Employers hiring temporary foreign workers face inspections

‘The government is recognizing there is a real problem with abuse and exploitation’: Immigration lawyer
By John Dujay
|Canadian HR Reporter|Last Updated: 05/29/2018
TFW
A migrant worker from Mexico drives a tractor while tending to vines at a vineyard in Niagara-on-the-Lake, Ont., in 2010. Colin Dewar/Shutterstock

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Recently, the federal government increased inspections of job sites that are involved in the Temporary Foreign Worker Program (TFWP).

Canada’s Employment and Social Development Department (ESDC) targeted 1,600 “high-risk” employers, according to media reports, and more than 1,340 on-site inspections have been launched or are in varying stages of investigation.

The clampdown — which follows auditor general Michael Ferguson’s 2017 report that showed a lack of supervision over the TFWP — is long overdue, according to one immigration lawyer.

“The government is recognizing that there is a real problem with abuse and exploitation of workers in the program,” said Susanna Quail of Allevato Quail & Roy in Vancouver. “They are very vulnerable because low-skilled workers are on closed work permits and they can’t work for any other employer than the employer named on the work permit, which means that if they’re experiencing abuse or exploitation, it’s very difficult for them to leave that employment relationship.”

Complaints about the system were the most likely cause of the crackdown, said Klaudios Mustakas, immigration consultant at Mustakas & Associates in Kitchener, Ont.

“And then it would start an investigation, and if it looks as if it might be industry-wide or it might be there are some problems with the system or with the approvals, then they’re going to start doing more checks to make sure that the employers meet their commitments,” he said. “Obviously, the government probably has decided it’s time that we do some thorough spot-checks to make sure that employers are meeting their commitments that they had made in order to bring those people in.”

But Dennis Brazolot isn’t sure what the government is hoping to uncover in the program, which began under the previous Conservative government.

“In terms of the political side of things, the (Liberal) government probably came in with the ‘If-it-ain’t-broke-don’t-fix-it attitude’ and it didn’t seem to be broken,” said the immigration consultant at Brazolot Migration Group in Hudson, Que. “Employers that I have talked with, 99.9 per cent of all of them are in compliance — they follow the rules, they follow the regulations.”

Bad employers exist and they should be exposed, he said, but sometimes temporary foreign workers aren’t completely clear on what to expect when they begin working in Canada.

“Some are justified, but you also have some of the foreign workers come over who expect the labour laws to be the same as where they come from. That causes issues,” said Brazolot.

“We get some other clients who have come from very socialist countries that expect everything to be in accordance to what their laws were and the employer might say, ‘I don’t pay that,’ and they’ve gone to the labour board saying, ‘I’ve been mistreated because he didn’t give me half an hour for personal reasons.’”

Several problems with program

A big part of the problem stems from the labour market impact assessment (LMIA), which is meant to show there is a need for a foreign worker to fill a job, and no Canadian worker is available to do the job.

“The program itself is flawed and then the audit program process itself is flawed,” said Brian Dingle, a partner in the business immigration group at Borden Ladner Gervais in Toronto. “It just prints money for lawyers. It’s just wasteful and it’s unthinking and it’s not addressing the mischief it’s meant to, which is the people who abuse temporary foreign workers.”

“If you’ve got 10 Hondurans living in your basement — purportedly brought in to be carpenters or something like that — but you’ve stripped them of their passports and they’re cleaning hotels and you’re not paying them, surely that’s stuff that we should we should go after; it’s really human trafficking.”

A common tactic for the unscrupulous is misrepresenting what a worker should be paid.

“For instance, I’m looking for a drywall installer, and I’m going to be paying $25 an hour because that’s the median of that wage scale, and then, all of a sudden, the employee gets approved, the person comes here, and now you’re paying them $18 an hour,” said Mustakas.

“We have a problem here, there’s a disconnect because obviously if you said from the beginning ‘I’m going to be paying an $18 an hour,’ the government will refuse to approve the LMIA because it doesn’t meet their standards.”

Problems also stem from employer inaction — but not necessarily from them acting unscrupulously.

“You have to be very careful when you’re employing foreign nationals (with regards to) document-retention requirements. You’ve got to keep the records of employment for six years from the date the work permit was issued or the labour market impact assessment was issued,” said Dingle.

“What happens is people get the approval and they forget about it and then, you know, Joe was promoted and he’s getting a pay increase or he’s transferred to another office and people don’t remember that Joe was not Canadian or a permanent resident and Joe can’t do that — the employer can’t change the terms of conditions of employment without first going to ESDC to ensure that it’s OK.”

The federal government is to blame for some of the issues, said Brazolot.

“Employers get frustrated because the application is onerous. It’s justified but it’s lengthy, you’ve got to go to every nth degree proving every aspect and yet you could have done your advertising for three months, as they request, but then they’ve changed the local labour rate in that area and you have to advertise for another three months because you have to show the 23 cents an hour more that they’ve just increased it to.”

Push for change

The government should work to end the abuse that happens, according to Quail.

“For caregivers, in particular, there’s often duties that are outside the scope of the work that they’re hired to do. They’re supposed to be providing care but, for example, employers will send them to clean other people’s houses, family members’, clean their businesses, lots and lots of unpaid work,” she said.

“It’s very common practice that temporary foreign workers aren’t paid overtime, they’re required to work more hours than they’re paid for. (It’s) very common that where they’re required to receive accommodation from the employer, the accommodation is substandard.”

There have been demands from temporary foreign worker groups or migrant worker groups asking to change that power dynamic by having either open work permits or having sector-specific work permits, according to Quail.

“For example, you can work as a caregiver and if you have one employer who is requiring you to work 12 hours a day, you can go work for another employer as a caregiver without having to go through a new process of getting a new work permit which takes several months and it’s really a huge obstacle,” she said.

“The government didn’t make those changes that were requested, so this is kind of the consolation prize to show that there’s a recognition that there’s a problem of abuse and exploitation of workers, and that rather than fixing the fundamental power imbalance, there’s going to be some enforcement.”

While consultations have happened to address some of the concerns with the TFW program, no substantive changes have been made, said Quail.

“The different government agencies that work together to administer the Temporary Foreign Worker Program have had maybe one or two meetings where they brought together stakeholders and worker advocates, employers and organizations, (and) consulates that are involved in the seasonal agricultural worker program,” she said.

“The committee’s report actually recommended some sector-specific work permits but the government didn’t adopt that.”


The photo accompanying this story has been updated.

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