Safeguarding workers on temporary migration programmes: study

Canada: Temporary migration programmes and risk of exploitation

The Canadian TFWP low-wage and agriculture (seasonal and non-seasonal) streams include features in their design which increase worker vulnerability to abuse and exploitation. On these streams, many workers face considerable restrictions including: tied migrant status to their employer; employer provided accommodation; restrictions on access to public healthcare; restrictions to bringing their families to Canada; and limited access to permanent residency. Alongside these restrictions, seasonal farm workers on the TFWP Agricultural Stream and SAWP are excluded from key provisions of provincial employment standards legislation, including in some provinces, the right to unionize. There is widespread documentation of worker abuse and exploitation on the TFWP, particularly in high-risk sectors such as agriculture where there is:

lack of adequate equipment or training on pesticide use, unsafe work conditions, strenuous/long work hours, and workplace harassment […] physical/sexual harassment or violence perpetrated by both employers and peers, and peer-policing and competition to perform at a rate that may cause acute or chronic injury (Caxaj and Cohen 2019 p.3).

Significant concerns were raised about the TFWP in 2009 by Canada’s Auditor General, who noted poor compliance with protection measures for workers on different low-wage streams and recommended that mechanisms be put in place to “ensure the integrity of the Temporary Foreign Worker Program and the protection of individuals” (Office of the Auditor General of Canada 2009 p.34). Subsequent public pressure regarding risks to workers led to the Government to implement a series of reforms to the programme in 2014 (Faraday 2016 p.18). However, whilst these reforms sought to address precarity amongst some workers on the TFWP, there were exemptions for the lowest paid sectors, including agriculture and care work, thereby sanctioning a higher level of risk for workers on these low paid temporary roles.

In February 2016, the Minister of Employment, Workforce Development and Labour indicated the Government of Canada’s intention to task a parliamentary committee with reviewing the TFWP (Mas 2018). The House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA Committee) launched its review into the TFWP in March 2016. The Committee heard evidence from migrant and labour rights organisations that low-wage workers on the TFWP were at a heightened risk of abuse due to the tied nature of the work permit which was thought to “magnify the power discrepancy between workers and employers” (HUMA Committee 2016). Of particular focus for those submitting evidence was the SAWP for its “discretionary power to repatriate workers when they do not comply with some aspect of the work” and the practice of SAWP employers naming workers they want to return the next season which is shown to discourage dissent (Ibid p.19). The report recommended measures to address “gaps in employer compliance and the protection of migrant workers’ rights” (Ibid p.33). The Committee’s ultimate report called for major changes to compliance and protection measures for workers on the TFWP.

In addition to the parliamentary report on the TFWP, in Spring 2017 the Auditor General of Canada published an audit of the management of the TFWP (Office of the Auditor General of Canada 2017). The audit report found gaps in compliance and called for an increase in ESDC workplace inspections, including more unannounced visits. In response, the Government of Canada announced an increase in “onsite inspections of workplaces that employ foreign workers” and an intention to collaborate with community organisations supporting at risk workers (Government of Canada 2017). In subsequent years, the Government of Canada has taken further action to address temporary migrant worker vulnerability, including introducing an open work permit for at-risk workers and targeting for temporary migrant worker support towards NGOs. The remainder of this case study will be dedicated to understanding the design and delivery of the open work permit for at-risk workers, from its origins in the BC provincial level pilot to the current federal policy.

In 2018, the Government of Canada proposed a new open work permit for migrant workers and their family members where there are “reasonable grounds” to believe the worker is at risk of or experiencing abuse (Government of Canada 2018). This permit, entitled the OWPVWdraws heavily on the design of and learning from a pilot ‘open work permit for temporary foreign workers at risk’. To understand the drivers and design features of Canada’s OWPVW, the details of this pilot provide important background and will be set out in the following section.

The BC pilot: Open work permit for temporary foreign workers at risk

In response to growing complaints about the abuse of workers on the TFWP in BC, the Government of BC sought to include migrant worker protection provisions within the Canada-BC Immigration Agreement at its five-yearly review point in 2015 (Government of BC). This move coincided with the Federal Government’s own review of the TFWP, leading to it supporting the inclusion of a provision on the protection of temporary foreign workers in the Canada- BC Foreign Worker Annex under the Canada-BC Immigration Agreement 2015 (Annex B Section 9: Foreign Worker Protection [R204 (b)]). This provision referred to the need for collaboration between the federal and provincial governments to build employer awareness about their obligations towards workers and employee understanding about support services. Importantly, the provision included a new open work permit for workers facing a “real and substantial risk to a foreign worker as a result of an employer not complying with federal or provincial laws” (Government of BC 2015). These laws included the BC Employment Standards Act and Occupational Health and Safety Regulation and the Federal Immigration and Refugee Protection Regulations [SOR/2017-56 s.2.] which establish employment conditions for the TFWP, including defining and prohibiting worker abuse.

The Canada-BC Immigration Agreement 2015 established a BC specific, time limited – 2 year – pilot from 2016-18 to enable ‘at-risk temporary foreign workers’ on employer and sector-specific work permits, and migrant workers authorized to work without a work permit, access to an open work permit. The work permit was issued for any of the following purposes: to ensure worker protection; to enable workers to change employer when at risk; to facilitate worker engagement in inspections of non-compliant workplaces; and to regularise worker’s status (IRCC 2015). The details of the open work permit were developed in consultation with BC’s established ‘settlement services’, civil society organisations funded by the Government of BC to deliver support to migrant workers (Government of BC 2022). Applicants for the open work permit, were required to initially make contact with a provincially funded settlement service provider who had delegated responsibility for submitting a written recommendation on behalf of the worker outlining their case, the laws they felt had been contravened and the risks to the worker. In addition, the worker applicant was required to have submitted an official complaint about their treatment to the appropriate enforcement agencies, including law enforcement and labour inspection authorities (Aziz 2022 p.10). Applications were assessed and decisions made by IRCC who issued open work permits for up to 180 days (IRCC 2017 p.4).

Figure 1 has been removed from the document but is available to view using the following link: Supporting documents

Figure 1: A graphic showing the process for application and issuance of a BC open work permit for workers at risk of abuse, covering the roles of enforcement agencies, foreign workers, service providers and Citizenship and Immigration Canada, the former name for the Canadian federal department, Immigration, Refugees and Citizenship Canada. (IRCC 2015)

During the course of the two-year pilot, 75 work permit applications were received by the Government of BC, 68 were approved (90.7 per cent), six refused (8 per cent) and one decision was unknown (1.3 per cent) (Ibid). The pilot was deemed, by both the Government of BC and the Federal Government, to be a success, contributing to the development of the federal OWPVW programme:

It was fundamental in helping the federal government get a grasp on what was happening with foreign workers, in real time, in their situations and it led to this national programme. (Government of BC)

Whilst acknowledging the pilot’s success both the provincial and federal governments identified areas in which improvements could be made, therefore the BC pilot provides a helpful example of where practice has informed design. The following section will look at the development and design of the federal OWPVW, including the adjustments that were made based on learning from the BC pilot.

BC Employer Registry

The Government of BC has taken a range of steps to address migrant worker vulnerability in the province. In addition to the open work permit, they have piloted a series of migrant worker protection measures including: a migrant worker support network; a licensing system for labour recruiters; an extended period for migrant workers to make labour complaints; prohibitions on recruitment fees and the misrepresentation of work; and established public registries for both labour recruiters and employers seeking temporary foreign workers (Government of BC 2023). The BC registry for employers seeking temporary foreign workers was introduced in December 2020 as a mandatory requirement for all employers seeking workers under the TFWP, SAWP, Home Child Care Provider or Home Support Worker pilots and any other programme that requires a LMIA^[3] (Government of BC 2020). If an application is successful then an employer is issued with a registration certificate which is valid for up to three years. An application may be refused if inaccurate or insufficient information is provided, if provincial or federal laws have been broken, or if an employer is not deemed to carry out business “legally, honestly, with integrity or in the interest of the public.” (Ibid) The recruiter and employer registries have helped the Government of BC to overcome the provincial level data gap and enabled it to draw on this information to conduct workplace inspections and compliance activity (Government of BC). This registry presents an interesting example for Scotland, which like BC, does not have access to all migration statistics required to comprehensively oversee the protection of its temporary migrant workers.