Commentary: Legal warning signals from the HD Mining case – by Kevin MacNeill, Sharaf Sultan and Daniel Mayer (Northern Miner – April 30, 2013)

The Northern Miner, first published in 1915, during the Cobalt Silver Rush, is considered Canada’s leading authority on the mining industry.

The HD Mining case, which is currently before the Federal Court of Canada, has a high media profile these days. It’s a story that weaves together two hot button legal issues for the labour movement: immigration and occupational health and safety (OHS).

Employers may wish to consider the issues the case raises and review existing practices for compliance, as cases like this will come under increasing regulatory scrutiny.

As background, in response to a chronic shortage of skilled labour, the number of temporary foreign workers in Canada has grown from 60,000 to over 250,000 during the last 13 years. In this context, HD Mining hired of hundreds of Chinese nationals to work at its Murray River Coal project in B.C., further to an approval by Human Resources and Skills Development Canada (HRSDC).

To secure permits for the Chinese workers, HD Mining had to apply to HRSDC for a positive Labour Market Opinion (LMO), an assessment of the local labour market to determine whether allowing a foreigner to work in Canada is justifiable in the circumstances.

Employers are required not only to undertake to comply with wage levels and working conditions promised under an LMO, but also to adhere to all rules and regulations relating to employment, including all OHS obligations in the jurisdiction where an employee will work.

Before applying for an LMO, employers are required to make reasonable efforts to find local Canadians or Permanent Residents to fill the roles in question.

The International Union of Operating Engineers and the Construction and Specialized Workers’ Union have challenged the HRSDC approval in Federal Court, alleging that HD Mining did not try hard enough to find Canadians for the jobs.

The unions allege that hundreds of qualified Canadians were capable of doing the required jobs but HD Mining failed to interview or seriously consider them, with the result that it hired only 12 Canadians.

HD Mining has countered that it was unable to find local workers who had experience in Longwall mining methods. It further warned that if it could not hire the foreign workers, it would not be able to develop the site or provide the many jobs which it anticipates would be available to Canadians once the site is developed.

The Federal Court heard arguments during the week of April 8 and its decision is under reserve.

Apart from the immigration law issues just noted, the United Steelworkers also filed a complaint with the B.C. Ministry of Energy and Mines late last November, alleging HD Mining did not take adequate steps to ensure that its foreign workers understood workplace safety rules, which were only in English. The Union requested that the Minister suspend HD Mining’s operations until remedial action was taken.

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