Two major unions, the International Union of Operating Engineers (the “IUOE”) and the Construction and Specialised Workers' Union (the “CSWU”), have requested a judicial review of the decision of Human Resources and Skills Development Canada (“HRSDC”) to allow 201 Chinese workers to enter the Canadian labour market to work at the Murray River Coal project, a major coal mining plant in British Columbia.

HD Mining, a Vancouver-based company, requested the entry of the Chinese workers.  The company argued that the foreigners were needed to conduct bulk sampling of coal sites in order to assess the likely level of profitability of the potential coal project.

In securing permits for the Chinese workers, the company applied to HRSDC in British Columbia for positive Labour Market Opinions (“LMO’s”). An approval from HRSDC is a prerequisite to the entry of the majority of foreign workers into Canada’s labour market. This process involves an assessment of the local labour market to determine whether allowing a foreigner to take up a position is justifiable in the circumstances, such as because of a skilled labour shortage.

Before applying for an LMO, employers are required to make reasonable efforts to find local Canadians or Permanent Residents to fill the required roles. Both the IUOE and CSWU argue that HD Mining was presented with several qualified Canadians who were able to fill the roles required for the coal project.

The unions also accuse HD Mining of acting inappropriately in not interviewing or otherwise seriously considering the Canadian applicants. The unions specifically point to the fact that HD Mining received approximately 230 resumes from Canadians or Permanent Residents but hired only 12 to support their claim that the company did not make sufficient efforts to hire locally.

HD Mining, for its part, while recognizing that many of the applicants had mining experience, argues that it was unable to find domestic workers who were able to carry out so-called “longwall” mining methods. The company has further warned that if it is unable to secure the foreign workers requested, it will likely not be in a position to develop the site and to provide the many jobs which it anticipates would be available to Canadians.

What does this mean for employers?

The controversy raised by the hiring of foreign workers at the Murray River Coal project demonstrates the importance of understanding the rules and regulations surrounding the hiring of foreign workers. The political sensitivity of hiring foreigners means that HRSDC will undoubtedly increasingly scrutinize applications for LMO’s in the future. Specifically, both HRSDC and Citizenship and Immigration Canada will insist that employers make reasonable and continuing efforts to hire Canadians or Permanent Residents before requesting that foreign workers be allowed to enter the Canadian labour market. They will further seek clear evidence that significant efforts have been made before considering any request to allow a foreigner to work in Canada.

Employers would accordingly be wise to ensure no only that they are well aware of the rules and regulations surrounding the hiring of temporary foreign workers but that they are applied properly and consistently. This can help to increase the predictability of results while avoiding the scrutiny which HD Mining is currently experiencing.