, losing is firmly entrenched throughout the unions in Canada. Court battles, of course, can have their place in the course of the class struggle. But not at the expense of diverting popular mobilization.

It doesn’t help that in this era of climate emergency, most of the union movement in British Columbia supports the expansion of coal mining, or is seemingly unaware that there are any related, climate issues requiring attention.

For more background on the Temporary Foreign Worker Program, you can read my several articles and news compilations on the story.


HD Mining foreign workers case dismissed by federal court

By Keven Drews, The Canadian Press, May 21,2013

VANCOUVER – Two unions may have lost a Federal Court battle disputing a mining company’s plan to bring in 201 temporary foreign workers from China, but they’re celebrating the spotlight they’ve shone on the problems associated with the employment program.

HD Mining International Ltd had come under increased scrutiny after arguing there were no Canadians qualified to do specialized work at a planned underground coal mine in northeast British Columbia. In its successful application for temporary foreign workers it had said the ability to speak Mandarin was an essential requirement of the job.

Two unions — the Construction and Specialized Workers’ Union, Local 1611, and International Union of Operating Engineers, Local 115 — were granted the right to seek a judicial review of the process used to grant the foreign worker permits for the Chinese miners. They challenged in court the labour market opinions — documents that confirm a skilled labour shortage — issued by an official from Human Resources and Skills Development Canada in April 2012.

But Federal Court Justice Russel Zinn dismissed on Tuesday the application by the unions, which argued the federal official was fettered by supervisors who wanted a favourable ruling and concluded hiring the workers would not hurt the job prospects of Canadians.

“My instant reaction is I’m disappointed with the ruling because there’s not a doubt in my mind, I think, that what happened with this particular case was not in the interest of Canadians,” said Brian Cochrane, business manager of the International Union of Operating Engineers, Local 115. “It didn’t fit the intent of the temporary foreign worker program, but, you know, we respect the decision of the courts, and really we have to view as what a success this story’s been in highlighting to Canadians the problems with the program.”

Specifically, those problems included the Mandarin-language requirement for applicants and the extent to which the company advertised the jobs in an attempt to hire qualified Canadian workers, he said. Cochrane said the court challenge raised issues related to wages, noting HD Mining was willing to pay foreign workers 30 to 35 per cent less than market rates.

He pointed to an announcement by the Conservative government last month to overhaul the temporary foreign worker program. In that announcement, Immigration Minister Jason Kenney halted what’s known as the 15 per cent rule, a policy that allowed employers to pay temporary foreign workers up to 15 per cent below median wages, if that’s what they were paying Canadians.

The Conservatives also stalled a program that allowed companies to fast track workers from outside Canada through what’s known as an accelerated labour-market opinion. The overhaul also includes stricter application rules, new fees for employers and a promise of stricter enforcement by the government.

“There’s been a lot of successes, I think, in respect to shining the light of day onto what’s going on within the country,” Cochrane said.

Meanwhile, Penggui Yan, HD Mining’s chairman, said Tuesday’s court decision vindicated the company, but at a great cost, while raising questions in the international investment community. “During these months of litigation, the unions made many allegations – both in court and the media – which we frankly found appalling,” he said in a statement. “We knew this litigation was driven by a political agenda and we knew we needed to wait for a Canadian court to reject these claims. It has taken a long time, but today is that day.”

Jan O’Driscoll, spokesman for Diane Finley, federal minister of human resources and skills development, said the government respects the court’s decision. “Our government is taking decisive action for Canadian workers by reforming the temporary foreign worker program and making sure that Canadians workers are always put first,” he said.

However, the B.C. Federation of Labour called on the federal government to go even further in its reforms, saying the deck has been stacked against Canadians by governments that are meant to represent them. In fact, federation president Jim Sinclair said in a statement that the federal government’s recently announced changes wouldn’t have prevented the mining company’s application to import temporary foreign workers. “Canadians want to know that they will have access to these jobs,” he added. “Canadian also support continued immigration to Canada, not the recipe for exploitation that the temporary foreign worker program has become.”

Known as the Murray River project, the proposed mine in B.C. is located 12.5 kilometres southeast of Tumbler Ridge. The company has estimated the mine’s production at 6-million tonnes of steelmaking coal over 30 years.

With a capital cost of $300 million, the mine, once operating, would create about $90 million in government revenue and employ 600 people directly and another 700, indirectly, the company states. HD Mining says it has already invested more than $50 million in the project.

According to the Federal Court ruling, HD Mining applied for its labour market opinions on March 2, 2012, and March 15, 2012, because the employees were needed to work on the mine’s construction and complete bulk sampling.

The Human Resources and Skills Development Canada officer issued 10 positive labour market opinions on April 25, 2012. The controlling shareholder of HD Mining is Huiyong Holdings (BC) Ltd. Canadian Dehua International Mines Group Inc. owns 40 per cent of the shares.


Federal Court dismisses union challenge against B.C. foreign workers

Temporary foreign workers used to mean farm workers and people with rare, high-end skills. Now it means coal miners (such as this one from China) and people who flip burgers and pour coffee.

By Tobi Cohen, Postmedia News, Tuesday May 21, 2013

OTTAWA — The British Columbia government was justified in issuing positive labour market opinions that allowed a mining company to hire 201 temporary foreign workers from China, the Federal Court ruled Tuesday.

The decision comes after two unions challenged the government and the companies involved, arguing Canadians are available to do the jobs required and that it was not necessary to look outside the country for foreign labour. The incident touched off a massive debate over Canada’s Temporary Foreign Worker Program, with the government promising, and eventually delivering on, a number of changes to protect Canadian jobs.

While the Construction and Specialized Workers’ Union and the International Union of Operating Engineers ultimately lost their court case, their lawyer, Lorne Waldman, said it’s far from a total defeat. “I’m disappointed that the courts opted to uphold the decision, but having said that, I think the importance of the case goes far beyond this decision,” he said.

“I think this case was an extremely important one and was successful because it ultimately exposed some of major shortcomings in the labour market opinion process and forced the government to make changes.”

The Chinese miners were being brought to Canada to work on a project at the Murray River underground coal mine on the eastern side of the Rocky Mountains about 10 kilometres southwest of Tumbler Ridge, B.C. Among the more contentious issues was the fact the company required workers to speak Chinese.

Following this incident and another involving the outsourcing of jobs by the Royal Bank of Canada to a company that planned to hire temporary foreign workers, the federal government came under intense pressure to make changes to save Canadian jobs. Last month, the government announced it would drop the 15-per-cent wage differential for foreign workers introduced in the last budget and temporarily suspend a controversial fast-track process as a first step towards fixing the temporary foreign worker program.

The government also introduced changes that will allow officials to suspend or revoke work permits and labour market opinions. The latter is administered by Human Resources and Skills Development Canada and essentially paves the way for work permits to be issued where, indeed, there is a shortage of Canadian workers.

The 2013 federal budget also included provisions to ensure employers broaden the length and reach of job postings and produce a plan for transitioning to a Canadian workforce over time when applying for permits under the program. New user fees for employers seeking to hire temporary foreign workers are also expected to offset costs currently absorbed by taxpayers.

The government has also taken steps to amend the Immigration and Refugee Protection Regulations so that companies cannot make knowledge of a language other than French or English a requirement when hiring through the temporary foreign worker process.

Jan O’Driscoll, a spokeswoman for Human Resources Minister Diane Finley, said the government “respects the court’s decision” and is nonetheless “taking decisive action for Canadian workers by reforming the temporary foreign worker program and making sure that Canadian workers are always put first.”

While the mining companies involved could not be reached for comment, the ruling essentially means they could go ahead with bringing in the foreign workers in this case.

The court ruled the human resources officer involved in vetting the labour market opinion application was right to conclude that the hiring of the temporary foreign workers would result in “a neutral or positive effect on the labour market in Canada.” It found the officer “did not fetter his discretion” when assessing the application from HD Mining or “make any unreasonable assessment when considering the factors” laid out in the regulations.

The Federal Court also acknowledged the “novelty” of the case, noting this appeared to be the first time anybody has challenged a positive decision made under the temporary foreign worker program. In other words, parties typically only contest when the government refuses an application.

The court did not certify any questions that open the door for parties to appeal an immigration case, which means there will not be an appeal.


Federal, provincial officials applied pressure to allow foreign workers, court hears

Issue raised as unions try to quash 201 permits for coal project in Northeastern B.C.

By Peter O’Neil, Vancouver Sun May 8, 2013

OTTAWA — Federal and B.C. government officials were applying “unusual” and “daily” pressure in early 2012 to encourage the processing of federal permits to bring in temporary foreign workers from China for a controversial proposed northeast B.C. coal mine, according to testimony submitted at a Federal Court of Canada case.

Lisa Smith, an Edmonton-based manager at Human Resources and Skills Development Canada, “was receiving calls daily from (the) Province of B.C. and CIC (Citizenship and Immigration Canada) regarding status of files,” Vancouver-based HRSDC employee William MacLean wrote in an April 13, 2012 diary entry.

That diary was entered as evidence in the Federal Court challenge by several B.C. unions trying to quash the federal government’s granting of 201 permits for HD Mining’s coal project in northeastern B.C. MacLean confirmed during the court case that his Edmonton manager wouldn’t normally be contacting him regarding a Labour Market Opinion (LMO) application.

A positive LMO determination is required to bring in a temporary worker; it confirms that there is a need for a temporary worker that no Canadian can fill. “It was unusual to have the manager from Edmonton speak to me directly,” MacLean said at the Federal Court hearing.

HD Mining’s project near Tumbler Ridge is one of four coal mines that have been proposed by a consortium of primarily Chinese companies who say they can’t find Canadians trained in the so-called “long-wall” mining technique common in China.

Clark made the mines a central component of her jobs plan when she announced in Beijing in November of 2011 that the companies had come up with $1.4 billion to invest in two of the four mines. Clark didn’t mention in her statement that the companies planned to use Chinese nationals to work on the underground component of the mines. The statement said the two mines “will create over 6,700 jobs and other economic benefits for British Columbians.”

A document released under the Freedom of Information Act to the United Steelworkers said Clark met in China at that time with the coal mining companies. They raised with her their “challenges with securing work permits,” according to an undated briefing note from Dave Byng, deputy minister the ministry of jobs, tourism and skills training.

The Clark government came under considerable criticism after The Vancouver Sun reported last autumn that the 201 work permits had been granted to HD Mining.

While the B.C. government argued that the TFW program was important for B.C., and defended HD Mining, Clark has since distanced herself from it. “It’s a federal program. I mean, they decide how they let in temporary foreign workers,” Clark told CKNW’s Bill Good last month.

She said she’s glad the federal government is reviewing the program as a result of the controversy, and that British Columbians “have to have confidence” the program isn’t taking jobs from them. She also said she looks forward to “advising them on how they can make it work” if the Liberals are reelected.

New Democratic Party labour critic Shane Simpson said Wednesday the documents suggest a contradiction. Clark and the Liberal government were “actively promoting this program quietly, and pushing for decisions with federal government bureaucrats on the one hand, while on the other hand the leader of the party is saying, ‘there’s nothing to see here, this program has nothing to do with us,’” Simpson said.

Alexis Pavlich, a spokesman for federal Immigration Minister Jason Kenney, said there was “absolutely” no political pressure on the department to expedite the TFW permits.

B.C. Jobs Minister Pat Bell couldn’t be reached for comment, but the ministry released a statement by email. “As with any major investment that brings jobs and revenue to British Columbia, the government worked with the company to identify and address challenges that could impede their project,” the statement said. “At no time did government officials pressure HRSDC employees to approve HD Mining’s application for temporary foreign workers.

“This decision was made by the federal government; it is a decision that is solely within their purview.”


And here are two commentaries by Toronto Star editor Haroon Siddiqui that are well worth reading:
* Temporary foreign worker flood to continue, May 16, 2013
* Canada needs a national debate on immigration, May 22, 2013

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