Trafficking and Labour Exploitation: Canada’s Temporary Foreign Workers Program

Submitted by: Dunia Nasri, Teodora Tellieva, Lama Khodr, Tamara Lauzon, Lianne Roberge

Date: Monday November 26, 2102

TABLE OF CONTENTS_________________________________

There is no designated bureaucracy assigned to administer and monitor the TFWP. Rather, three preexisting governmental organizations monitor the admittance process at different stages. The bodies and their respective roles are as follows:

1. 
   HRSDC: Provides a Labour Market Opinion (LMO) at the request of the employer. The organization communicates exclusively with the employer.⁴
   
2. 
   Citizenship and Immigration Canada (CIC): Assesses whether foreign workers may enter Canada and determines the admissibility of the proposed migrant workers. The organization also provides the administrative documents for entry into Canada.⁵
   
3. 
   Canada Boarder Services Agency (CBSA): Examines foreign workers seeking entry at the Canadian border and determines whether to admit or refuse the migrant workers.⁶
   

There are several stages both the employee and employer must complete prior to becoming part of the TFWP.

1. Apply for Labour Market Opinion (LMO), upon which the following must be demonstrated:

1. 
   Efforts have been made to recruit willing Canadian workers. A job posting must be advertised for a period of no less than 14 days within 3 months of applying for a LMO.⁷
   
2. 
   Wages for TFW must be consistent with the prevailing wages. Employers can refer to NOC to determine the appropriate wage, and must consult NOC every 12 months to ensure that the wages are consistent with what is proscribed in the NOC.⁸
   
3. 
   Work conditions must meet the Labour Standards as prescribed in the designated provincial employment standards legislation.⁹
   
4. 
   Employers must list the benefits of recruiting a TFW to the Canadian Labour market.¹⁰
   

1. 
   Check application processing times (this will vary depending on the location of worker).¹¹
   
2. 
   Obtain an application package. This includes the job offer from the employer as well as proof that job requirements are met, and a positive LMO letter.¹²
   
3. 
   Determine if a passport or visa is required.
   
4. 
   Pay correct processing fee (for visa) and submit application form.¹³
   

If the employer wishes to extend an employee’s stay, employers must re-apply for a LMO prior to the TFW’s visa expiry date.¹⁴ If an employee is interested in remaining in Canada, they may apply for a new work visa; however, there is no guarantee that the application will be accepted.¹⁵ The processing period for an employee who is applying to work for the same employer is an average of 80 days.¹⁶ During the processing time, the TFW is permitted to stay and work for the employer. Employees who are seeking to work for a new employer must wait an estimated 25 days, and cannot work for their new employer during that time span.¹⁷

The economic incentives created by the TFWP compromise the program’s ability to respect human rights. Employers use the program as a means of maximizing profits, which then can result in neglect, the exploitation of a vulnerable group, and situations of trafficking.

Recent changes to the TFWP have enabled employers to pay their workers up to 15% less than the Canadian standard, as long as the same principle applies to Canadian workers.²¹ The program was established with the intention of fulfilling mutual needs of employers and workers. For instance, Guatemalan workers are enticed to come to Canada by a payment of $400 CAD, which is 17% of the average annual Guatemalan income.²² On the surface, both the employer’s interests and the worker’s interests appear to be balanced.

However, it is the employers’ prerogative to rehire migrant workers. They often assume there is an indefinite source of workers from which to draw upon. As such, there is a real potential for manipulation here as some employers may participate in trafficking rings. For instance, it is not uncommon for workers to experience threats against their family back home if they speak out against their employers and complain about their inadequate pay.²³ In fact, Alberta’s Minister of Employment and Immigration has confirmed that 74% of over 400 workplaces in the province had violated the Employment Standards Act regarding rates of pay.²⁴

Economic Implications for Canada

By prioritizing short-term economic interests, the TFWP has singularly benefited employers at the hands of migrants. Under the LMO, employers claim that Canadians are unwilling to fulfill these positions; however, there is effectively no methodology to determine a national labour shortage. This ignores the possibility of there being skilled workers in Canada willing to fulfill these positions and is detrimental to the Canadian economy as Canadian citizens are ignored and left without jobs. Canada’s reliance on foreign workers continues to increase as national birth rates will peak and begin to diminish by 2030.²⁵ Therefore, Canada has a strong incentive to establish foreign workers who have developed job-specific knowledge and skills during their time in Canada. In essence, Canada is not efficiently developing its human resources; the state’s efforts are going to waste by embracing temporary migration which requires employers to continuously retrain workers, since the maximum duration of a visa is 24 months. This facilitates trafficking groups, who might be targeting workers desperate to remain within Canadian borders.

Migrant workers have limited rights protections under the Canadian legal system. The legal mechanisms that govern migrant worker’s rights in Canada are prescribed under the Canadian Charter of Rights and Freedoms as well as provincial human rights codes.²⁶ The Charter of Rights guarantees migrant workers the rights under section 2, 7, and 15 as they are rights that apply to every individual in Canada.²⁷ Despite the latter, there are effectively no provisions that specifically uphold the rights and freedoms of TFW. The matter is divided between the federal government who controls immigration and the provincial legislature who governs employment relations and occupational standards.²⁸ Both jurisdictions, however, have failed to protect the rights of migrant workers in Canada. Upon their arrival to Canada, many workers are denied the very rights they were promised. A prime example of this is illustrated in the Labour Relations Act, which does not guarantee live-in caregivers and agricultural workers under the SAWP and NOC C & D the right to unionize.²⁹ These groups, however, make up the two largest categories of migrant workers. ³⁰ The workers under this group are also required to reside in the employer’s home, or in housing that is provided by the employer.³¹ Thus, they are unable to speak out about their precarious working environment and poor living conditions, as they risk losing their jobs and housing.

A large criticism of Canada’s programs regulating migrant workers regards an overall inability to adequately provide each worker with access to their legal rights, both in knowing what their rights are and in attempting to enforce them. The system itself is complaint-based, which means that in order for an employer to be held accountable for their exploitative labour practices, the migrant workers themselves must make a complaint. Thus, it is crucial that migrant workers know their rights in order to be able to enforce them. The problem, however, is that many workers are uneducated about which rights they are entitled to. For example, although certain migrant workers have the right to seek union representation, they encounter several barriers in practice. This is because TFWs arrive for a limited period of time; thus, their interest in pursuing collective representation is unlikely to be strong.³² Regrettably, the bodies responsible for administering these programs assume no responsibility for ensuring that these workers receive the same treatment as Canadian workers.

Immigration and labour laws fail to effectively regulate Canada’s migrant labour market. Such inadequacies are revealed in the several phases of the labour migrations cycle. The following describes a two of these phases and highlights the flaws which enable the trafficking of migrant workers in Canada.

1. 
   Tied Work Permits
   

2. 
   Road to Permanent Residence
   

very lengthy for workers who seek other placements as they require a new work permit.³⁹ Moreover, workers in the NOC C & D category are entirely ineligible to apply for immigration.⁴⁰ This demonstrates that the current immigration policies act as direct barriers for TFWs in obtaining permanent residence and citizenship. Such a status would allow for the full recognition of skills and permit these workers to fully exercise the rights they are entitled to.

Power differentials are programed into the very structure of Canada’s TFWP. One can immediately observe the power differentials at play from the language used throughout the program. The title “migrant worker” or “temporary foreign worker” is not ideologically neutral one as it applies to the worker's position within Canadian society. Rather, these terms imply that an individual is directly dependent on the status of their work to remain in Canada or to hold any rights at all; immediately placing them into a category of sub-citizen. Additionally, labeling migrants as "foreign" contributes to a nationalist discourse that promotes ideologically to each worker’s legal and social disentitlement within labour market and society.⁴¹

The onus of educating migrant workers of their rights rests on the employer themselves.⁴² This establishes a conflict of interest between employee rights/employer obligations versus employer interests. Those who will be benefitting from the labour itself will also be the ones responsible for educating employees about what they cannot do as an employer. Employers are not held accountable in educating their workers of their rights.⁴³ This structural design leaves room for employers to maximize their own interests by withholding crucial information from their employees, such as working conditions, living conditions, etc.⁴⁴ Ultimately, this situation leaves employees vulnerable to having their labour exploited by their employers.

Secondly, employers can simply choose to even lie to their employees about their rights.⁴⁵ A commonly reported lie is one regarding payment, where employers will force employees to deposit their paycheck and immediately withdraw a large amount of that money to give back to their employer for “taxes”.⁴⁶ As there is no overhead regulation of worker-employer relationships and no monitoring of the power differentials at play, migrant workers continue to suffer, and remain misinformed and exploited by employers who continue to reap all of the benefits.

Employee and Employer Power Differentials

The ability of these workers to remain in Canada rests on the status of their work permit, and the status of their work permit rests in the hands of their employer.⁴⁷ As stated previously, each worker is tied to a specific employer, to a specific job, and to a specific time period. Therefore, if an employee wishes to switch employers they must apply for another work permit with a new employer- leaving the employee jobless and in many circumstances homeless during the application process.⁴⁸ Therefore, the very nature of these permits creates a power dynamic in favor of employer. In having direct control over the status of their work permit, employees will always have an incentive to abide by the needs and wants of their employer. This dependency relationship makes it less likely and more difficult for employees to resist unsafe working conditions, report under-payment, and report unsafe housing conditions.

Additionally, Canada’s SWAP employers are provided with the opportunity to “name” employees.⁴⁹ This means that employers may select employees they wish to rehire in a subsequent season.⁵⁰ The provision allows named workers to receive priority in immigration processing, the naming power also gives the employer considerable power in the employment relationship. This is because the worker’s current employment and future employment is contingent on maintaining good relations with the employer.⁵¹ These added factors in maintaining power differentials between employer and employee place migrant workers in a position vulnerable to labour exploitation because even if, against all odds, employees are able to attain access to adequate legal recourse, they may not be willing to mobilize their concerns out of fear of losing their job and being removed from Canada.

Employers’ Responsibilities

In two of Canada’s temporary foreign workers programs (LCP and SAWP), the onus of arranging housing and accommodation remains with the employer.⁵² Live-in caregivers are required to live on-site while participants of SAWP must rely on employers to arrange for their accommodation.⁵³ This creates another opportunity for employers to exploit migrant workers’ labour. Live-in caregivers are often provided with very little time-off as employers know exactly when they are available to work extra hours.⁵⁴ Many of these caregivers are often restricted from leaving the house alone. They are also not always provided with their own room and must sometimes share a room with the children they take care of.⁵⁵ Additionally, employers will often choose the option that is most suitable for their wallet, further allowing employers to exploit migrant workers through compromising safe living conditions.⁵⁶ Common problems that have

been reported include: rat infestations, lack of rooms for employees, lack of beds, leaking roofs, and the inhabitation of dilapidated buildings.⁵⁷
Aside from these evident drawbacks, there is also an added factor to the power differential: not only are the employers of migrant workers responsible for the continuance of their livelihood, but they also become the provider of shelter. Therefore, when an employee decides to complain about employment standards and enforce their rights, not only are they at risk of losing their job, but also the loss of their home. With zero proactive overhead regulation of this relationship, this dependency can often result in a migrant worker trading one’s labour in exchange for their most basic necessities.

Human Rights Dimensions of Canada's Temporary Foreign Worker Program (TFWP)

The two major categories of human rights which are significantly impaired by the restrictive nature of Canada's TFWP are: 1) the right to freedom of movement, and 2) the right to life, liberty and security of the person. These rights are protected by a variety of Canadian and International human rights laws, norms and declarations. While Canada has not ratified many of the international conventions relating to the rights of migrant workers, it is strongly recommended that Canada does so. Until such time that these conventions are ratified, they can provide instructive policy guidelines on what the TFWP could look like if it implemented an appropriate rights-based framework.

The exercise of this right is directly affected by the restrictive and arbitrary qualities of the work permit afforded to migrant workers. Under Article 12(1) of the International Covenant on Civil and Political Rights, "everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."⁵⁸ Although migrant workers are lawfully within Canada, their right to freedom of movement is significantly

impaired because work permits are issued for a maximum period of twenty-four months.⁵⁹ Moreover, migrant workers have no control in choosing their residence because as mentioned previously, they are tied to one job, one location and one employer for the duration of their stay in Canada which has the effect of greatly compromising their labour mobility.⁶⁰ The adoption of a rights-based framework with regard to the TFWP should thus place emphasis on maximizing the choice available to migrant workers so that they are not subjected to unfair working conditions.

Life, Liberty and the Security of the Person

The right to life, liberty and security of the person is enshrined within article 3 of the United Nations Declaration of Human Rights, as well as s.7 of the Canadian Charter of Rights and Freedoms. Yet, most migrant workers live in chronic conditions of insecurity which can be attributed to unscrupulous employers and recruiters that take advantage of their vulnerability. In the sending country, migrant workers frequently fall prey to organized crime syndicates because they cannot afford the exorbitant fees charged by recruiters. Often they cannot pay the money which has the effect of indenturing the migrant worker and their family members back home to the crime syndicate.⁶¹ The consequence of this is that migrant workers are even more vulnerable upon arriving in Canada as they cannot resist harsh or abusive treatment at the hands of their employer since losing their job might endanger them or their families. Also, because employment contracts are not always honoured by employers, migrant workers have no choice but to slip into undocumented status and work illegally to pay off the debt.⁶² However, this is incredibly dangerous because if caught, "migrant workers are banned from ever re-entering Canada under any stream of the TFWP,"⁶³ and also upon being repatriated to their home country they can fall victim to the crime syndicate they owe money to. Thus, the gaps in the human rights protections within the TFWP create incentives for trafficking/trafficking-like situations whereby a migrant worker will risk working illegally in unsafe conditions just to remain in Canada.

General Recommendations:

1. 
   Canada must establish an advisory board to investigate the legitimacy of job advertisements posted by employers to monitor and ensure that workers responding to these advertisements are receiving what they were promised.
   
2. 
   Once within Canada, TFWs should have the ability to voice concerns surrounding work conditions, living conditions (if applicable), and the conditions of their rights. As such Canada should begin engaging in discussion regarding establishing legal protections for collective bargaining rights for migrant workers throughout the nation.
   
3. 
   Because the TFWP is split between three different government agencies, the ability to monitor and mediate situations and relationship between employer and employees is limited. Canada should implement a joint program between the federal and provincial governments to proactively monitor migrant worker-employer relationships. This would entail the following:
   

1. 
   The creation of a national registry that also focuses on providing migrant with a proper representation in resolving employer-employee conflicts;
   
2. 
   Provide class C and D workers and SAWP workers with a pathway to permanent residence and;
   
3. 
   Establish provincial organizations to aid migrant workers in arranging for their own accommodation
   

Economic Dimensions:

4. 
   Canada must efficiently reallocate its human resources, by embracing policies aimed at encouraging permanent residency.
   
5. 
   Programs must be designed to ensure that Canada is using its human resources to its fullest extent before allowing employers to make claims for TFWs. This will go beyond the minimal 14 day advertising period employers are meant to comply with at this point.
   
6. 
   A regulatory system, designed to eliminate exploitation and balance the excessive control the current system affords to employers must be established. This will ensure crimes such as payment retention are no longer committed.
   

Legal Dimensions:

7. 
   Legislation must be extended to migrant workers in order to ensure that their basic rights are upheld. This means that workers should be provided with protection for their security of status, security of housing, and security of employment.⁶⁴
   
8. 
   Legislation that protects TFWs from employers who engage in criminal recruitment must be implemented.
   
9. 
   Every province must establish an independent office that provides information and advice to migrant workers, including information about their rights, how to enforce them, and means of achieving legal support in making claims to enforce rights.
   
10. 
    Provincial and Federal governments should combine forces and jointly resource provincial inspectors to regularly monitor the housing, working, health and safety conditions of the workers in the TFWP, Canadian SAWP and LCP. These inspectors should be granted the ability to issue orders, fines and penalties.
    

Political Dimensions:

11. 
    All workers under the TFW program should be provided with a welcome orientation in their native language to better acquaint themselves with Canada’s employment standards, and health and safety legislation.⁶⁵
    
12. 
    Employers who are found to be in non-compliance with standards for adequate housing should be terminated from participating any of Canada’s TFW programs.
    

Human Rights Dimensions:

13. 
    Adopt the United Nations Convention on the Protection of Migrant Workers to better ensure that Canada's Temporary Foreign Worker Program meets appropriate human rights standards that provide protection throughout "preparation for migration, departure, transit and the entire period of stay and remunerated activity in the state of employment, as well as return to the country of origin."⁶⁶
    
14. 
    Canada should implement principles outlined by The International Labour Organization regarding worker labour rights, including conditions characterized "freedom, equity, security and human dignity"⁶⁷ into its TFWP and its sister programs that it complies with international human rights standards.
    

Bibliography
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule

B to the Canada Act 1982 (U.K.), 1982, c. 11.

Canadian Labour Congress. Canada’s Temporary Foreign Worker Program (TFWP): Model

Program or Mistake?. April 2011.

Citizenship and Immigration Canada. Changes to the Temporary Foreign Worker Program- Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D), October 02^nd 2009. .
Citizenship and Immigration Canada. How to Hire a Temporary Foreign Worker. June 18^th 2012. < http://www.cic.gc.ca/english/resources/publications/tfw-guide.asp>
Citizenship and Immigration Canada. Working Temporarily in Canada: How to Apply. May 28^th 2012. < http://www.cic.gc.ca/english/work/apply-how.asp>
Delphine Nakache and Paula J. Kinoshita. "The Canadian Temporary Foreign Worker Program: Do short-term economic needs prevail over human rights concerns". IRPP Study. 5 (2010).
Department of Man Power and Immigration Canada 1975, Vol 2, 186.
Fay Faraday. Made in Canada: How the Law Constructs Migrant Workers’ Insecurity. September 2012, 55.
Flecker, Karl. Personal Interview. October 2012.
Human Resources and Skills Development Canada. Live-In Caregiver Program. July 25^th 2012. <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/caregiver/description.shtml>
Human Resources and Skills Development Canada. Seasonal Agricultural Worker Program. June 10^th 2009.
Human Resources and Skills Development Canada. Temporary Foreign Worker Program. July 31^st 2012. < http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/index.shtml>

Human Resources and Skills Department Canada. Temporary Foreign Workers Program: Prevailing Wage Policies. August 24^th 2012, <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/communications/scenarios.shtml>.

Kenneth, Georgetti V. CLC Requests Urgent Meeting with Minister over Changes to EI and

Temporary Foreign Workers Program. May 7^th 2012.

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 3
Thompson, Mark. Migrant Workers in Canada: Emerging Policy Issues. March 2009, p. 11.
“Temporary Foreign Worker Laws in Canada.” Narrated by Anna Maria Tremonti. CBC. CBC Player, October 9, 2012. <http://www.cbc.ca/player/Radio/The+Current/ID/2288911757/>. 
United Nations. International Covenant on Civil and Political Rights. 16 December 1966, Article 12 (1).
UFCW. Report of the Status of Migrant Workers in Canada . 2011.

1^ Department of Man Power and Immigration Canada 1975, Vol 2, 186.

2^ Citizenship and Immigration Canada, Changes to the Temporary Foreign Worker Program- Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D), October 02^nd 2009. .

3^ Ibid.

4^ Human Resources and Skills Development Canada, Temporary Foreign Worker Program, July 31^st 2012. < http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/index.shtml>.

5^ Ibid.

6^ Ibid.

7^ Ibid.

8^ * Employers may now pay up to 15% below the average wage, as long as they can demonstrate that the same wages are being paid to Canadians.

9^ Supra, at note 4.

10^ Ibid.

11^ Citizenship and Immigration Canada, Working Temporarily in Canada: How to Apply, May 28^th 2012. < http://www.cic.gc.ca/english/work/apply-how.asp>

* Employers may now pay up to 15% below the average wage, as long as they can demonstrate that the same wages are being paid to Canadians.

12^ Ibid.

13^ Ibid. *The visas issued in TFWP tie each TFW to a single employer.

14^ Ibid.

15^ Ibid.

16^ Ibid.

17^ Ibid.

18^ Human Resources and Skills Development Canada, Seasonal Agricultural Worker Program, June 10^th 2009. <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/ei_tfw/sawp_tfw.shtml>.

19^ Ibid.

20^ Human Resources and Skills Development Canada, Live-In Caregiver Program, July 25^th 2012.

21^ Human Resources and Skills Department Canada, Temporary Foreign Workers Program: Prevailing Wage Policies, August 24^th 2012, .

22^ Canadian Labour Congress, Canada’s Temporary Foreign Worker Program (TFWP): Model Program or Mistake?, April 2011. < http://www.canadianlabour.ca/sites/default/files/pdfs/model-program-or-mistake-2011-en.pdf>.

23^ Ibid.

24^ Kenneth, Georgetti V, CLC Requests Urgent Meeting with Minister over Changes to EI and Temporary Foreign Workers Program, May 7^th 2012, .

25^ Karl Flecker, Personal Interview, October 2012.

26^ Fay Faraday, Made in Canada: How the Law Constructs Migrant Workers’ Insecurity, September 2012, 55.

27^ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

28^ Supra, at note 26 p. 47.

29^ Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 3

30^ Mark Thompson, Migrant Workers in Canada: Emerging Policy Issues, March 2009, p. 11.

31^ Supra, at note 26 p. 96.

32^ Ibid, at p.11.

33^ Ibid, at p.77.

34^ Ibid.

35^ Supra, at note 30 p.13.

36^ Supra, at note 26 p.102

37^ Ibid.

38^ Ibid.

39^ Ibid.

40^ Ibid.

41^ Supra, at note 26 p.16.

42^ Supra, at note 30 p.8.

43^ Ibid.

44^ Supra, at note 26 p.16.

45^ “Temporary Foreign Worker Laws in Canada,” Narrated by Anna Maria Tremonti, CBC, CBC Player, October 9, 2012, http://www.cbc.ca/player/Radio/The+Current/ID/2288911757/ at 9 minutes.

46^ Ibid.

47^ Ibid.

48^ Ibid.

49^ Ibid, at p.40.

50^ Ibid.

51^ Ibid.

52^ Canadian Council for Refugees, Migrant Workers in Canada Used and Abused, January 2012, p.4.

53^ Ibid.

54^ A. Bakan and D. Stasiulis, Not one of the family: Foregn domestic workers in Canada (Toronto: Universty of Tonorto Press, 1997) p. 53.

55^ Ibid.

56^ Report on Status of Migrant workers in Canada 2001, pg. 16

57^ Ibid.

58^ United Nations, International Covenant on Civil and Political Rights, 16 December 1966, Article 12 (1).

59^ UFCW, Report of the Status of Migrant Workers in Canada 2011, 11

60^ Delphine Nakache and Paula J. Kinoshita, "The Canadian Temporary Foreign Worker Program: Do short-term economic needs prevail over human rights concerns," IRPP Study 5 (2010): 1.

61^ Supra, at note 55.

62^ Ibid.

63^ Ibid.

64^ Ibid.

65^ Supra, at note 26 p.46.

66^ Ibid, p.12.

67^ Ibid, p.52.

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