Needed Change to the Temporary Foreign Workers Program

Much has been said about what is wrong with the Temporary Foreign Workers Program (TFWP), particularly in relation to certain categories of workers, whether fundamentally about the notion of “migrant worker” or about details of the program. One of the serious problems with the program has been the way in which workers have been tied to particular employers. A recent change, allowing workers to change employers, has the potential to address one of the negative aspects of the system.

Under the program, designed to allow employers to hire foreign workers when they cannot find domestic workers, employers can apply to hire workers from other countries to satisfy a number of different occupational needs: in-home caregivers, agricultural workers, academics, skilled or unskilled, high or low-waged workers. Agricultural workers may also enter Canada through the Seasonal Agricultural Worker Program, created in 1966. Each category has its own requirements.

Criticisms of the program have tended to focus on agricultural workers, low-wage/unskilled workers and in-home caregivers: see major critiques by Fay Faraday, the Law Commission of Ontario (in the context of vulnerable workers more generally), both released in 2012, and Jenna Hennebry, Janet McLaughlin and Kerry Preibisch (impact on health and lack of access to health care) in 2015. More recent media stories from 2019 include “Calls for reform after Ontario migrant workers claim they worked in terrible conditions” and “Threats, crippling debt and lives lost: Human trafficking leaves foreign workers suffering in silence“.

Over the past few years, there have been a number of changes to the program that are intended to improve the conditions of workers. For example, employers who are non-compliant with the terms of the program or with the arrangements under which they hired a worker under the TFWP will be listed on Immigration and Citizenship Canada’s website. In addition to the name of the employer, the reason for non-compliance is listed (for example, “[t]he employer did not have the money to pay the wages agreed to with a live-in caregiver”, “[t]he employer broke federal and/or provincial/territorial laws about hiring and recruiting employees in the province/territory where the temporary worker works” or “[t]he employer did not put in enough effort to make sure the workplace was free of: physical abuse, sexual abuse, psychological abuse, and financial abuse.” (Rules on compliance/non-compliance are found here and consequences for non-compliance here.)

In 2017, the federal government undertook a review of the “primary agricultural stream” aspect of the TFWP; however, its recommendations addressed other aspects of the program, as well. The review found that agricultural workers were still experiencing the same issues that the studies had identified in 2012: “inadequate housing/accommodation arrangements in some cases; concerns with working conditions, compensation, and enforcement of labour laws; inconsistent working conditions and treatment of SAWP vs. non-SAWP workers; concerns that despite making contributions, they may not be eligible for social programs such as Employment Insurance (EI) and the Canada Pension Plan; need for additional support services and protections, such as information on their rights and support to exercise them, and on how to access resources (for example, health care, training); harassment, abuse, punishment/retribution for speaking out, and barriers to exercising rights; and, incomplete and sometimes inaccurate information about Program conditions, employer responsibilities, rights as an employee, and entitlements as a TFW.”

The federal government now permits temporary foreign workers who have been abused to apply for an open permit. As The Globe and Mail reports, the government established a pilot program in British Columbia in 2016 under which it issued 51 permits. Under the new system, the definition of “abuse” is broad and, as Immigration, Refugees and Citizenship Canada’s website explains, includes “Any behaviour that scares, controls or isolates you could be abuse. Abuse can be physical, sexual, financial or mental.” The non-exhaustive list includes: physical harm, sexual harassment, insults, control over movement and keeping the workers away from friends or co-workers, stealing and “taking some or all of the money [the worker is] paid”, threats and intimidation and “forcing [the worker] to commit fraud”. (I note that other categories of workers are subject to other processes, including being able to address abusive situations: for example, there is an emergency process for live-in caregivers.)

However, the open permit is temporary and cannot be renewed. The benefit is that it allows the worker to leave the abusive situation and find a new position, while applying for a new work permit. The website spells out the application process, which with limited exceptions will have to be completed online, requiring workers to obtain evidence, to have access to a computer and scanner (in order to submit the evidence) and wait for up to five days for a response. In many, if not most, cases, this will mean that the worker will have to obtain assistance in completing the application. It is in the nature of abuse that it may be particularly difficult for workers to leave the workplace.

Many “guest” or “migrant” workers are satisfied with their circumstances; however, this has not been and is not always the case. Yet workers have been afraid to complain because of fear of employer reprisals and loss of their job, as well as other negative impacts. Given the broad definition of abuse, many of the poor conditions that workers in some areas (such as agricultural workers) face may be addressed by the new temporary open permit. Live-in caregivers who face harassment and abuse also have the opportunity to change employers. Other conditions, such as poor housing, may be contraventions of the agreements made by employers and the conditions they are expected to provide; however, they may also rise to abuse. Any attempt to improve conditions face similar challenges: many workers are located in rural areas and have difficulty finding transportion to support services, language barriers make it difficult for workers to communicate their concerns, workers need to be able to access information easily, among other barriers.

While the availability of the open work permit does have the potential to provide workers with the opportunity to escape abuse in its myriad forms without ramifications, it will not be possible to determine whether it is effective without a greater understanding of how it will be implemented, ensuring that workers are provided with adequate and timely information about the program and resources for the support that will be needed to help workers access it.