RECASTING THE TEMPORARY FOREIGN WORKER PROGRAM TO PUT CANADIANS FIRST

The Temporary Foreign Worker Program has come under fire from the Canadian public over the past few years for allowing employers to hire migrant workers when Canadian workers are available and facilitating the exploitation of migrant workers by Canadian employers.  Addressing the injustice to both Canadians and migrant workers that arise when employers abuse the TFWP is necessary to uphold core Canadian values of equality and respect for diversity, history of multiculturalism, and commitment to social justice.

Yet, the changes to the TFWP primarily address the need to protect Canadians. Specifically, the Government of Canada has sent a clear message to employers: put Canadians first. The Government needs to broaden this message to ensure that Canadian employers who use the TFWP respect the human rights and dignity of migrant workers.

Why did the Canadian Government change the TFWP?

The Government of Canada recently announced a series of reforms to the Temporary Foreign Worker Program (TFWP). This follows widespread complaints that the program has caused distortions in the labour market, frozen wages at unrealistic levels, undermined efforts to improve employment rates among Canadian citizens, and enabled employers to abuse migrants.

The central purpose of the TFWP is to fill gaps in the Canadian labour market by allowing employers to hire foreign nationals as a ‘last and limited resort’ when no Canadians are available for a position. However, in an era of high unemployment among Canadians, the increased use of temporary foreign workers by Canadian employers over time has fuelled concerns that employers are abusing the program or using it in a way that was not intended by policy makers. A major concern for the Government is a “growing practice of employers building their business model on access to the TFWP”[1] – that is, employers abusing the TFWP to maximize their profits and becoming increasingly dependent on migrant workers, rather than providing employment opportunities and training to Canadian citizens.

While employers who use the TFWP have certainly hired an increasing number of migrant workers over time, the extent to which Canadian employers have hired migrant workers instead of available unemployed or underemployed Canadian citizens is unclear. A handful of Canadians have made allegations that their employer have laid off Canadian workers to hire foreign employees who are willing to work for lower wages or under conditions that fail to meet a minimum standard of acceptance among the Canadian workforce.

Stories of Canadians negatively affected by the TFWP have garnered weeks of media attention and public outrage. For instance, consider the story of a 58-year-old Saskatchewan waitress who lost her job at a Brothers Classic Grill and Pizza to a foreign worker after 28 years of loyalty to the company.[2] Another story that was discussed at length in the media concerned three McDonald’s franchises, with a pattern of giving temporary foreign workers more shifts and Canadians fewer shifts.[3]

In addition to public attention directed to the injustices felt by Canadians, stories that highlight the equally unfair treatment of migrant workers who come to Canada through the TFWP have sparked public debate. A notable example is the discrimination, harassment, and bullying temporary foreign workers suffered at the hands of a Tim Hortons franchise in British Columbia.[4]

However, last week, Jason Kenny, Minister of Employment and the Minister of Multiculturalism, was interrupted by protesters seconds into a speech on the changes to TFWP at a skills summit. The protesters expressed their disapproval of the TFWP and their opinion that the recent changes to the program are unacceptable, claiming that the Minister has: “entrenched a revolving door immigration system where migrants in low-skilled occupations come to the country, are exploited and then kicked out and replaced.”[5]

What are the key Changes to the TFWP?

Nearly all of the changes to the TFWP that are effective immediately make it harder for employers to hire temporary foreign workers, particularly for low-wage positions. For example, it is now basically impossible for an employer to hire a temporary foreign worker as a cashier at a fast food restaurant.

Employers seeking to hire a temporary foreign worker must now complete a Labour Market Impact Assessment (LMIA) that replaces the Labour Market Opinion (LMO), required under the previous regime.  This assessment is more comprehensive and rigorous than the LMO and requires the employer to provide specific data to show that a Canadian citizen is not available for the position, such as the number of Canadians who applied for the position, the number of Canadians interviewed for the position and an explanation of why the employer did not hire available Canadians.

Employment and Social Development Canada (ESDC), the government department responsible for processing LMIAs, will now refuse to process a LMIA for low-wage positions that require little education or training of applicants (such as food counter attendants, kitchen helpers, and grocery clerks) in economic regions where the unemployment rate is at or above 6 percent.

The fee of $1,000 CA that is charged by the government to process a new LMIA (per position) is prohibitive and likely to make employers think twice about hiring temporary foreign workers. Under the previous regime, the fee for a LMO was $275. The impact of this significant fee increase is further heightened for employers seeking to hire temporary foreign workers for low-wage positions. Under the new regime, the duration of low-wage work permits is a one year term. Under the old regime, all LMOs were valid for a period of two years.

Interestingly, farming or agricultural positions, such as those that fall within the Seasonal Agricultural Worker Program, are exempt from a LMIA fee. A possible explanation for this exemption is that few Canadians are willing to take positions in the farming and agricultural sector as a result of the harsh working conditions and low-wages.

Even if the more rigorous LMIA requirements and the higher fee do not dissuade employers from seeking to hire temporary foreign workers, a new cap will limit the number of low-wage temporary foreign workers an employer can hire. For employers with 10 or more employees, no more than 10 percent of their low-wage workforce can be temporary foreign workers. This cap does not apply to live-in caregivers who are typically employed by individuals or families to attend to the caregiving needs of elderly family members or young children. The likelihood that these employers will have more than 10 employees is small. Farming or agricultural positions are also exempt from this cap, a consideration that is likely due to the dearth of Canadians willing to perform this type of work.

Generally, employers seeking to hire temporary foreign workers for high-wage positions will face fewer barriers than those seeking to hire temporary foreign workers for low-wage positions. For the highest-paid positions, ESDC will actually make it easier for employers by introducing a 10-day service standard for processing LMIAs. While the LMIA fee is the same for low-wage and high-wage positions, the duration of the LMIA is two years for high-wage positions rather than the reduced duration of one year for low-wage positions. Unlike for low-wage positions, there is also no cap on the number of high-wage foreign workers an employer can hire.

However, employers seeking to hire high-wage temporary foreign workers face the additional requirement to submit a transition plan with their LMIA that explains the steps taken to reduce their reliance on access to the TFWP. This requirement aims to ensure Canadian employers engage in broad recruitment activities within Canada that involve reaching out to groups traditionally marginalized by society and under-represented in the workforce such as new immigrants, Aboriginal youth, and Canadians with disabilities.

With a view to reducing the risk that employers will abuse the TFWP, the Government expanded its inspection regime with enhanced enforcement mechanisms. Notably, the number of inspections of TFWP employers will increase such that one in four will be inspected per year. The Government will perform inspections randomly as well as in response to tips of employers abusing the TFWP. To increase the detection of abuse in the TFWP setting, the Government launched a confidential tip line as well as a Complaints Web page.

Moreover, the Government announced a commitment to increasing criminal investigations with a view in the TFWP setting. Criminal offenses set out in the IRPA include: employing a foreign national that is not authorized to work in Canada; counseling misrepresentation on immigration applications, and misrepresentation on immigration applications. Employers found in breach of these criminal offenses will face hefty fines up to $50,000 CA and imprisonment for up to two years. Employers found guilty of human trafficking may face fines up to $1 million CA and life imprisonment. Canada Boarder Services Agency (CBSA) will receive greater financial resources to investigate reports of suspected criminal activity.

What about the protection of migrant workers?

With the exception of measures that aim to crack down on human trafficking in the TFWP context, few changes to the TFWP address the need to ensure meaningful protection for the rights and dignity of migrant workers. While a confidential tip line exists for reporting abuse of the TFWP, this tip line is unlikely to adequately protect against the mistreatment of temporary foreign workers by employers. In many situations, migrant workers whose economic well-being depends on working in Canada, through the TFWP, will be unlikely to report abuse or mistreatment by their employer unless the Government of Canada offers such employees another avenue to continue working in Canada. Many important questions remain unanswered, such as: what measures will ensure the protection of migrant employees if their employer is the subject of a confidential tip or criminal investigation?

Conclusion

A stronger commitment to ensuring the rights and dignity of migrant workers who come to Canada through the TFWP is necessary. While “putting Canadians first” may appease the primary concerns of the Canadian public, ensuring fairness and appropriate standards for migrants working in Canada is equally important.

[1] Government of Canada, Overhauling the Temporary Foreign Worker Program: Putting Canadians First (June 25, 2014) at page 9, available online: http://publications.gc.ca/collections/collection_2015/edsc-esdc/Em4-1-2015-eng.pdf

[2] CBC News, Waitresses in Saskatchewan lose jobs to foreign workers (April 22, 2014), available online:http://www.cbc.ca/news/canada/saskatchewan/waitresses-in-saskatchewan-lose-jobs-to-foreign-workers-1.2615157

[3] CBC News, McDonald’s accused of favouring foreign workers (April 14, 2014), available online:http://www.cbc.ca/news/canada/british-columbia/mcdonald-s-accused-of-favouring-foreign-workers-1.2598684

[4] Vancouver Sun, Tim Hortons, McDonald’s face criticism over foreign worker program (April 24, 2014) available online:http://www.vancouversun.com/life/Hortons+McDonald+face+criticism+over+foreign+worker+program/9768838/story.html; Huffington Post, Who’s Looking Out For Time Hortons’ Temporary Foreign Workers? (December 13, 2012), available online:  http://www.huffingtonpost.ca/2012/12/12/whos-looking-out-for-tim_n_2283042.html

[5] CBC News, Shortage of skilled workers could jeopardize the economy (June 26, 2014), available online at http://www.cbc.ca/news/politics/shortage-of-skilled-workers-could-jeopardize-the-economy-1.2687365