Why sanctions against the Donkin mine's owner are so unusual

When most people think of abuses under the temporary foreign worker program, they likely think of underpaid employees.

That's what makes sanctions levied against Donkin's Kameron Coal difficult for some people to understand, said Sarah McInnes, an immigration and labour lawyer with McInnes Cooper in Halifax.

The coal mine operator appears to be in the unique position of having been sanctioned for overpaying workers. It was fined $54,000 and has been banned from accessing the program for one year.

A Federal Court judge recently said the company's arguments"appear to be somewhat novel."

Donkin mine vice-president Shannon Campbell has said Kameron Coal is not commenting on the administrative penalties, saying the matter is being appealed in court.

Service Canada says the American-owned company paid U.S. workers far more than it said it would after a labour market impact assessment found no Canadians willing to take certain jobs.

The company was originally allowed to hire temporary foreign workers because it couldn't find enough Canadians to fill positions at the only underground coal mine in the country.

The company then offered U.S. employees up to 120 per cent more in salaries and up to 60 per cent more in overtime, plus a range of other cash bonuses and benefits that weren't on offer to Canadians.

McInnes said in the past year, the federal government has dramatically increased audits of companies that hire temporary foreign workers.

It's not clear how many overpay their workers, she said, but any deviation from the rules is resulting in penalties.

"Part of our advice to our clients is to be very clear about the post-labour-market-impact-assessment conditions, and we're aware that the government has increased these audits and that the audits have become stricter and the penalties have become more severe," McInnes said.

After a 2016 investigation, Kameron Coal was fined $230,000 and banned from accessing the temporary foreign workers program for 10 years, but those administrative penalties were reduced last year.

According to documents filed in Federal Court, Service Canada amended the penalties after taking into account the accuracy of the labour market assessment and the fact that the foreign workers were not hurt by the company's actions.

According to the list of non-compliant companies sanctioned so far, Kameron Coal received by far the biggest financial penalty at $54,000. The next closest was a Vancouver company at $21,000 and two other B.C. companies at $7,000 and $3,000.

Out of 63 companies listed, the majority have fines under $1,000 and some have no fines, but a ban on accessing the program for one or two years.

A Canadian worker would look at that and say, 'I can't take this job for this pay. It's too low. It's too low for me to accept.'- Halifax immigration lawyer Sarah McInnes

In most cases, the companies were sanctioned for pay or workingconditions "that did not match, or were not better than, what was listed on the offer of employment," or the job was not the same as the offer of employment.

The rules are meant to protect foreign workers from being underpaid or abused,McInnessaid.

But they also protect Canadians from being excluded for work by an employer who offers wages that are lower than a position is normally worth, she said.

"A Canadian worker would look at that and say, 'I can't take this job for this pay. It's too low. It's too low for me to accept,'" said McInnes. "So then the employer can say, 'We couldn't find a Canadian to fill these positions. We have to look outside of Canada.'"

Pay what's approved, says lawyer

McInnes said she advises clients applying for temporary foreign workers to stick to the agreement reached with the government and not to pay less or more than what's approved.

"As an immigration lawyer, I like to see these programs seen as a positive thing," she said. "We want to encourage employers to use the programs because I think we absolutely need foreign labour, and with proper use of the program, or proper advice and counselling, there shouldn't be penalties."

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