No Fairness For Temporary Workers

Employers still allowed to mistreat, underpay foreign “help”
June 1, 2012

The Harper government’s April 26 announcement of yet another change to the deeply flawed Temporary Foreign Worker Program will not benefit any workers or communities.

Ministers Diane Finley and Jason Kenney revealed that employer applications for temporary migrant workers will be fast-tracked from three months to 10 days. The new program has been given the acronym ALMO – Accelerated Labour Market Opinion.

What Kenney and Finley did not reveal was that an earlier pilot program called the E.L.M.O (Expedited Labour Market Opinion) allowed employers to fast-track their applications in B.C. and Alberta in 2009/10. Back then, 85% of employers were getting a positive response in just three to five days.

In March 2010, the Alberta Ministry of Employment and Immigration released its own inspection statistic of over 400 workplaces employing migrant workers, revealing that 74% of those employers had violated the Employment Standards Act regarding pay rates and record-keeping.

Minister Kenney is on record (October 2009) as stating that it’s his governments “duty to migrant workers, employers, and all Canadians, to ensure that the program is fair and equitable.” To that end, he said he would establish a list of “disingenuous employers” – those who violate labour standards.

Today, the advanced search function on the government’s revised and updated TFW web pages shows absolutely nothing for the term “disingenuous employers.”

Despite an avalanche of evidence and complaints indicating that migrant workers continue to endure workplace exploitation, the Harper government has still not implemented any substantial compliance, monitoring, or enforcement mechanisms on employers profiting from this program.

The announced changes of an accelerated process include providing employers access to an online application form. Sadly, the form simply allows employer to choose “Yes” or “No” to participating in a Monitoring Initiative… Saying “no” does not slow down their application, and in any case participation is voluntary.

If the government conducts a review of an employer’s application – and there is little evidence amidst the massive cuts to jobs in the public sector that any such review would even happen -- and even if employment violations were to be found, (after the 10-day review period), the Harper government simply says it will work with the employer to take “appropriate corrective measures.”

Clearly the scales are further tipped in the employers’ favour under these changes. Claims that a new “monitoring initiative” is under way reveals that disingenuous employers have little to worry about if they cheat migrant workers. The new initiative fact-sheet actually says that, beyond taking appropriate corrective measures, “No further action will be taken.”

The Canadian Labour Congress has long been advocating for comprehensive measures to be taken to better protect migrant workers’ rights. We have been calling for the establishment of a Migrant Workers’ Commission as an independent regulatory body with enforcement powers. This much-needed Commission should be empowered to ensure that comprehensive compliance, monitoring, and enforcement measures that protect migrant workers are in place across the country before employers can access the TFWP.

At least two parliamentary standing committees have studied the many flaws inherent in the TFWP since the Harper-led Conservatives came to power in 2006 – and, not coincidentally, they have ramped up the program to serve employers’ interests. Committee recommendations to address program shortcomings, however, have been consistently ignored.

Rather than respond to long-standing violations of migrant worker rights, Ministers Kenney and Finley recently announced that employers seeking highly skilled workers can now get their applications processed swiftly, and they can also pay these workers up to 15% less than the average rate of pay for those occupations.

The comparative wage data the government is relying on to justify the “pay less wage model” is to be provided by Statistics Canada. That agency will also be yrying to cope with at least an 8% budget cut ($33.9 million). It will be slicing surveys and cutting staff in what the Chief Statistician calls a “year of sacrifice.” Gary Corbett, president of the Professional Institute of the Public Service, put it this way: “The funding cuts will impact how and what Statistics Canada can deliver to departments, agencies, and the people of Canada.”

The budget cuts also mean that a long-awaited Workplace Survey that would provide a much needed and more accurate picture of actual job vacancies just won’t happen.

These changes confirm that the Temporary Foreign Worker Program is really designed to serve employers’ interests. For example, no serious efforts are being made to verify if employers’ claims of labour shortages are valid.

In some cases, shortages of workers are related to poor working conditions and/or inadequate wage levels. But when employers can acquire migrant labourers who are economically desperate, vulnerable, and dependent on any income, there is little incentive for such employers to restructure their operations.

A restricted labour supply results from persistent failures to provide adequate apprenticeship and training opportunities as part of national labour force development strategy.

The CLC has pointed out that there are proven methods to verify the existence of labour shortages. For example, the U.S. Bureau of Labor Statistics uses a methodology that looks at three factors within occupations: 1) employment growth; 2) the unemployment rate; and 3) wage growth.

To be considered an occupation that is experiencing a tight labour supply, 1) employment growth must be at least 50% higher than average; 2) the unemployment rate must be at or near historic low levels; and 3) wage growth must be at least 30% greater than average.

In 2005, the Canadian government’s HRSDC Strategic Planning Unit applied this methodology to the Canadian labour market to assess the validity of labour shortages at that time. They found that only 32 occupations, representing 11.4% of overall employment, were showing signs of excess demand. Almost all of these occupations required post-secondary or apprenticeship training, and most were in professional, health, and management occupations.

It is noteworthy that nine occupations, all low-skilled, were found to be in a situation of excess supply, with rising relative unemployment rates, job losses, and falling wages.

It is clear that a more rigorous methodology is required to determine if a valid labour/skills shortage does in fact exist.

This government, however, is clearly committed to designing policy without supportive evidence. (Just ask those who valued the long-form census.)

In 2008/09, the CLC discovered that this government’s “primary source of information used in determining prevailing wage rates was the administrative data from EI claimants.” Essentially, the government has been using EI data from unemployed workers in specific regions for specific jobs to determine the wage rate for the migrant workers employers claimed they needed – because of so-called “labour shortages.”

Faced with this embarrassing revelation, the TFW Program created a Labour Advisory Group (LAG) in 2009 to help develop a new methodology to determine prevailing wage rates. Labour representatives participated in good faith on the LAG and offered workable ways of calculating fair wages and benefits for migrant workers

The government’s response was to advance options that favoured the market and employers. When participating unions opposed proposals that gave unfair power to employers to set lower wage and benefit rates, the government responded by unilaterally changing the mandate of the Labour Advisory Group. No longer were unions considered equal stakeholders in the process.

Efforts to meet with Minister Finley in 2009 to discuss the shortcomings of the process were ignored.

Now Ministers Finley and Kenney have allowed a flawed and biased wage structure system to be adopted. It will undoubtedly be applied across the board to all streams of the TFWP. As a result, average wage rates will drop, and all affected workers and communities will pay a steep price.

The CLC has been calling for comprehensive reforms to the flawed Temporary Foreign Worker Program for years. Detailed policy solutions that protect migrant worker rights, as noted earlier, have been laid out in a publication called Model Program or Mistake. Additionally, the CLC has called for greater investments to be made in training and encouraging permanent immigration policies – not implementing temporary migration policies that are designed to perpetuate unfairness.

(Karl Flecker is National Director of the CLC’s Anti-Racism and Human Rights Department.)