Due to the isolation of the workers and the temporary nature of many of these programs, there are documented cases of abuse and rights infringements, including inadequate housing, poor access to health care, inability to collectively bargain, family separation, illegal recruitment fees, and cases of violence and sexual abuse. To date, Canada has not signed and ratified the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the only international instrument specifically drafted to protect the rights of migrant workers.
Temporary Foreign Worker Programs in Canada
International, temporary labour migration is defined as the movement of people from one country to another for the purposes of employment for a brief period of time. There are two labour migration programs in Canada: the International Mobility Program (IMP) and the Temporary Foreign Worker Program (TFWP).
The TFWP was created by the federal government in 1973 to facilitate economic growth in Canada by responding to labour shortages (see Labour Force). It allows employers to hire foreign nationals on a temporary basis to fill gaps in their workforces. The TFWP differs from the IMP in that employers must file a Labour Market Impact Assessment (LMIA) to show that no Canadian or permanent resident worker is available to complete the job.
There are currently four streams under which employers can apply to Canada’s TFWP: the high-wage stream, the low-wage stream, the primary agriculture stream (including Seasonal Agricultural Workers Program or SAWP), and the stream dedicated to supporting permanent residency. As of 2014, the Live-in Caregiver Program (LCP) is no longer a stand-alone stream, and LMIA applications are assessed in both the high-wage and low-wage streams.
History of Canada’s Temporary Foreign Worker Programs
Canada’s temporary foreign worker programs can be thought of as unique bilateral agreements between nations, such as the SAWP, which was first introduced in 1966 in an agreement with Jamaica. Under the SAWP, migrant workers cannot seek employment outside their work contract and cannot apply for permanent resident status (see Citizenship).
The LCP program is dominated by caregivers from the Philippines and was introduced in 1992 to address the lack of live-in caregivers in Canada. LCPs work in individual homes and, due to this isolation, are often unable to exercise their rights under provincial minimum employment standards (see Employment Law). This regime has resulted in great difficulty with measuring overtime hours in a largely deregulated and invisible environment, and has given rise to a host of abuse allegations. However, unlike the SAWPs, LCPs can eventually apply for permanent resident status in Canada, after completing 24 months of paid employment within a period of four years.
A pilot program (originally known as Low-Skill Pilot) was introduced in 2002 in order to bring in more low-skilled workers to fill clerical, sales, service and transportation related jobs. These workers, like the SAWPs, generally cannot apply for permanent resident status in Canada and, while a spouse may accompany the worker, they cannot obtain their own work permit in Canada, in contrast to spouses who accompany high-skilled immigrants (see Immigration in Canada).
Legislative and Regulatory Frameworks
Migration in Canada is governed federally by the Immigration and Refugee Protection Act, implemented in 2002 (see Refugees). The Act recognizes five types of migrant workers under its economic migration class: (1) workers selected for immigration and granted permanent residence; (2) visitors authorized to work temporarily without a work permit; (3) foreign workers authorized to work temporarily in Canada upon obtaining a work permit from Immigration, Refugees and Citizenship Canada (IRCC); (4) foreign workers authorized to work temporarily in Canada upon obtaining both an authorization from Employment and Social Development Canada and a work permit from IRCC; and, (5) undocumented migrant workers. The Act provides these categories, as well as limited guidance on certain procedural issues. It also explicitly vests the Minister of Immigration, Refugees and Citizenship with the authority to issue special instructions to officers at his or her discretion. IRCC regularly provides updated administrative guidelines, that set out specific regulations to be followed by IRCC officers.
The day-to-day administration of temporary foreign worker programs falls to the provinces, where workers are protected under provincial legislation for issues of health and safety, occupational and employment standards, and wage distribution. There is variation between the provinces in terms of enforcement, quotas, and protections for workers.
There are also international legal instruments that govern the rights protection for temporary foreign workers. The United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) is the only UN treaty that grants specific rights to migrant workers. Many of the rights in the CMW are derived from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which Canada has ratified. Some of the rights stipulated in the CMW are entirely new rights pertaining specially to migrant workers and their families. While rights stipulated in core human rights treaties are meant to apply to all peoples regardless of their nationality, their application to migrant workers is not often specified. As such, the CMW has been characterized as a more precise interpretation of human rights in the case of migrant workers. However, the CMW is the least ratified treaty among all the major human rights treaties. As of December 2017, only 51 countries had ratified the CMW, just over one quarter of the ratifications of the UN Convention on the Rights of the Child, and less than one third of the ratifications of the UN Convention on the Rights of Persons with Disabilities.
Human Rights Abuses in Canada’s TFW Programs
Migrant workers in Canada are protected under federal instruments such as the Charter of Rights and Freedoms, and under various provincial laws that ensure workplace and occupational health and safety, employment standards and human rights. However, there are gaps in the enforcement of these protections, and human rights abuses have been documented in all TFW programs: racism, discrimination, and dubious contracts that prevent workers from forming outside relationships and that police their behaviour (such as mandating the use of deodorant). Migrant workers can also experience abuse at the hands of third-party recruiters, who charge thousands of dollars for various applications or assistance throughout the process, a practice that is illegal in Manitoba, Saskatchewan and Nova Scotia. Protracted family separation also negatively affects the well-being of many workers in Canada, some of whom have worked in Canada for decades without the ability to attain permanent resident status.
A 2017 investigation by the Toronto Star revealed that there continue to be documented cases of inadequate housing, lack of access to heath care, lack of overtime and cases of violence and sexual abuse.
Migrant workers have also been pushing for the right to unionize, with temporary farm workers leading the charge (see Labour Law). However, in Frazer v. Ontario (Attorney General), which became known as the “Mushroom Workers case,” the Supreme Court of Canada ruled that section 2(d) of the Charter of Rights and Freedoms does not require labour statutes to incorporate a particular model of collective bargaining for temporary farm workers, effectively denying migrant workers statutory labour rights protection.
Repatriation of workers back to their countries when they have been hurt on the job has also been documented. Migrant workers experiencing illness or injuries preventing them from working are often fired and repatriated to their home country, without any ability to appeal the repatriation. Between 2001 and 2011, 787 medical repatriations occurred among the 170,315 migrant farm workers in Ontario. Of the 787 medical repatriations, 41.3 per cent were due to medical or surgical reasons and 25.5 per cent were due to external injuries. Other types of temporary foreign workers, such as LCPs, also face the risk of repatriation.
While migrant workers must pay federal and provincial taxes, their access to social programs is severely restricted. Similarly to the barriers to their access to health services, migrant workers have difficulties accessing social services because of their long work hours, lack of transportation, social isolation, lack of services in rural areas, language and cultural differences, awareness of available support and services and other conditions of their employment. In some cases, employers keep workers from leaving the premises after work. Migrant workers also make contributions to the Canada Pension Plan (CPP), which on paper will give them a pension upon retirement at age 65. However, most migrant workers will not claim their pension due to a lack of understanding of the CPP and how to claim their pension. If they do manage to claim their pension, the amount they can claim is extremely low as it is difficult to accrue sufficient hours.
Canada Has Not Ratified the UN Convention on the Rights of Migrant Workers
Canada has not signed and ratified the CMW. While the federal government has not stated why it is reluctant to ratify the Convention, a 2006 UNESCO-sponsored study investigated some of the reasons behind Canada’s resistance to ratify the CMW. For example, the parliamentarians and federal government employees profiled in the study thought of the additional rights as superfluous, given those already guaranteed by the 1951 Refugee Convention, the Convention on the Elimination of All Forms of Discrimination Against Women, or the Convention Against Torture. Also, the CMW was largely thought to arise out of the need to regulate guest workers who were brought in to deal with labour shortages in Europe in the 1970s and 1980s. The immigration philosophy behind Canada’s TFWP was considered different from this model. Instead of following overarching international laws, Canada implemented contractual bilateral agreements between specific states.
The CMW was also seen as largely redundant, since basic rights are already guaranteed to everyone under the ICESCR and ICCPR. Migrant workers were not seen as an especially vulnerable group needing specific protections, as they can rely on the ISESCR, ICCPR, as well as the Charter of Rights and Freedoms and provincial workplace safety legislation. Also, ratifying the CMW would call for a drastic restructuring of Canada’s low-skill temporary foreign worker programs. In contrast to the direct opposition to the CMW by federal government employees, the CMW was largely unknown among parliamentarians profiled in the study.
However, human rights abuses of migrant workers have received significant media attention. As a result, on 21 March 2016, the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities adopted a motion to study the TFWP with a focus on the current program and how to improve it.
The New Democratic Party (NDP) criticized the committee for not providing a recommendation to ensure that all migrant workers have a pathway to permanent residency. The NDP also called on the government to provide additional resources for migrant worker organizations to assist migrant workers in protecting their rights, allow for unionization among migrant workers, to ensure adequate health and safety rules are in place, to require that health care be provided in Canada when workplace injuries occur, and to allow access to employment insurance benefits.
In December 2016, the government responded briefly to the committee, stating that they were working to introduce stronger recruitment requirements for low-wage employers so that Canadian workers who were traditionally under-represented in the labour market could have better access to available job opportunities. As well, the government planned to eliminate the four-year cumulative duration rule, to extend the exemption on the cap for seasonal industries for 2017, and to commit to developing pathways to permanent residence for migrant workers. On 13 December 2016, the four-year cumulative duration rule (“four-in, four-out” rule), which banned migrant workers from working in Canada for four years after they had spent four years working here, was rendered no longer effective by the federal government.
Canada relies heavily on its temporary foreign worker programs and employs thousands of migrant workers every year. While rights protection mechanisms exist both on the provincial as well as federal level, and Canada has committed to improving its temporary foreign worker programs, abuses of migrant workers continue to be documented. Many temporary foreign workers live a precarious existence, with no pathway towards permanent residence.