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Federal reforms and the silence of abused migrant workers in Canada
Changes to immigration policy reinforce the vulnerability of migrant workers.
On April 1, 2011, amendments to the Immigration and Refugee Protection Regulations came into effect, changing admission programs for legally recognized temporary foreign workers ―now the option preferred by the federal government over permanent immigration programs (see Figure 1). The reforms will ensure that only employers with a genuine job offer will be authorized to hire temporary foreign workers through a work permit. However, they do nothing to reduce the long-decried vulnerability of these workers.
In fact, temporary foreign workers will be further penalized in cases of federal recognition of an abuse by the employer or placement agency and, therefore, those whose rights and freedoms are violated will be encouraged to keep silent. Moreover, the government will officially revoke the right of temporary foreign workers occupying “low-skill” jobs to continue their participation in the socio-economic development of the country after their fourth year in Canada ―even if their employer still faces a labour shortage.
More specifically, rather than reducing the vulnerability of temporary foreign workers at the hands of their employers, the amendments imply that workers will be deemed non-compliant, and will lose their right to work in Canada (and could face deportation to their home country or lose their access to permanent resident status if employed as live-in caregivers), if the federal government learns and confirms that their employer has violated conditions of the employment program, such as the obligation to respect applicable work- and recruitment-related legislation. In addition, according to a news release issued by Citizenship and Immigration Canada (CIC) on March 23, 2011, the federal government will also deem non-compliant any temporary foreign worker who has paid for the services of a placement agency or of an immigration consultant not authorized under the law. The government will deny workers the right to employment in Canada on these grounds even if they were victims of false representation.
Work permits tied to employers and non-access to justice
The provincial systems intended to protect human and workers’ rights ―to which the protection of temporary foreign workers’ rights are limited, given the hands-off approach of CIC and Human Resources and Skills Development Canada (HRSDC)— still depend on the act of filing an official complaint against the employer. Given the losses and risks associated with being fired by their employer (most importantly the end of the right to work in Canada), and therefore implicit or explicit threats of deportation, temporary foreign workers hired under work permits tied to the employer often prefer not to file a complaint against an employer’s violation of their rights.
In response to this situation, the House of Commons Standing Committee on Citizenship and Immigration (CIMM) issued a report in May 2009 that outlined recommendations to the federal government in order to minimize the vulnerability of temporary foreign workers. In particular, the Committee’s report noted that a work permit tied to a specific employer gives employers “considerable power over the employee” and recommended it be replaced by a work permit linked to a province and a specific job sector. It also detailed the ways in which the obligation of residing with the employer put the temporary foreign worker at risk and consequently recommended the elimination of such conditions, imposed primarily within the Seasonal Agricultural Worker Program (SAWP) and for workers admitted as live-in caregivers.
In the past, the few temporary foreign workers in low-skill jobs who were unjustly fired by their employers and have obtained sufficient community support to file a complaint have, however, reached the limit, prior to obtaining justice and reparation, of their capacity to survive financially in Canada without the right to work, of their determination to live apart from their loved ones or of their right to be on the Canadian territory. The Committee further recommended the federal government grant all temporary foreign workers the possibility of requesting permanent residency regardless of the type of work performed, which would at the minimum ensure a possibility of meaningful access to the justice system should their rights be violated while in the country.
Nevertheless, the government decided to continue denying temporary foreign workers occupying low-skill jobs the possibility of requesting permanent residency, despite the fact that the majority of labour shortages these workers fill are not of a temporary nature, but rather are constant if not on the rise in Canada. For example, the number of temporary foreign workers employed as live-in caregivers quadrupled between 1996 and 2006, and the number arriving via the SAWP doubled: both programs totalled more than 20,000 in 2006 (see Figure 2).
Instead of recognizing their permanent contribution to Canadian society or imposing a limit to employers on the number of authorized annual renewals for hiring foreign workers on a temporary work permit, the federal government recently decided to penalize the foreign workers themselves after four years of work experience in Canada, by denying them further access to the Canadian labour market for four years. These new measures do not apply, however, to workers admitted through an international agreement (such as the SAWP).
As long as work permits are tied to the employer, temporary foreign workers will not receive the same protection as their Canadian counterparts. As organizations such as the United Food and Commercial Workers Canada have pointed out, as long as HRSDC continues to authorize the admission of temporary foreign workers to provincial job sectors where collective bargaining is not protected (e.g. the agricultural industry in Ontario) or that are not covered by workplace health and safety legislation (e.g. the domestic services sector in Québec), it is hypocritical to assert that employers authorized to hire these workers have first made an “effort” to hire Canadian workers.
Finally, as long as the selection criteria for immigration do not reflect all of the Canadian job market’s needs and, consequently, that temporary foreign workers in low-skill jobs do not have the option of requesting permanent residency, the system regulating the admission of temporary foreign workers will be systematically abused by Canadian employers and used to address non-temporary labour shortages, to the detriment of Canadian employment and the quality of working conditions in this country.
Eugénie Depatie-Pelletier is coordinator of the research branch on temporary foreign workers of the REDTAC-(Im)migration unit of the Centre for International Studies and Research of Université de Montréal (CÉRIUM). She is currently completing her PhD on programs for temporary foreign workers in low-skill employment in Canada at the Faculty of Law of Université de Montréal. Her principal publications and contact information are available on her webpage: http://www.cerium.ca/_Depatie-Pelletier-Eugenie.