Union has right to proceed with case, judge rules
Trent Ernst, Editor
A Judge has ruled that two unions seeking an injunction against HD Mining bringing in temporary foreign workers are allowed to go forward with the case.
HD Mining has been granted permits for 201 Temporary Foreign Workers to conduct a bulk sample of 100,000 tonnes of coal at the Murray River Coal Mine, of which 17 are already here in Tumbler Ridge.
HD has said that it hasn’t been able to find workers in Canada with the requisite skills to work in a longwall coal mine. The unions on the other hand say that there are plenty of skilled workers, and accuses the company of bringing in the workers at a lower wage than the going rate in Canada. However, according to a written submission from HD Mining, “There is no information that any union member applied for the advertised jobs posted by HD Mining,”
Lawyers for the company and for the federal government argued that the application for judicial review should be dismissed, saying that the applicants might have a general interest in the issue, but that shouldn’t elevate the Applicant’s status to one of “public interest litigant.”
But Judge Douglas Campbell ruled otherwise, saying the Applicants “do have a genuine interest in the issue before the Court.” In his ruling, Campbell goes on to say that “this interest engages matters of broader public importance. In my opinion [this] elevates the matter presently under consideration to one that warrants recognizing the Applicants as public interest litigants.”
Another 60 workers are expected to arrive in mid-December, something the union says they want to prevent.
On Tuesday of last week, Michael Xiao, the overseas department manager for Huiyong Holdings Group Ltd., said in an affidavit that HD posted the job over a period of three months in a variety of locations, including on the company website, with the National Job Bank operated by Service Canada, on the Infomine website, the Aboriginal Canada job portal, with the Mining Association of BC, in the Vancouver Sun and Province, the Tumbler Ridge News and on the job board in Tumbler Ridge.
“These advertisements were part of a comprehensive recruitment undertaking that was designed to identify potential qualified mine workers with the requisite experience,” Xiao said in the affidavit.
As part of the Temporary Foreign Worker program, HD Mining was required to advertise in the National Job bank for two weeks. According to information in court, they advertised for twice as long as required.
Advertised salaries ranged from $90,000 to $130,000 annually for a mine foreman/forewoman to $28 to $40 an hour for 65 coal miner positions, with dental and medical benefits, and group insurance.
Mark Olsen, Business Manager of the Labourers Union says the wages were below Canadian standards. “No matter what ad they’re talking about, the wages were $10 to 17 less than a Canadian worker would make.” The coal miner positions—all advertised as permanent, full-time jobs—required “three years to less than five years” of experience.
According to an affidavit filed by Brian Cochrane, business manager of IUOE 115, starting wage at the Grande Cache Coal Mine for someone with three years experience are between $38 and $42.
However, HD Mining maintains that the wages posted were “consistent with the Infomine Benchmark.”
The Temporary Foreign Worker program requires a company to submit an account of how many applications they received from Canadian workers and explain why they were rejected. However that was not included in the documents submitted to the court.
“There is no information that any union member applied for the advertised jobs posted by HD Mining,” the company said in a written submission to the court.
The International Union of Operating Engineers Local 115 and the Construction and Specialized Workers Union Local 1611 filed the lawsuit in Federal Court for a judicial review of the decision to grant the permits and is seeking an injunction to prevent the company from bringing over any more workers.
The affidavit from Xiao says that speaking Mandarin was suggested as an “other language” in the National Job Bank posting, and wasn’t a condition of employment. A recent statement from HD Mining says “Contrary to some allegations that the advertisements required Mandarin speakers, none of the advertisements said Mandarin was required. Most made no mention of Mandarin at all.”
Olsen disagrees. “The fact remains, there were job ads that required Mandarin, that’s a fact.”
Olsen says that he doesn’t know how long this case will drag on, but he is glad that it is proceeding. “[Now that we’re] over that hurdle, it’s about full disclosure of the information. That’s the next legal battle. The Crown may appeal. Or we may get to say ‘hand over all the documents,’ and they’ll hand them over but they’re all redacted. It could drag on.”
Temporary work permits have been granted for between 200 and 300 Chinese workers to conduct preliminary work at the Murray River mine near Tumbler Ridge, B.C. The company has said it was not able to find workers in Canada with the necessary specialized skills for an underground coal mine.