The grass is not always greener
A recent United Nations (UN) report on Canada’s Temporary Foreign Worker (TFW) Program, has painted a picture which strongly suggests that the old adage of ‘the grass is always greener on the other side’ is actually not what it appears to represent. In the scathing report, UN Special Rapporteur Tomoya Obokata, described the programme as serving as a “breeding ground for contemporary slavery,” since it puts workers in an unfair power imbalance with their employers.
The introduction of the September 2016 Canadian Parliamentary Committee Report on the TFW states that, “The Temporary Foreign Worker (TFW) Program is complex and multifaceted, touching the lives of many Canadians, permanent residents, and foreign nationals. It is designed to facilitate economic growth by responding to labour market needs, while ensuring a balance is kept between the interests of businesses and those of the Canadian workforce.”
The TFW Program, created in 1973, does exactly what its name spells out; it allows employers in Canada to hire foreign nationals to fill temporary gaps in their work forces. The report noted that it has grown and been updated over the years to respond to changes in Canadian labour market conditions. However, both sides – employers and temporary foreign workers – have long expressed concerns over various aspects of it.
A background to the comprehensive 74-page report noted that there were reforms to the TFW Program in June 2014, which created work permit streams under which temporary foreign workers can enter Canada. Employers requesting temporary workers must first complete a Labour Market Impact Assessment before submitting an application in any of the four streams available: high wage, low wage, primary agriculture, and one dedicated to supporting permanent residency. Each stream has specific requirements to which employers must adhere.
Under the primary agriculture stream, employers can hire migrant workers from any country to work on farms for a maximum of 24 months. This also includes Canada’s Seasonal Agricultural Worker Program (SAWP), which involves bilateral international agreements for temporary foreign labour from Mexico and various Caribbean countries. However, under the SAWP temporary workers are only allowed to work in Canada for a maximum of eight months – from January to mid-December.
According to the UN ‘Report of the Special Rapporteur on Contemporary Forms of Slavery, Including its Causes and Consequences’, dated 22 nd July, (which was shared with the Canadian Federal Government before publication), in 2018, there were just over 84,000 work permit holders, and by 2022, the number had risen to 136,000, most of whom were in the agriculture and related labour sectors. Obokata, pulled no punches in the report which was compiled after visiting the Canadian cities of Ottawa, Moncton, Montreal, Toronto and Vancouver between 23 rd August and 6 th September, 2023.
“If a worker is fired, they may be deported. Some workers are deliberately not informed of their rights or too fearful to report exploitative working conditions,” Obotaka wrote. The Special Rapporteur further noted that they had received reports of underpayment and wage theft, physical, emotional and verbal abuse, excessive work hours, extracontractual work, lack of personal protective equipment in hazardous conditions, and sexual harassment, exploitation and abuse of women. The report stated that many of the temporary workers, who were also ensnared in debt bondage to thirdparty recruiters, including costs which should have been borne only by the employer, were at risk to these abuses since they lacked access to justice.
Obokata observed that these issues had been identified despite revelations of generally high rates of compliance of workplace inspections by Canadian employers. While the UN Report has recommended a series of measures for redressing the deficiencies identified, Canadian employers were reminded in the interim of the importance of respecting laws at both the Federal and Provincial levels aimed at protecting workers in the TFW program. Most notably, in those jurisdictions, where the employer is obligated to proactively inform workers of their rights under employment and labour standards legislation.
Mathis Denis, a spokesman for the Minister of Employment, Workforce Development and Official Languages stated the government had recently increased fines for companies which don’t offer appropriate working conditions to their foreign workers, noting that in the last fiscal year, 2,122 inspections had resulted in fines of Cdn$2.1 million, up from the Cdn$1.4 million levied in the previous year. While the Canadian Federal Government is busy instituting fines to delinquent employers it is the defendant in a half-a-billion dollars class action lawsuit from the Association for the Rights of Household and Farm Workers. The seasonal agricultural workers are claiming that they were denied benefits and exploited, because of racist policies from the 1960s, which are still in place today.
Louis Palmer, a lawyer for one of the plaintiffs, in an interview with CTV News, said that Employment Insurance (EI) premiums are deducted from the 50,000 temporary workers who come to Canada every year to work the fields, but they are denied EI payouts. The lawsuit alleges that over the past 15 years, the Canadian Federal Government has collected Cdn$472 million in EI premiums from the seasonal farm workers and hasn’t paid out. Palmer stated that the system was at the root of the discriminatory policies which were unconstitutional and needed to be changed
“The unjust enrichment was done on the backs of one of the most vulnerable segments of the Canadian workforce: migrant agricultural workers,” the lawsuit alleged. It added that the workers who came from islands in the Caribbean and Mexico were made more vulnerable because their work permits tied them to one employer – a policy from the 1960s, which did not generally affect white European workers, but still applies in the programme today. The Canadian Federal Government has not yet responded to the claim.
The UN report serves as a stark and sobering reminder that the prevention of modern slavery in the world labour supply chain is a complex endeavour, which cannot simply be equated to compliance with local labour laws and regulations, but requires a broader and holistic approach from businesses and government regulators. Here, most notably in the rapidly expanding hospitality industry, where it has been mooted that we might soon have to recruit overseas labour to fill the job market, one would hope that down the road we will not be subjected to a similar report, with regard to both the local and overseas workforce.