The Temporary Foreign Worker Program and the Controversy Caused by Chinese Miners

Over the past few weeks, a lot of questions have been asked about how a mining company operating in British Columbia was able to obtain over 200 work permits for temporary foreign workers from China. It has been reported that approximately 17 miners from China have already arrived and another 60 are expected to arrive in December. The mine, located at Murray River near Timber Ridge, British Columbia, is run by HD Mining International Ltd. According to HD, the company needed to hire Chinese workers because it could not find any qualified experienced Canadian workers to do the job. Two unions disagree with HD’s claim and they recently filed a lawsuit with the Federal Court of Canada asking for judicial review of the decision to grant work permits for the mine. On November 22, 2012, the two unions, the International Union of Operating Engineers Local 115 and the Construction and Specialized Workers Union Local 1611, were granted the right to bring the lawsuit.

I do not know the particulars of how HD actually obtained its work permits. However, I thought I would provide the reader with a brief overview of the general process that an employer must follow in order to obtain work permits for temporary foreign workers.

Generally, before a foreign worker can be issued a work permit, the employer must apply for a Labour Market Opinion (“LMO”). An LMO is an opinion issued by Human Resources & Skills Development Canada (“HRSDC”) which assesses how hiring a foreign worker will impact the Canadian labour market (see: http://www.cic.gc.ca/english/resources/publications/tfw-guide.asp). An employer needs a positive LMO in order to hire a foreign worker. In order to get a positive LMO, hiring the foreign worker has to have a neutral or positive effect on the Canadian labour market and it cannot take away employment opportunities for Canadian citizens and permanent residents (“PRs”). HRSDC is required by section 203(3) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (“IRPR“), to take into account a number of factors in assessing whether or not to grant an LMO. These factors include but are not limited to:

• (a)    whether hiring a foreign worker will likely result in direct job creation or job retention for Canadian citizens or PRs;
• (b)   whether hiring a foreign worker will likely result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or PRs;
• (c)    whether hiring a foreign worker will likely fill a labour shortage;
• (d)   whether the wages offered to the foreign worker are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;
• (e)   whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or PRs; and
• (f)     whether hiring a foreign worker will likely adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.

When applying for an LMO, the employer must submit evidence to show that hiring a foreign worker will meet the above requirements. Showing that reasonable efforts have been made to hire or train Canadian citizens or PRs is crucial. Normally, the employer is required to advertise for 14 days on the job bank website and in job databases, newspapers, or through any other medium that is consistent with the general practice for that occupation. In addition, HRSDC will normally consider the trends and conditions of the labour market. Information about the labour market is obtained from HRSDC’s internal labour market forecasts, statistics, and other information HRSDC has gathered for this purpose. According to HRSDC, if unemployment is high and a local worker can be easily trained for the position, then it will be harder for an employer to get a positive LMO. On the other hand, if unemployment is low and training lengthy, then it will be easier for the employer to get a positive LMO.

The unions have taken particular issue with the way in which HD advertised its available jobs. In particular, the unions claim that HD advertised that Mandarin skills were required for the job. It is important to note that there is no requirement in IRPR that a foreign worker speak English or French in order for a positive LMO to be issued by HRSDC. However, a visa officer cannot issue a work permit if there are reasonable grounds to believe that the worker is unable to perform the work sought (IRPR, s. 200(3)(a)). A visa officer is supposed to carefully assess the requirements of the job and determine if the particular worker meets the stated job requirements. As an example, in Chen v. Canada (Minister of Citizenship & Immigration), 2005 FC 1378, an employer was granted a positive LMO for a job where the ability to speak English was not a requirement. However, in this case, the visa officer still denied the work permit because the officer considered English to be a relevant job requirement. One of the worker’s duties was to train his replacement and the visa officer did not see how this could be possible if the worker did not speak English. Furthermore, not considering English or French speaking applicants would be inconsistent with the overall policy behind the program. After all, the program is designed to ensure that employers make reasonable attempts to hire Canadian workers first.

Another question that was raised about the issuance of work permits to HD was how they managed to obtain over 200 work permits. Technically, there is no limit on the number of work permits that can be issued to an employer. However, hiring a large number of foreign workers will make it harder to justify to HRSDC that there will be no adverse effect on the Canadian labour market or that there were no Canadians available for the jobs.  In situations where extensive recruitment is required for a large number of foreign workers, the employer can apply to HRSDC for pre-approval of an LMO. Pre-approval will be granted if the employer can demonstrate that he or she will have a large number of openings which need to be filled with foreign workers. In the application for pre-approval, the employer requests a number of “spaces” within the LMO which will be filled by foreign workers as they are hired. If pre-approval is granted, the employer can go ahead and recruit foreign workers to fill the “spaces” within the LMO.

In attempting to clarify how HD might have obtained over 200 work permits, I can not say whether  HD did or did not validly obtain the work permits. Abuses of the temporary foreign worker program do occur. In fact, when questions began to emerge about HD, the federal government announced that it was already conducting a review of the program. Whether HD was properly issued the work permits will likely come to light as the case progresses in Federal Court.

Furthermore, it is not only the process of the temporary foreign worker program that is open to abuse. Our very own Tim Bailey recently commented to the TYEE, a British Columbia based online news magazine, about the vulnerability of foreign workers in Canada. The legal status of a foreign worker is often in the hands of his or her employer. Therefore, a foreign worker may be hesitant to complain about an infringement of his or her rights out of fear of being forced to leave Canada. This is a whole different issue that is best left for another blog post but to read more about what Tim had to say go to: http://thetyee.ca/News/2012/11/10/TFW-Permits/.