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Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

The B.C. Human Rights Tribunal in C.S.W.U., Local 1611 v. SELI Canada Inc. (No. 8) (65 C.H.R.R. D/277) has delivered an important ruling on the discriminatory treatment of migrant workers from Latin America. In a globalized economy, this decision seems to be a marker, revealing important truths about real conditions in the current world of work in Canada, and pointing to more problems in the future. Migrant workers, and their treatment, may become an increasingly important topic for human rights adjudication.

SELI Canada did the tunneling work for the Canada Line, which is a new rapid transit rail line that will link downtown Vancouver with the Vancouver International Airport. SELI paid workers from Costa Rica and Ecuador less than it paid European workers, even though they were performing the same work. It also housed the Latin American workers in a motel, not in apartments like the European workers, and gave them meal tickets rather than a meal allowance. Giving the Latin American workers meal tickets meant that for about two years they ate all their meals in the same two restaurants.

SELI defended the pay difference and different treatment on the grounds that it had “international compensation practices” designed specially for its mobile and globalized workforce. Workers moved between countries to work on SELI projects. However, their pay rates were, to a large extent, determined by the wage rates in the country where they first worked for SELI. The Tribunal found that SELI’s international compensation practices were simply a way of keeping the pay of Latin American workers low. The practices perpetuated discrimination against the Latin American workers, by continuing to pay them at a lower rate, even when they were working in Canada, and working alongside European workers who were performing the same work but receiving almost twice as much.

The complaint reveals two central issues. First, migrant workers need union protection. This complaint would never have seen daylight if it had not been filed and advocated for by the Construction and Specialized Workers Union, Local 1611. The workers are subjected to various forms of intimidation. If bringing a complaint forward relied on individual migrant workers being able to do it, it just would not happen.

The migrant workers need union protection, but the case also demonstrates that, for a union to obtain certification for vulnerable workers, who will be in the country for a short time, is also difficult.

Perhaps most important, governments seem to be absent from this story, even though the migrant workers are being paid with public money. The Canada Line is an infrastructure project, funded by the governments of Canada, British Columbia and Vancouver. These three levels of government are not parties to the complaint, having contracted out the work. And apparently it was contracted out with no requirements that ensured that migrant workers would not be discriminated against. The three governments could have prevented this complaint, but did not do so. If they were employing these workers directly, they would be on the hook for the discrimination. They seem to have devised a way to contract out of human rights obligations.


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