VICTORIA — The B.C. Human Rights Tribunal‘s recent ruling that dictates pay structures for foreign workers could create a precedent that puts provincial temporary foreign worker programs in jeopardy.

According to several news reports, the Tribunal recently awarded a multi-million dollar judgment to a group of 35 South American temporary workers brought to Canada by construction giant SELI to build a rapid transit rail link from Vancouver Airport to the downtown core.

The complaint was filed by the Construction and Specialized Workers’ Union (CSWU), which collectively bargained for the workers when they arrived in Canada, but has since been decertified by the workers themselves.

(A similar compliant to the BC Labour Relations Board over a year ago was dismissed by that agency).

Regardless, the BCHRT agreed with the union that the South American workers were racially discriminated against because they were not paid the same as European workers also brought in to work on the project by the Italian-based SELI firm. The union also complained that living arrangements and food expenses were not at par with what the European workers received.

The Tribunal agreed, ordering the company to pay the South American foreign workers more than $2.4 million in owed pay as well as $10,000 for "injury to dignity." The Tribunal is also forcing SELI to pay the workers the same as their European counterparts going forward.

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But the construction company says the Tribunal completely disregarded the fact that the South American workers agreed to their pay structure (a 300 percent pay increase from their jobs back home) in the collective agreement. And that many of the European workers, who are more skilled and experienced, were brought to Canada as managers to help oversee the project. The union itself acknowledged some of these points when it agreed to exclude the European group from the bargaining unit, says the company.

Furthermore, SELI says the Tribunal paid no attention to the fact that the South American workers are paid less based on "well-established" international compensation practices. In other words, the workers earned less in Costa Rico or Ecuador, so their cost base was lower relative to global labor markets. But even despite this, SELI points out that once in Canada, the foreign workers were paid the same as Canadian workers hired for similar work.

At least one worker testified he was "quite happy" with his salary. But the Tribunal, without citing any evidence, opined that he was most probably hiding his "true thoughts and feelings."

The Canadian trucking industry, which is a leading participant in foreign worker programs or provincial nominee programs in western Canada and Atlantic Canada, is no stranger to human rights commissions and tribunals interfering with operations.

Various human rights panels in the country, for example, have deemed it illegal for Canadian trucking companies to drug test drivers, even if the company is required to do so for U.S. operations where the practice is mandatory. (Although some recent rulings appear to soften that stance slightly).

In another case, Sikh container haulers in Toronto and Montreal were told they must wear hardhats as required by the Canadian Labour Code when entering such facilities as an intermodal yard or container port. The truckers refused, arguing that they are obligated to wear turbans as a religious rule and cannot remove them. CN issued exemptions when the drivers threatened to go to the human rights authorities.

Peter Gall, a lawyer representing SELI, told local media that despite the ruling, he is comforted "that the B.C. Human Rights Tribunal is the most overturned tribunal in B.C. and probably one of the most overturned tribunals in the country."

Even Immigration Minister Jason Kenney weighed in, blasting the BCHRT’s decision: "I am very concerned by the recent decision of (BCHRT) regarding wages for temporary foreign workers, particularly in light of the fact that these workers were being compensated at the same level as Canadian workers, and had voted to decertify the union that filed the complaint," he said in a press release.

"While this is a matter between the employer and its employees, we are monitoring the situation closely. Especially during a period of economic uncertainty, Canada’s economy and the success of many Canadian businesses depends, in part, on the contribution of foreign workers."