CIMM Committee Report

Introduction

Ensuring that temporary foreign workers experience all of the rights and protections to which they are entitled requires a multi-faceted approach, with efforts in the workers’ countries of origin and in Canada. As foreigners with potentially little to no knowledge of Canadian immigration policy, workers are vulnerable to misinformation and mistreatment by recruiters—in extreme cases, human trafficking can result. Once in Canada, workers are vulnerable to mistreatment by employers, health and safety violations, and other problems stemming from ignorance of the Canadian work and living environment. Further, workers are made vulnerable by the very fact of their temporary status.

In my research everything I've seen about the social rights implications for temporary foreign workers seems to indicate that the very temporary nature of their status creates barriers for their human and social rights.[66]

Witnesses underscored on several occasions how workers’ temporary status contributed to their vulnerability. By removing the threat (real or perceived) of being sent home, providing all workers with a path to permanent residency should significantly reduce the potential for temporary status to hold workers hostage to bad employment situations.

However, this provision alone is not enough to ensure worker protection. Reflecting the view that protecting workers should be a shared responsibility, the Committee proposes to strengthen protection by focusing on the four following areas: information provided to workers on rights and how to access assistance, recruitment agencies, worker support within Canada, and employer monitoring and compliance. In this chapter, we also address symbolic measures of protection that were suggested to the Committee.

Information Provided to Workers on Rights and How to Access Assistance

Many of the abuses and difficulties that temporary foreign workers experience stem from their ignorance of the laws and regulations in place at different levels of government. Testimony before the Committee suggested that workers may be unaware because they were never informed, because they were informed in a language they did not understand, or because they were intentionally misinformed.

Witnesses suggested that workers were uninformed in the following areas: employment standards, workers’ compensation, occupational health and safety, tenancy law, human rights law, immigration opportunities, legal recruitment practices, cost of living in Canada, payroll deductions, tax filing procedures, and entitlement to benefits such as health care, employment insurance, and workers’ compensation. Workers were also uninformed about where to go for assistance.

The Federal Government should ensure that migrant workers receive information, in their own language, regarding their rights and responsibilities in a neutral, uncomplicated and uncompromised manner.[67]

A. Providing information in the worker’s country of origin

The extent to which temporary workers are provided information in their country of origin varies considerably. Formal avenues of recruitment such as those used by the Mexican government for the Seasonal Agricultural Workers Program or by the International Organization for Migration are more likely to include valuable orientation information. Some individual companies also go to considerable effort. However, workers may be recruited by a range of entities, including multinational recruitment companies and local recruiters in the country of origin.

The Committee believes that more needs to be done to help temporary foreign workers make an informed choice about working in Canada. Information needs to be reliable and provided consistently. People are making significant decisions about relocating, based on information provided about wages and immigration opportunities. Canada needs to do its part to ensure workers are protected, at the same time fulfilling our human rights obligations and protecting our international reputation. The Canadian government can use its presence overseas to better inform workers before they leave their country of origin.[68]

Recommendation 22

The Committee recommends that the Government of Canada require each temporary foreign worker candidate to attend an in-person orientation session in his or her country of origin prior to the work permit being issued, and that NGO/non-profit settlement, counselling and advocacy agencies regularly provide input to the orientation session.

B. Providing information in Canada

Once the worker is in Canada, there are some mechanisms in place to try and ensure that he or she receives the information required for working and living here. CIC produced a pamphlet available in six different languages[69] that advises workers of their rights and responsibilities and provides them with current information about relevant provincial labour offices. Employers are required to inform workers about health and safety and to sign them up for health and workers’ compensation benefits.[70]

In regions that have regularly hosted seasonal agricultural workers and live-in caregivers, there are community organizations that provide orientation and some services. These organizations have been instrumental in informing workers of benefits and assisting them to apply. For example, the United Food and Commercial Workers Union reports assisting more than 4,000 migrant workers with their claims for parental benefits through Canada’s EI program, with an average claim of $5,000.[71]

Testimony also indicated that sometimes workers and service providers were ignorant of the workers’ eligibility for certain social programs. In her discussion of workers’ compensation benefit, for instance, Janet McLaughlin wrote:

Many health care practitioners are not well informed about migrant workers and their rights. Some physicians are unaware that these workers are eligible for workers’ compensation, and hence even in the face of obvious work-related injuries, physicians often do not apply for benefits.[72]

The Committee believes that every effort should be made to ensure that temporary foreign workers receive the benefits and social programs for which they are eligible. Given the increasing numbers of foreign workers, the onus should be placed on Canadian service providers to understand the circumstances of foreign workers and facilitate their receipt of benefits. This task requires better communication with front line service workers about the circumstances of temporary workers.

While the federal government and employers clearly bear some responsibility to inform program participants, other government and community actors can also take initiative. For instance, the Alberta Workers Compensation Board has a fact sheet on their website entitled “Information on Workers Compensation Benefits for Temporary Workers”.[73] More programs and services could follow this example. Frontline workers in the immigrant settlement sector also need to be informed about temporary foreign worker programs.

Recommendation 23

The Committee recommends that temporary foreign workers be required, within three months of their arrival, to meet with an accredited NGO to follow up on labour legislation compliance.

Recruitment Agencies

Recruiting workers overseas and then processing the paperwork to bring the workers to Canada can be a long and complicated process. Accordingly, an industry of third-party recruitment agencies has sprung up to do the legwork and handle all the details for companies too busy or too small to themselves engage in foreign recruiting. Such recruitment agencies are also known as labour brokers, employment brokers or recruiters.

Reputable recruiters provide a valuable service helping to place foreign workers with companies, legitimately earning their fee from the employers. However, some recruiters charge foreign workers directly for finding them jobs,[74] as well as receiving a fee from the employers. In some cases, they arrange for wage deductions to cover the fee, or for financing.[75] In other cases, workers mortgage their homes[76] or borrow from family and friends for the chance to come to Canada and work. The Committee heard evidence that some workers spend almost all their time in Canada working to pay off their loans and never make enough to provide a better life for their families, which was their purpose for coming to Canada in the first place.[77]

Brokers commonly charge [temporary foreign workers] thousands of dollars for their services, and often mislead the workers about immigration prospects, the nature of the work and other matters.[78]

The Committee heard of other types of questionable conduct some recruiters engage in, including:

• charging workers a fee to bring them to Canada for nonexistent jobs, or for jobs from which they are laid off shortly after arrival;[79]
• exaggerating the amount workers can expect to earn in Canada, sometimes grossly;[80]
• providing translations of contracts that are inconsistent with the original English or French version in describing work and other details of employment;[81]
• giving incorrect information about opportunities to obtain permanent resident status once in Canada;[82]
• charging workers unconscionable fees for extra services, such as obtaining an extension of their work permit,[83] transportation, housing,[84] document translation or interpretation services;[85]
  
• providing inaccurate advice about the possibilities of family reunification in Canada, workplace standards and rights,[86] language training, or other training or upgrading opportunities;[87] or
• requiring workers to change employers because the recruiter received a better offer from another employer.[88]

Because regulation of recruitment agencies is a provincial matter, there is no set of standard rules governing recruiters across the country. Only some of the provinces regulate recruiters. For example, in Alberta and Manitoba, employment agencies (which include recruiters) must be licensed and may not charge a fee from a person for finding them employment.[89] Prince Edward Island plans to enact similar legislation.[90]

However, according to some witnesses, even in provinces where recruiters are regulated, “current regulations have proven ineffective in stopping the practice [of charging workers a fee].”[91] The Committee heard information about recruiters circumventing provincial legislation by incorporating in a province other than the one in which they primarily operate,[92] or incorporating in a foreign jurisdiction making it even harder for Canadian enforcement officials to reach them.[93] One witness even provided the name of a recruitment agency that he claimed was blatantly violating provincial recruiter regulations squarely in the province, apparently without repercussion.[94]

In the interest of protecting vulnerable foreign workers, the federal government needs to take steps to stop these practices. The Committee believes that there is no one, simple solution to the problem, and that an appropriate response has various elements. Providing information to all parties and making better use of existing legal provisions are solutions that respect provincial jurisdiction and have the potential to reduce worker vulnerability.

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A. Providing information to all parties

The best approach for dealing with unscrupulous recruiters is to avoid them altogether. The Committee believes that providing workers and employers with information about their rights and liabilities, and best practices in relation to recruitment practices could go a long way to ameliorating current problems.

Recommendation 24

The Committee recommends that the government take all necessary steps to inform workers abroad of the legal provisions regarding recruiters in the province in question.

For employers, the government should provide the information they need to make a responsible decision in engaging a recruitment agency. In addition, because the task of finding and recruiting a temporary foreign worker without the help of a recruiter is daunting or impossible for many small- or medium-sized businesses, an Internet forum where employers could meet, coordinate their efforts and share their experiences could help employers work cooperatively, pool resources and hopefully avoid using unscrupulous recruiters.[95]

Recommendation 25

The Committee recommends that the Government of Canada use the Internet and other means to make the following information readily available to employers who hire temporary foreign workers:

• a warning about unscrupulous recruitment agencies and descriptions of the shady practices in which they may engage;
• information about countries in which such problems are particularly acute;
• a statement of best practices against which an employer may judge the practices of a recruitment agency the employer is considering engaging; and
• information about employers’ or employees’ liability for fees charged by recruitment agencies to the workers it places.

In addition, the website should provide an open forum in which employers can “meet” to pool resources and share experiences.

Recommendation 26

The Committee recommends that the Government of Canada produce simplified management guides enabling employers and recruiters to better understand the applicable standards, regulations and the administrative terms and conditions of the program, such as the prohibition to withhold personal documents, particularly passports and health cards of migrant workers.

B. Prosecuting illegal conduct under existing provisions[96]

Unscrupulous recruiters who operate in provinces or territories that have not yet regulated recruitment agencies are not completely free to operate without scrutiny. There already exist various federal and provincial laws under which certain unethical recruiter practices could be prosecuted.

Section 118 of the Immigration and Refugee Protection Act[97] (IRPA) makes it an offence to “knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.” The fact that this offence does not require force or the threat of force, but could be based on fraud or deception alone makes it a viable possibility for prosecuting recruiters. The penalty for committing this offence is a fine of up to $1 million or life imprisonment, or both.

Criminal Code[98] sections 279.01 to 279.04 set out three human trafficking offences.[99] The first[100] contains the global prohibition of trafficking in persons, defined as the recruitment, transport, transfer, receipt, concealment or harbouring of a person, or the exercise of control, direction or influence over the movements of a person, for the purpose of exploitation. Key to this definition is the fact that the criminal offence of trafficking in persons does not require movement across an international border to be triggered, but prohibits any situation where a person is moved or concealed and is forced to provide or offer to provide labour, a service, or an organ or tissue.

A victim’s consent to trafficking is never a valid defence because of the exploitation that is inherent in the offence.[101] This primary trafficking offence is punishable by a maximum of 14 years imprisonment, or life imprisonment under aggravated circumstances.

Section 279.02 prohibits a person from benefiting economically from trafficking and carries a maximum penalty of 10 years’ imprisonment. Finally, the third prohibition outlaws the withholding or destroying of identity, immigration, or travel documents to facilitate trafficking in persons, and carries a maximum penalty of five years’ imprisonment.

Beyond these specific offences, a number of generic provisions in the Criminal Code could be used to prosecute specific forms of exploitation and abuse. These include offences such as fraudulent documentation, physical harm, abduction and confinement, intimidation, conspiracy and organized crime.

Even cases that do not involve physical harm, a criminal or immigration offence could be made out if the worker’s decision to come to Canada is based on the recruiter’s deception about conditions and opportunities that await the worker in Canada, or fear of threats posed to the worker or his or her family if they are unable to pay back debts incurred to come to Canada at the hands of a loan shark.

In addition to being subject to existing legal provisions, recruiters could also be held accountable by enforcing certain professional standards, if a recruiter is dispensing advice or services on immigration matters. A recruiter who provides false, incorrect or misleading advice regarding Canadian immigration law to a foreign worker, or who charges a fee to represent or advise the person in an immigration matter (such as obtaining an extension on a work permit) could be referred to the Canadian Society of Immigration Consultants, if the recruiter is a member of that organization. All those who are not (which might be expected to be the vast majority) could be reported to the appropriate provincial law society for practising law or providing legal services without a license, but only if they provide the advice or legal services in Canada.

Recommendation 27

The Committee recommends that the Government of Canada refer appropriate cases of abuse by recruitment agencies to law enforcement agencies, the Canadian Society of Immigration Consultants, or provincial law societies for prosecution or discipline under existing legal provisions, and that it encourage employers, workers and other stakeholders to do the same.

Worker Support

The AFL found that foreign workers are at a disadvantage because they are not aware of their rights, do not know how to access these protections, and can be easily persuaded or dissuaded by employers from seeking due compensation. Most importantly, Alberta’s employment standards system is complaint driven. Therefore, no complaint, no problem.[102]

Testimony heard before the Committee made it clear that providing information to workers might not be enough to avoid abuses and ensure that they receive benefits to which they are entitled. As the quote above indicates, foreign workers may be inhibited by the lack of employer cooperation and the requirements of complaint-driven protection regimes. Temporary foreign workers need to be able to turn to a third party for assistance, someone independent from the employment relationship and yet familiar with the temporary foreign worker programs and relevant legislation.[103]

The Committee was encouraged by the advocacy services offered in Alberta. The Alberta Federation of Labour started providing advocacy services in April 2007, assisting temporary foreign workers with filing employment standards or human rights complaints, finding alternate employment, and dealing with other problems, such as immigration applications and recruitment fees. In December that same year, the provincial government opened two advisory offices for temporary foreign workers that offer help resolving employment standards or occupational health and safety issues as well as referrals to the appropriate authority for other matters.

The statistics shared with the Committee suggest that there is a strong demand for these services: one witness quoted a news story claiming that the provincial advisory offices had received 800 complaints from temporary foreign workers.[104] The advocacy office initiated by the Alberta Federation of Labour received inquiries from more than 1,400 people and opened case files for 123 temporary foreign workers in the first six months of operation alone.[105]

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Employer Monitoring and Compliance

Our staff received a phone call from one of the women working on [a] farm—she spoke in a low voice, very fearful of being overheard. She said the women on the farm were constantly watched, and that they were rarely allowed to go anywhere without an employer representative. She related that their work day was typically from 6:00 am to 9:00 pm with one half-hour break during the whole period.[106]

During our travel across the country, the Committee heard numerous stories of employers flouting provincial employment and other standards, and/or violating commitments made to the workers or in the LMO process.[107] For example, some employers:

• pay lower wages than those indicated in the LMO;
• don’t pay for overtime;
• make illegal deductions from the worker’s wages;
• misinform workers about their entitlements to benefits;
• require workers to work for extremely long hours with few breaks;
• don’t provide adequate lavatory facilities;
• expose workers to undue health and safety risks;
• prevent or obstruct workers from leaving the property after work hours;
• house workers in extremely cramped or degrading conditions;
• retain workers’ passports, health cards and other such documents;
• require workers to perform duties that are substantially different than those for which they were recruited;
• deny workers’ medical care;
• frustrate workers’ attempts to make private phone calls; and/or
• threaten to repatriate workers who complain or otherwise do not obey orders.

Time and again during our travel across the country, witnesses told the Committee that reacting to worker complaints alone is insufficient to enforce employment standards and conditions for temporary foreign workers—employer monitoring is required.[108]

Under section 92(13) of the Constitution Act, 1867, provincial governments have jurisdiction to regulate employment standards, including wages and working conditions, as well as housing. Regulating includes setting standards and enforcing those standards. The federal government has no jurisdiction to enact laws in these areas (except in limited cases that are generally not applicable to temporary foreign workers.) However, the Committee believes that the federal government has a role to play in employer monitoring and compliance in the context of the temporary foreign worker program. The federal government established the program, authorized the employer to hire a foreign employee, approved various working conditions for the employee (such as wages), and authorized the employee to enter Canada and work for the employer. Accordingly, we believe that the federal government has a continuing responsibility to ensure that the program is functioning properly.[109]

To that end, the Committee agrees with witnesses who called for the federal government to establish monitoring teams to spot check employment and employer-provided housing conditions of temporary foreign workers.[110]

All it takes is a team of government officials out there, unannounced spot checks, and the word will spread like wildfire that the government is watching.[111]

Such checks should be performed in response to evidence of possible unacceptable conditions related to a specific employer, as well as completely at random.

Recommendation 28

The Committee recommends that the Government of Canada establish monitoring teams to perform unannounced spot checks of working and housing conditions on temporary foreign worker job sites. Visits of the monitoring team could be requested by workers through a 1-800 number or via the internet. Possible infractions or unacceptable conditions should be reported to appropriate provincial authorities for further investigation and response. The Government of Canada would place a stay on removals for individuals involved in an ongoing investigation and/or with matters before the courts or other appropriate bodies.

The Committee heard evidence of employers who systematically or egregiously violate provincial labour standards or the terms of an employment agreement and yet are permitted to continue hiring temporary foreign workers. In the interests of abuse prevention and deterrence, the Committee agrees with witnesses who stated some employers should not have access to the temporary foreign worker program.[112]

Recommendation 29

The Committee recommends that the Government of Canada deny an employer future access to workers for a period of at least one year and for a period of five years in repeated or egregious cases if the employer violated provincial labour standards, the terms of (an) employment agreement(s) or provincial recruitment provisions.

Symbolic Measures of Protection

A number of witnesses who appeared before the Committee recommended that Canada become a party to the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.[113] Unfortunately none of the witnesses who appeared before us provided a detailed analysis of the legal and other changes Canada would be required to implement to conform with the articles of the Convention in order to ratify it. Given this lack of information and noting that none of the 52 states that have already signed the Convention is an industrialized, migrant-receiving country, the Committee is not prepared to recommend that Canada become a party at this time. Rather, work should be done to fully analyze and assess the implications of committing to ratify the Convention before any decision is made.