B.C. union argues it's found another foreign-worker loophole

VANCOUVER -- A British Columbia trade union is challenging a series of work permits issued to American citizens for a power project in the province's north, arguing it has uncovered yet another glaring example of a foreign-worker loophole the government must tie up to protect jobs.

The union contends Canadians lost employment when border agents, whose job it was to scrutinize the qualifications of eight workers, granted them visas earlier this year under a provision of the North American Free Trade Agreement.

The process is flawed and skirts the channels through which foreign workers are properly allowed to enter the country, said Wayne Mills, president of International Union of Operating Engineers local 115.

Mills said the intra-company transfer program has cracks bigger than the former version of the Temporary Foreign Workers' Program, which the federal government overhauled last week after ongoing revelations that it was prone to breaches.

"Myself, I'll use the word outraged, because that's the most polite word I can use, but Canadians are losing jobs through loopholes," Mills said. "It's not because they're untrained or unqualified. (Companies are) sidestepping around the facts, and they've found a new way to get (workers) into the country."

Lawyers for the union will be in Federal Court on Tuesday, seeking to speed up the process for a judicial review of the case involving Oregon-based O & S Contractors Inc.

The union wants a judge to scrap the permits -- even as the project's completion date looms -- and is aiming to draw attention to what it believes are hiring abuses that could be much more widespread.

The case in Vancouver involves B.C.'s Conifex Power Limited Partnership (TSX:CFF), which hired O & S Contractors to construct a wood waste storage building at its new bioenergy facility in Mackenzie, north of Prince George, B.C.

The workers presented documents supporting their application under the NAFTA program, which allows certain employees to transfer from branches of U.S. to Canadian companies. A key criterion for entry is specialized knowledge, which the workers must possess and the project must require. The union argues neither is true under this scenario.

Canadian Border Services Agency documents show the workers include a former cattle rancher with a criminal record, who was turned away twice before getting his permit, and a young man with a high school education set to be employed as a mill wright.

Unlike the Temporary Foreign Workers' Program, or TFWP, the program they used to gain entry does not require a labour market opinion (LMO), a document showing a labour shortage in Canada exists for that particular job.

"The big concern here is if we start allowing construction workers to come and work in Canada without the LMO process, then that's a big hole in our border," said the union's lawyer Charles Gordon. "This is the Temporary Foreign Workers' Program without the LMO process. It's got less safeguards."

The foreign workers' program puts the onus on the employer to show they tried to hire a Canadian first.

O & S Contractors disputes the allegations, none of which have been proven in court, said its lawyer Aleksandar Stojicevic.

"We say they have no standing, this is none of their business, these are NAFTA work permits that were issued properly by the border some time ago," he said.

Stojicevic defended and won a high-profile case against the same union last year, which sought to prevent about 200 miners from China working on a proposed B.C. coal project who were granted admittance under the TFWP. The unions had alleged Chinese-owned HD Mining did not do enough to ensure Canadians were hired first.

"This is nothing more than this law firm trying a route that they took in HD Mining," Stojicevic said. "It's the same tactic. It didn't work then. Ultimately, it won't work here."

Conifex did not return a request for comment.

An affidavit sworn by the chief financial officer for O & S said the company was selected to assist in the project because of its previous experience constructing an identical operating plant in Oregon. Jeff Gaskill describes the project as "highly specialized.

"The equipment and design is confidential and proprietary. Due to its level of complexity, previous installation experience was required for the successful and safe installation and management of the work."

The union counters with its own affidavit from a crane operator with 30 years experience, who previously worked on the Conifex project with employees of O & S. Eric Buchanan states he observed the hands-on work and it "does not require specialized knowledge."

Questions to the CBSA and Employment Minister Jason Kenney were referred to Citizenship and Immigration Canada.

The press secretary for Minister Chris Alexander wouldn't comment while the case is before the courts. But Alexis Pavlich said in an email the government is currently changing how it processes intra-company transfer applications.

She said guidelines for front-line border agents have been "strengthened," so they can better assess the evidence of the worker's specialized knowledge. Such workers are also barred from receiving training once in Canada.