TEMPORARY FOREIGN WORKERS, PERMANENT RIGHTS? REDTAC – 15 May 2009 Delphine Nakache Faculty of Law, University of Alberta

THE CONTEXT… Flaws in the Federal Skilled Worker Program (FSWP) Labour shortage not only in highly-skilled occupations Backlog: ,000 & waiting times up to 6 years Mismatch with immigrant’s education & experience 2

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 3

TFWS IN CANADA Statistics: ◦ 2007: 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 4

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) 5

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. 6

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 7

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) ◦ Manitoba’s Worker Recruitment and Protection Act (April, ) ◦ 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)

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 :  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 9

RIGHTS AND PROTECTION IN THE FIELD OF EMPLOYMENT (cont.) - Mixed jurisdiction - Minimal statutory safeguards are available to TFWs but they can’t 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 10

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

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. 12

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 13

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 CIC’s 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)

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 15

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) 16

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,

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 18