The devil will be in the detail: the federal government unveils the new temporary foreign worker regulations
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The Law of Work
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When revelations came to light that a contractor of the Royal Bank of Canada (RBC) was utilising the Temporary Foreign Worker Program (TFWP) to replace domestic Canadian workers, the public was livid. A visibly discomfited Stephen Harper fronted the cameras and admitted that his government “had been concerned about the growth” of the TFWP and that they would be “bringing forward reforms.”
The Harper government has now unveiled the second tranche of these reforms. The Regulations Amending the Immigration and Refugee Protection Regulations (Amending Regulations) makes a number of changes to the regulatory architecture which governs Canada’s various labour migration schemes. These changes mainly affect the TFWP and the Live-in Caregiver Program (LCP).
Ostensibly, the aim of temporary migrant labour schemes is to allow employers to import foreign workers where there is a demonstrable labour shortage. There is a live debate about whether labour shortages, especially in low-skilled occupations, are caused by structural characteristics of the labour market or whether Canadians are eschewing these jobs because of the low rate of pay and difficult employment conditions. Employers maintain that there are genuine labour shortages in particular industries, occupations and localities.
To understand the new changes it is first necessary to know something about the way in which temporary migration is currently regulated. At the federal level, temporary labour migration schemes are jointly administered by Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development Canada(HRSDC). Employers seeking to engage workers must first obtain a Labour Market Opinion (LMO) from HRSDC which establishes, among other things, that no Canadian employees can be found to fill these positions. To obtain a work permit to enter Canada, the migrant workers must satisfy further requirements imposed by CIC, including undergoing a health test and a criminal record check. The labour rights of the temporary migrant workers are usually enforced by provincial governments because labour law and health and safety are within the jurisdiction of the provinces where most private sector employers are concerned.
In response to two reports which came out in 2009 – one by the House of Commons’ Standing Committee on Citizenship and Immigration and another by the Auditor-General – the government in 2010 introduced changes to the Immigration and Refugee Protection Regulations SOR/2002-227 (which came into force on 1 April 2011). The principal aim of these changes was to verify the “genuineness” of an employer’s offer of employment to a migrant worker, which the government argued was necessary to “lead to a more systematic and rigorous approach to the assessment.” One of the factors which went towards establishing the authenticity of a job offer was the employer’s previous conduct and specifically whether it had complied with relevant labour standards. Failure to comply with employment rules could result in an employer being placed on a “blacklist”, with the result that the employer could be prevented from accessing the TFWP for a period of time. Although these changes were justified using the rhetoric of rights protection for migrant workers, perversely, the regulatory changes had the opposite effect because a migrant worker could be penalized for accepting employment with a blacklisted employer.
To their credit, the federal government has acknowledged the total failure of these previous measures. The Regulatory Impact Statement for the Amending Regulations explains the inadequacy of the previous process. For example, even if evidence came to light during the processing of a LMO request of an employer previously breaching the labour rights of a worker, this employer could only be listed on the blacklist if a foreign worker applied for a work permit. This unworkable state of affairs explains why in over 2 years of operation there are still no employers named on the blacklist.
The Amending Regulations aim to address this situation, by doing several things:
1. make changes to the factors for assessing LMO and work permit applications,
2. impose additional conditions on employers and temporary foreign workers, and
3. allow for CIC and HRSDC to conduct inspections to ensure that these conditions are being complied with.
The Amending Regulations make clear that the decision to grant a LMO or work permit will still be made on the basis of information provided by the applicant. There have been serious questions raised about the rigour of the process by which LMOs have been granted in the past, and attempts to look behind the process have so far met with little success. The government has passed up an opportunity to introduce greater transparency into the system, and thereby, meaningfully address the level of public concern about this aspect of the process.
However, the power for CIC officers and delegates of HRSDC to conduct proactive inspections to verify that an employer is complying with all requirements (including that efforts are being made to hire and train domestic workers and that federal and provincial laws regulating employment are being complied with) holds out some real promise. It is well established that low-skilled workers are often not in a position to pursue individual complaints in circumstances where their rights have been violated. Proactive inspections by regulatory authorities present a much better avenue to ensure that vulnerable workers are able to claim their rights. Under the Amending Regulations, triggers for inspection would occur if either CIC or HRSDC have a reason to suspect non-compliance or an employer is randomly chosen.
Under the proposed amendments, the authorities would have the power to require an employer to provide documents and answer any questions, inspect anything on the premises, and make copies, take photographs or video recordings. However, in the case of the LCP, these agencies would only be able to enter a home dwelling after obtaining a warrant issued by a justice of the peace. Unsurprisingly, employer bodies, such as the Canadian Chamber of Commerce, have already attempted to scupper the changes.
Advocates who work in the sector have long called for a mechanism for the federal government to hold employers accountable. However, whether proactive inspections will actually eventuate in robust monitoring and enforcement or only remain a nebulous threat will depend upon a number of factors. Firstly, it is clear that both CIC and HRSDC will need to be resourced adequately to carry out these inspections. Secondly, these agencies will have to share information with each other, and work closely with provincial bodies responsible for monitoring labour standards. Thirdly, there are a number of unions and non-government organisations, which work closely with temporary migrant workers and have access to detailed information about patterns of non-compliance, that should be consulted early and often.
Although a step in the right direction, there are many more reforms which are necessary to ensure that labour migration schemes are not allowed to undermine prevailing conditions of employment. If the Harper government is serious about restoring the integrity of the TFWP- by ensuring that migrant workers are only being used to fill temporary labour shortages and migrant workers are being treated ethically- it should consider additional reforms, such as non employer-tied work permits and providing temporary migrant workers with a pathway to permanent residency.
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