The CSWU v. SELI Case
The Construction and Specialized Workers’ Union, Local 1611 knew it would be an uphill battle when they filed a human rights complaint on behalf of the temporary foreign workers from Central and South America who were employed by SELI Canada et al. to help bore the Canada Line tunnel. The complaint alleged that the Latin American workers were being paid far less than the Europeans who were doing the same jobs, and that their living conditions were worse simply because they were Latin Americans.
The hearing rapidly became even more of a quagmire than expected. Once scheduled for one week, it turned into a 24-day hearing over an eight-month period, with the parties calling 29 witnesses (five of them twice). In the end, there were 11 written decisions, along with several oral ones. As the Tribunal stated: “The hearing was sometimes highly contentious, which added to the length and difficulty of the proceedings.”
Ultimately, in C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436, the Tribunal held that the Union had established that the Latin American employees were discriminated against on the basis of race, colour, ancestry and place of origin, contrary to s. 13 of the Code and that there was no justification for this. The Tribunal then ordered SELI to pay the Latin Americans the difference between the gross salary paid to them and to the average European. As well, it ordered $10,000 in damages for injury to dignity to each worker, as well as pre- and post-judgment interest. Damages are estimated as amounting to $2.3 million.
The Human Rights Tribunal determined that the Latin American workers had been adversely treated, compared to European workers, in their pay, their accommodation, their meal arrangements, and their arrangements for expense reimbursements.
The Tribunal further found that the race, colour, ancestry and place of origin were factors in their adverse treatment. While SELI argued that the differences were based on objective facts about the different countries of origin, meaning the different wages in different countries’ labour markets, the Tribunal found that this was not the primary basis used to determine wages. In any event, paying people who do the same work differently simply because they are from countries from different wage rates is discriminatory.
The Tribunal also rejected SELI’s argument that differences in skills, duties and experiences between Latin Americans and Europeans accounted for their different terms and conditions of employment. In some cases, the Latin Americans were being paid far less to do more difficult jobs.
Moreover, the evidence made clear that SELI itself viewed Latin Americans differently. Their treatment of Latin Americans in respect of accommodations, meals and expenses reflected arbitrary and stereotypical thinking about Latin Americans and Europeans, and their respective needs and desires and impaired their human dignity. The Latin Americans were especially vulnerable, and the Employer treated them worse than Europeans simply because of who they were and where they were from.
The Tribunal concluded that SELI’s international compensation practices were not a justification for the discrimination. In effect, the application of SELI’s international compensation practices to Latin Americans employed by them on the Canada Line project was to take advantage of the existing disadvantaged position of these workers, who are from poorer countries, and to perpetuate that disadvantage, and to do so while they were living and working within the province of British Columbia. This was contrary to the purposes of the Code and unjustifiable.
A judicial review application was filed and commenced in the Supreme Court of British Columbia on January 25, 2010. A preliminary matter was argued and the case has been adjourned sine die.
New Regulations Purporting to Protect Foreign Workers
In October of 2009, the federal government introduced amendments to the regulations under the Immigration and Refugee Protection Act (“IRPA”), which preclude exploitative employers from bringing more foreign workers into Canada. However, the new amendments neglect to provide superior compliance or enforcement.
The Regulatory Impact Analysis Statement (http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html) summarizes the amendments as follows:
Sections of the Immigration and Refugee Protection Regulations (IRPR) dealing with the entry of Temporary Foreign Workers (TFWs) would be amended to clarify the process for and establish factors to be considered in assessing the genuineness of all offers of employment. Another key change to the Regulations would allow for the restriction of an employer’s eligibility to access the TFWP for two years where the employer, at the time of application or request, has been found to have provided significantly different wages, working conditions or the occupation offered. A list of ineligible employers would be made available on Citizenship and Immigration Canada’s (CIC) external Web site. Amendments would also establish a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada, with exemptions under certain circumstances; and require that Human Resources and Skills Development Canada’s (HRSDC) Labour Market Opinion (LMO) indicate a time period during which it is in effect.
The three stated objectives of the regulatory changes are:
- Minimize the potential for TFW exploitation by employers and third-party agents, thereby better protecting TFWs who work in Canada;
- Implement stricter employer monitoring mechanisms, including a denial-of-service provision, thereby encouraging greater adherence by employers to the terms of their offers of employment with respect to wages, working conditions, and occupations; and
- Underline that employment facilitated through the TFWP is meant to be temporary in nature.
However, these regulatory changes fail to adopt many of the key recommendations made in the Report of Parliament’s Standing Committee on Citizenship and Immigration entitled “Temporary Foreign Workers and Non-Status Workers” (released in May 2009) (http://www2.parl.gc.ca/content/hoc/Committee/402/CIMM/Reports/RP3866154/cimmrp07/cimmrp07-e.pdf) .
For example, the Committee's Report recommended that the Government execute procedures to make information available to foreign workers regarding their rights (both before coming to Canada and once they are here). As well, it recommended that the Government use the existing provisions in the Criminal Code and the IRPA to prosecute employers who violate the law.
In addition, the Committee advocated for an increase in the rights of temporary foreign workers to access social programs in Canada (access to Employment Insurance benefits, social assistance, health care and et cetera). The Committee specifically noted that even when foreign workers are eligible for these programs, there are frequently barriers to access, including lack of knowledge about entitlement.
Moreover, the Committee recommended that the Government should implement a process whereby temporary foreign workers can obtain citizenship. This would be modeled on that process that is already in place for foreign workers in the live-in caregiver program.
The key criticism of the changes is to be that the effect of their effects, particularly the four-year limit on remaining in the country, will augment the vulnerability of foreign workers in Canada. Whether these regulatory changes will serve to support the rights of temporary foreign workers or marginalize them even more remains to be seen. However, it is clear that foreign workers need to be provided with more information about their rights, particularly their basic human rights that are protected by Canadian legislation.
Unions can play a key role in helping to protect these workers by organizing them and filing grievances or human rights complaint.
For example, in C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436, the Construction and Specialized Workers’ Union, Local 1611 filed a human rights complaint on behalf of the temporary foreign workers from Central and South America who were employed by SELI Canada et al. to help excavate the Canada Line tunnel. The Union successfully argued that the Latin American employees were discriminated against on the basis of race, colour, ancestry and place of origin, contrary to s. 13 of the Code and that there was no justification for this.
The Tribunal then ordered SELI to pay the Latin Americans the difference between the gross salary paid to them and to the average European. As well, it ordered $10,000 in damages for injury to dignity to each worker, as well as pre- and post-judgment interest.
Note that a judicial review application was filed and commenced in the Supreme Court of British Columbia on January 25, 2010. A preliminary matter was argued and the case has been adjourned sine die.