Foreign construction workers discriminated against by employers

Tribunal awards more than $2 million to Latin American construction workers on project for Vancouver Olympics; pay, meal plan, accommodations were worse than for European workers
|employmentlawtoday.com

Two construction companies discriminated against 30 foreign workers from Central and South America who worked on construction sites in Vancouver, the British Columbia Human Rights Tribunal has ruled.

SELI Canada, a subsidiary of SELI SPA, a Rome-based tunnel boring company, and SNC Lavalin Constructors (Pacific), a Vancouver-based construction company, were in charge of the Canada Line project, a transit link being constructed in Vancouver for the 2010 Winter Olympics.

For the tunnel part of the Canada Line project, SELI brought workers with experience in tunnelling work on a hydroelectric project in Costa Rica in April 2006. In September 2006, the two companies brought workers from Europe to work with the Latin American workers.

During the project, the Latin Americans were paid about 60 per cent of what the Europeans were paid, and most were housed in a motel some distance from the worksite. The Europeans stayed in condominiums close to the the worksite. The Europeans were also given money for breakfast and dinner every day and restaurant tickets for lunch, while the Latin Americans were only given money for breakfast and tickets for the other meals. Tickets were redeemable at two restaurants.

The Europeans were also given expense allowances of $300 per month, regardless of whether they incurred that much, while the Latin Americans had to submit expenses and were given an average of $76 per month.

Lower pay for workers in low wage markets

SELI said the Latin Americans were paid less because its international compensation practices paid workers in relation to global labour markets. The workers earned less while working in Costa Rica, so they had a lower base to start from, SELI argued, and they did receive raises when they came to Vancouver. The companies also said the Europeans were more experienced and therefore earned higher wages.

The companies also said the workers agreed to the conditions of employment in a collective agreement.

The tribunal said SELI’s international compensation practices had no bearing on whether it discriminated against the Latin American workers, because the practices still had a negative discriminatory effect by treating them differently. It also found some Latin American workers were more experienced and the overall pay did not reflect differences in the experience of individual workers.

The collective agreement didn’t rule out discrimination, the tribunal said, because parties can’t contract out of human rights legislation through collective bargaining. Also, all the employees voted for the collective agreement, which included the Latin Americans, workers from the Phillipines and Canadian workers. There was no telling how many of the Latin Americans voted against it.

Differential and adverse treatment

The tribunal found the Latin Americans were treated differently and adversely from the European workers regarding their pay, accommodation, meals and expenses. It also felt the workers’ race, colour, ancestry and place of origin were factors in the treatment and established a

prima facie

case of discrimination.

In order to justify the discriminatory conduct, the companies had to establish that the differential treatment was a

bona fide

occupational requirement. However, it did not. Though SELI paid workers from countries with low wage rates lower wages than those in countries with high rates, it could not do so while they were working in British Columbia. The compensation practices also had no bearing on the different treatment with regards to their expenses, meals and accommodation.

“The application of SELI’s actual international compensation practices to the 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 in British Columbia,” the tribunal said. “As such, the application of those practices in British Columbia perpetuated, compounded and entrenched existing patterns of inequality.”

The tribuanal ordered SELI and SNC Lavalin to stop contravening human rights legislation and granted the union’s request to declare their conduct as discrimination. The companies were ordered to pay the Latin American workers the difference in their salaries from the European workers since they started on the project until its completion, which could be more than $2 million for the 30 workers. The Latin Americans were also awarded $10,000 each for injury to their dignity, feelings and self-respect caused by the adverse treatment.

For more information see:

C.S.W.U. v. SELI Canada and others (No. 8)

, 2008 BCHRT 436 (B.C. H.R.T.).

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