Temporary foreign workers need more rights, not better enforcement of flawed policy

September 1, 2014

On June 20, Minister of Employment and Social Development Jason Kenney announced a raft of changes to the federal Temporary Foreign Worker Program (TFWP), including a moratorium (now lifted) on the hiring of temporary foreign workers (TFWs) in the food services sector. The TFWP program has attracted controversy since at least 2006, but it picked up recently with CBC reports that a MacDonald’s restaurant in Victoria was favoring temporary foreign workers over Canadians when hiring or allocating hours to staff.

In the two months since Kenney’s announcement, the federal government has clarified and begun to implement the changes against a backdrop of ongoing debate about their impact. Yet this debate has tended to focus on the implications of the re-vamped TFWP for Canadian workers and Canadian business operations. Relatively little attention has been paid to the migrant workers themselves, or the voices of community groups and NGOs advocating for their rights.

A short history of the TFWP

Toronto Star columnist Haroon Siddiqui commented in July that, “even the name, temporary foreign worker program, is un-Canadian. ‘Temporary’ and ‘foreign’ are the antithesis of long-standing Canadian immigration policy, the bedrock principle of which is that immigrants are selected to be permanent residents and future fellow-citizens.”

In fact, the first iteration of the TFWP came into being in 1973. But the shift in policy toward the admission of increasing numbers of migrants with what academics Luin Goldring and Patricia Landolt call “precarious non-citizenship,” the condition of workers who enter Canada with no pathway to secure legal status through permanent settlement, occurred from about the 1980s onward.

The 2006 census recorded a 118% increase since 1996 in the number of adult non-permanent residents working in Canada. Research by Statistics Canada has shown that “the number of non-permanent residents who entered Canada in 2008 (399,523) exceeded the number of permanent immigrants of all types landed that year (247,243).” In other words, Canada admitted more people on temporary visas that year than people with the right to remain permanently in the country. The TFWP has been the fastest growing component of non-permanent admissions to Canada.

Until the TFWP reforms were announced in June these admissions fell into four streams, which included agricultural workers, live-in caregivers, higher-skilled occupations and low-skilled occupations. The Seasonal Agricultural Worker Program (SAWP) and Live-In Caregiver Program (LCP) are among the longest standing and most stable (in terms of numbers) of the programs under the TFWP umbrella, although the SAWP in particular has expanded steadily. But it is the Low Skill Pilot Program that has attracted recent attention. The same government stats show there were 1,304 work permit holders under this scheme in Canada in 2002, increasing to 39,813 by 2013.

Employers who wanted to hire TFWs had to obtain a positive labour market opinion (LMO) from Employment and Social Development Canada (ESDC). (An LMO is a test to see if an employer really needs to employ migrant labour.) The TFWP was officially described as a program of ‘last resort’ for employers unable to recruit Canadian workers. But the recent controversies in part relate to the recognition that increasing numbers of businesses have been relying on TFWs to fill large numbers and in some cases the majority of job vacancies.

The number of TFW positions on positive labour market opinions doubled between 2005 and 2012 in sectors like manufacturing, mining, oil and gas. It increased more than seven-fold in construction. But the lower-skilled occupation stream in general, and the Low Skilled Pilot Program in particular, has seen the biggest growth. Most striking has been the increase in accommodation and food services positions, from 4,360 to 44,740 migrant worker positionsduring the same period.

Reporting by the CBC on positive LMOs in communities with high unemployment and high numbers of Employment Insurance (EI) claimants, and very public complaints by Canadian fast food workers that they were being passed over for jobs due to an employer’s preference for TFWs, has fueled the perception that the biggest problems lie with companies like Tim Hortons and McDonald’s. The ‘low-skilled’ route is therefore the part of the TFWP targeted by federal reforms.

Yet not all parts of the TFWP are being revamped. Particularly striking is the lack of reform of the seasonal agricultural worker and live-in caregiver programs despite longstanding and ongoing evidence of abuse and exploitation of workers in both. Moreover, none of the reforms address the question of why workers who are needed in Canada are not being offered a route to settlement.

Reforms to the TFWP

The changes announced to the TFWP are underpinned by its reorganization into two distinct programs. The TFWP now only refers to those streams of employer-led migration for which new Labour Market Impact Assessments (LMIAs) are required. These LMIAs replace the earlier Labour Market Opinion process. Streams that are ostensibly not based on employer demand, characterized as mostly high-skill/high-wage, and which do not require LMIAs, are now part of what is called International Mobility Programs (IMP).

The key changes to the TFWP are broadly designed to reduce the scope for employers to use TFWs in low-skill/low-wage sectors, especially in areas with above-average unemployment. They thus include a cap on the proportion of low-wage TFWs that a business with more than 10 workers can employ, a reformed labour market assessment process (i.e. the shift from LMOs to the supposedly more rigorous LMIAs), and a refusal to process applications for low-wage positions in accommodation, food services and retail in regions with more than 6% unemployment. A significant change is that from now on decisions will be based on median hourly wages rather than National Occupation Classification categories: positions paid below the provincial median wage will be considered low wage for the purposes of Labour Market Impact Assessments.

Other changes include an increased LMIA fee (from $275 to $1,000). The duration of work permits for low-wage jobs has been reduced from two to one year for new applicants, and employers of TFWs must re-apply every year. There has been a promised intensification of inspections and better enforcement of existing rules governing the TFWP. The government has promised that one in four employers using TFWs will be inspected each year, although no concrete numbers on the size of the ESDC inspection team have been provided. After refusing in the past to make data on positive LMOs available to the provinces, the federal government is now asking for them to provide provincial information on employers, to enforce employment and labour standards, and to put structures in place to deal with the regulation of recruitment and employment agencies.

Assessing the changes

The increase in temporary migrant workers has met with contradictory responses, even within regions seen to benefit the most from the program. The argument that provincial labour markets (e.g. Alberta) suffer shortages in key areas has been countered with claims that all regions of Canada still suffer from unemployment, and that TFWs take jobs from Canadian workers. Sectors and occupations that claim difficulties in attracting workers, like seafood processing in the Atlantic provinces, have so far received short shrift from the federal government in their demands for exceptions while the winter sports industry has been promised a review.

The argument and justification for reforms is that the TFWP has distorted local labour markets by keeping wages down and creating a vulnerable workforce with little to no labour market mobility. The latter is important because employers are no longer legally permitted to pay TFWs less than the wages received by Canadian or landed workers in comparable roles. This is different from saying TFWs receive the wages they are promised; underpayment of wages and wage theft are well documented, as are excessive recruitment and administration fees from agencies and consultants operating outside and within Canada.

What businesses also gain from the program is enhanced labour control. Their precarious migration status makes these workers more dependent on their employer than other workers, as losing their job may mean losing their work permit and right to stay in Canada. Workers also often depend on employers for a place to live as well as a job.

It has been argued that labour control is a key factor that makes TFWs preferable to Canadian workers and new immigrants, who lose out in sectors such as food services. The argument has resonance. Outside the business community, few deny the need for reform of the TFWP because of the threat to Canadian workers. Conservative voices have begun calling for further EI reform (e.g. conditionality and retrenchment) alongside tighter TFWP conditions, for example.

But these arguments focus on the perceived threat to Canadian workers. What about the conditions faced by migrant workers themselves? Despite sustained campaigning by myriad NGOs, activists and community groups across the country, the impacts of the changes on TFWs themselves have received relatively little attention.

How migrant workers are affected

As the government’s own data has shown, migrant workers are more likely than Canadian workers and recent immigrants to be underemployed—in 2006, 85% of non-permanent resident housekeepers and 55% of cleaners had completed post-secondary training—and to have lower weekly earnings. Groups like Migrante Canada, PINAY in Quebec, the Philippines Women Centre, Justicia for Migrant Workers, and the Migrant Workers Alliance for Change have consistently highlighted the conditions faced by live-in caregivers and agricultural workers who face abuse, excessive hours, wage theft and unfair deductions among other breaches of employment standards in their everyday working conditions.

But calls from mainstream politicians and the media to reform the TFWP to address the exploitation of temporary workers, their precarious non-citizenship, and the unfreedom that comes with being tied to an employer, have been more muted. Few are asking why, if someone’s skills are needed in Canada, he or she cannot immigrate with full rights and a path to permanent settlement just because they are designated as a low-wage worker. Why are we reducing the length of time that a TFW in the low-wage stream can spend in Canada when this change will surely increase the vulnerability of those workers?

In addition, the Live-in Caregiver Program and Seasonal Agricultural Worker Program remain largely untouched because, unlike hospitality and food services work, ‘low-skilled’ agricultural and care jobs are seen as jobs Canadian citizens and those with permanent residence will not do. While the LCP does offer a path to settlement, it requires that workers live with their employer as a condition of their visa, leading to well-documented problems with excessive working hours, non-payment of over-time, and a lack of privacy and personal space. Most caregivers cannot, in practice, bring their dependents to Canada, enforcing long periods of separation within families. The documented backlog of applications for open work permits for caregivers who have fulfilled the requirements of the LCP program makes this worse. Caregivers “mortgage themselves,” as the Philippine Women’s Centre puts it, for any hope of remaining in Canada.

Workers in the SAWP also live in employer-provided accommodation, often on site, and have no path to settlement, even though many are hired year after year to work on Canadian farms. Both the LCP and the SAWP make it very difficult for exploited workers to change employers. In all of these ways the programs also produce labour market distortions by creating a pool of precarious workers who must accept the requirements of the TFWP

Yet there is little talk of allowing market demand to raise wages and improve conditions in these sectors. In the cases of the LCP and SAWP, labour market ‘distortions’ are justified by the need for low-paid workers to provide our most basic and important needs: food and care. In the case of the LCP, the program relieves the provincial and federal governments from having to address the ‘care deficit’ that results from a lack of public investment in care for young children, the elderly and those with disabilities.

The only potential benefit of the proposed changes for workers in the LCP and SAWP is enhanced enforcement of program rules and labour standards, which, as the Migrant Workers Alliance points out, is unlikely to protect TFWs in a system where a worker’s status depends on his or her employment, making it difficult to complain. This is especially true for TFWs in the other streams. Shorter duration work permits and less mobility mean more dependence on employers.

The new two-program migration regime makes workers more disposable and is clearly premised on a racist logic that deems workers from developing countries in low-wage jobs unsuitable for Canadian citizenship despite our need for their labour. Note how the table here, taken from the government’s document on the changes to the TFWP, characterizes workers in that program, re-inscribing and reinforcing the links between developing economies, racialized labour, ‘low-skilled’ work and ‘last and limited resort.’

Minister Kenney’s new programs will make things worse for many TFWs and will do less to help Canadian workers than we might think. Creating a level playing field, in which genuine labour shortages are filled by workers with full and equal labour rights and a path to citizenship, would do more to reduce labour market distortions than a tweaked guest worker program, which is not what Canada needs. What we need is an immigration policy that is fair to all, including the essential workers who produce our food and care for our children.

Kendra Strauss is an assistant professor of labour studies at Simon Fraser University. This article is an elaboration on her July 10 blog entry on the CCPA–BC’s Policy Note website (www.policynote.ca).