TEMPORARY FOREIGN WORKERS, PERMANENT RIGHTS? REDTAC

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TEMPORARY FOREIGN WORKERS, PERMANENT
RIGHTS?REDTAC 15 May 2009

• Delphine Nakache
• Faculty of Law, University of Alberta
• dnakache_at_law.ualberta.ca

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THE CONTEXT

• Flaws in the Federal Skilled Worker Program
  (FSWP)
• Labour shortage not only in highly-skilled
  occupations
• Backlog 2007- 585,000 waiting times up to 6
  years
• Mismatch with immigrants education experience

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THE CONTEXT (cont.)

• Ministerial Instructions, November 2008
• New eligibility criteria under FSWP.
  Fast-tracked applications if
• offer of arranged employment or
• from a TFW or international student having lived
  in the last year in Canada or
• from a worker with one year of experience under
  38 specific high-demand occupations (NOC O, A,
  B)
• Criticisms
• Instructions not subjected to Parliamentary
  debate
• Many skilled workers are out
• Priority to economic class immigration over
  refugee or family class?
• TFWPs as alternative means to fast track
  international workers into in-demand jobs

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TFWS IN CANADA

• Statistics
• 2007 302 300 TFWs in Canada 115,470 newly
  arrived
• Increase most pronounced in Alberta
• 2007 37, 257 temporary workers, a 350 per cent
  increase since 2003
• 2008 57,843 (preliminary estimates)
• 2 well-known programs
• Seasonal Agricultural Worker Program
• Live-in Caregiver Program
•  TFWP has until now largely operated below the
  constitutional radar the focus of this
  presentation

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ENTRY AND STAY OF ALL TFWS INTO CANADA

• Matter of shared federal-provincial jurisdiction
• s. 95 of the Constitution Act,1867 paramountcy
  doctrine
• Admission and expulsion of non-citizens fall
  solely under the federal jurisdiction (s. 91)
• TFWs protection is covered either by provincial
  legislation or by both provincial and federal
  laws
• Immigration and Refugee Protection Act (IRPA) is
  a framework legislation. Complemented by
• Immigration and Refugee Protection Regulations
  (IRPR)
• Other administrative guidelines (Ex Operational
  Bulletin)

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ENTRY AND STAY OF ALL TFWS INTO CANADA (cont.)

• TFW a foreign national engaged in a paid
  activity who is authorized to enter to Canada for
  a limited period of time (ss. 22, 29 47 of
  IRPA ss. 2 200 of IRPR)
• LMO and work permit compulsory under the TFWP
• Applications for work permit generally made
  outside Canada (exceptions - ss. 198 and 199 of
  IRPR)
• CIC
• Does the TFW meet the job qualifications?
• Will the TFW leave Canada after temporary stay?
• CBSA officer at the port of entry has the final
  say on whether an individual can enter Canada.

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TFWP basic facts

• 1973 exclusively for highly skilled
• Progressively expanded to include low-skilled and
  middle-skilled occupations
• Expedited LMO (e-LMO) process for occupations
  under pressure in British Columbia and Alberta -
  since March 2009, new conditions several strict
  restrictions apply now
• Low skill pilot project 2002
• Work permits initially 12 months extended to 24
  months in 2007 (24 months in, 4 months out), but
  in reality, but not every TFW leaves the country
  after two years. Long period of stay in Canada

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT

• Hiring process and recruitment fees
• Recruitment fees - no federal regulation
• - illegal under several provincial laws but
  not prohibited within the country of origin of
  the TFW (jurisdictional problem)
• Manitobas Worker Recruitment and Protection Act
  (April, 1 2009)
• Applicable in Alberta and other provinces? 
• Work permit conditions
• Tie each TFW to a single employer, but individual
  conditions on work permit vary (ss. 183 185 of
  IRPR)

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT
(cont.)

• Work permit conditions (cont.)
• To change condition on work permit or renew work
  permit before its expiration, TFW is allowed to
  apply from within (S. 199 of IRPR)
• Two application streams from within since Nov.
  2008
• renewal of a work permit with the same employer
  - implied status (IRPR, s. 186(u))
• change of conditions to a new employer - not
  authorized to work until TFW receives work permit
  (s. 124(1) (b) (c) of IRPR).
• Too long
• many TFWs leave the country with the intention
  to re-enter it. Risky process
• Detrimental impact of the economic crisis on
  TFWs- do we want them to leave?
• Employers have some obligations to low-skilled
  workers - But no follow up on these conditions

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT
(cont.)

• Mixed jurisdiction
• Minimal statutory safeguards are available to
  TFWs but they cant access them in practice
• 4 legislations
• Employment Insurance Act of Canada
• Employment Standards Code of Alberta (
  Regulations)
• Workers Compensation Act of Alberta
• Occupation Health and Safety Code of Alberta

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT
(cont.)

• Protection against unemployment
• (Employment Insurance Act (1996, c. 23))
• Strict criteria apply to every worker
• being without work for at least 7 consecutive
  days
• having worked for a certain number of hours in
  the last 52 weeks 
• Additional hurdle for TFWS section 18 of the
  Act - beneficiaries are workers who are
  available and able to work, but unable to find a
  job
• Restrictions on work permits
• The jurisprudence is very persuasive in its
  interpretation of section 18. Ex. in 2005,
  Jessica De Guzman

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT
(cont.)

• Legal protections in the workplace environment
• Alberta Employment Standards Legislation
• ESC Termination Notice/Termination Pay
• General rule mandatory if more than one year
  employment
• Exceptions - times and occupations under which
  termination notice is not mandatory (section 55
  ESC section 5 of ES Reg.)
• Practical problems for TFWS
• One week notice but several weeks to secure a new
  work permit.
• If a foreign worker is on a fixed term contract
  of 12 months or less, or is engaged in seasonal
  work or under certain occupational sectors, the
  worker will not be entitled to working notice or
  termination pay.

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT
(cont)

• Alberta Employment Standards Legislation (cont.)
• The Complaint Process Under the ESC (ss. 82 to 94
  of the ESC)
• Legal basis for the claim steps
• Procedural rules
• Practical problems for TFWS
• Complaint process is long, complicated, and all
  documents are in English only
• No recourse for immediate re-employment
• Progress made in setting up two advisory offices
  IN Alberta to deal with the complaints of
  temporary foreign workers against their
  employees. However
• Service provided in English only
• Loss of employment is still real

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RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT
(cont)

• Vague policies and guidelines for the TFWP
• Overlapping policies in the TFWP administration.
  Employers are expected to take care "of TFWs
  but
• Lack of time/resources/ knowledge
• When abusive employers, no monitoring mechanism
  until recently (HRSDC and CICs new program
  integrity measures)
• CIC and HRSDC could work together on providing a
  ready access to independent legal information and
  advice to TFWs
• CIC and HRSDC should share together their
  information about the location of TFWs in the
  different provinces (not the same data)

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ACCESS TO PR FOR LOW-SKILLED TFWs

• Unlikely to qualify for permanent residency under
  the FSWP
• Excluded from the Canadian Experience Class
  program
• Provincial Nominee Programs (PNPs) -the most
  likely path to permanent residence but
  opportunities are limited too

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ACCESS TO PR - PNPs

• Federal-provincial agreement. Two steps
• PNP application to authorities of a given
  province.
• If nominated for immigration by the provincial
  authorities, application for PR to CIC
• Provinces have their own selection criteria
• Some PNPs favour certain particular low-skilled
  occupations
• Saskatchewan - long-haul truck drivers
• Alberta - Semi-Skilled Worker class under the
  Alberta Immigrant Nominee Program (AINP)
• Manitoba - Maple Leaf in Brandon (60 of current
  MLF Brandon employees are foreign workers)
• Strongly employer-driven
• Very restricted occupations 
• Participation rates are still low, although
  increasing- target for 2009 20, 000 26, 000
  (4, 000 for Alberta)

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ACCESS TO PR - problems

• Individuals as workers, but not as full members
  of the society.
• Any temporary migration policy leads to pressures
  for permanent settlement
•   introducing workers of whatever skill level
  on temporary contracts and expecting the majority
  of them to leave at the end of these contracts
  seems optimistic. History teaches that there is
  nothing so permanent as a temporary worker.
• Findlay, 2006

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CONCLUSION

• For temporary foreign workers to really benefit
  from the opportunity to live and work in Canada,
  it is necessary to identify protection gaps
  within the TFWP and to better address temporary
  workers needs on a systemic level.
• This has implications for TFWs understanding of
  workplace expectations and their rights and
  obligations in Canada, including access to PR for
  those workers who may be in fact indefinitely in
  Canada and who should be granted a more secure
  status