Court Rules in Favour of Chinese Miner Imports

B.C. mining company justified in bringing in Chinese workers, Federal Court rules

 

 

BY TOBI COHEN, POSTMEDIA NEWS MAY 22, 2013 9:30 AM

 

 

A spokeswoman for Human Resources Minister Diane Finley welcomed a ruling from the Federal Court that says the government was justified in issuing positive labour market opinions that allowed a British Columbia mining company to hire 201 temporary foreign workers from China.

Photograph by: THE CANADIAN PRESS/Adrian Wyld , Postmedia News

OTTAWA — The government was justified in issuing a positive labour market opinion that allowed a British Columbia 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 12.5 kilometres southeast of Tumbler Ridge, B.C.

Among the more contentious issues was the fact the company, HD Mining, required workers to speak Chinese.

In a statement Tuesday, the company called the decision a “complete vindication” but suggested it “has come at a great cost and has raised significant questions in the international investment community.”

Company chairman Penggui Yan said the ruling ultimately rejected the unions’ arguments that the company didn’t make “sufficient efforts” to recruit Canadians, that it “placed undue requirements for low skilled positions” and that the company planned to pay “inappropriately low wages.

“During these months of litigation, the unions made many allegations – both in court and the media – which we frankly found appalling,” Yan said.

“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.”

Yan added the company is “looking forward to putting the litigation behind us” and moving on with the project.

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 spokesman 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.”

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, it suggested 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.

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