Foreign worker program given another tweak

Regulation that barred employers with criminal records removed
By Liz Foster
|Canadian HR Reporter|Last Updated: 01/28/2014

The federal government has announced further reforms to the Temporary Foreign Worker Program (TFWP) in its ongoing efforts to ensure neither the program nor the workers hired through it are abused.

A regulation that prevented employers with criminal convictions — in human trafficking, sexually assaulting an employee or causing the death of an employee — from applying for workers under the TFWP was recently removed as part of the reform.

Labour groups have criticized the announcement — made on New Year’s Day — as a watering down of regulations intended to protect vulnerable workers.

“That does raise suspicion because when the original regulations were proposed, there was quite a lot of fanfare,” said Angella MacEwen, senior economist at the Canadian Labour Congress (CLC). “Then they quietly, over the holidays, remove some of them. This is a tough-on-crime government going soft on corporate criminals.”

The TFWP’s regulations continue to include a condition requiring employers to make reasonable efforts to provide a workplace free of abuse. The clause concerning employers with criminal convictions will be included in the program’s operational guidelines as examples of unsafe workplace environments.

“Reports that the latest regulations weaken protections of temporary foreign workers are incorrect,” said a statement released by Employment and Social Development Canada. “The final regulations are as effective as the draft regulations since they will prevent those who create unsafe work environments from accessing the Temporary Foreign Worker Program. This standard is expected to catch the same number of abusive situations (as) the draft regulations.”

The statement went on to clarify that employers engaging in serious criminal activity such as human trafficking, sexual assault or conduct leading to the death of an employee are “by definition” creating an unsafe work environment and will not be allowed to apply for workers under the TFWP.

MacEwen said the amended regulations are acceptable in theory but she fears a continued lack of enforcement makes them moot.

“The regulations say that employers have to make a reasonable effort to provide safe workplaces for their temporary foreign workers. The problem is, is what constitutes reasonable effort hasn’t been laid out yet, so we don’t know what that means,” she said. “We also don’t know what enforcement of those guidelines will be like. At this point, it’s something that looks very good but doesn’t mean a whole lot for temporary foreign workers.”

These workers are in an especially vulnerable position because their presence in Canada relies completely on their employment, said Larry Hubich, president of the Saskatchewan Federation of Labour (SFL). Complaints are rarely raised by them for fear of being fired, and with very little representation — union or otherwise — temporary foreign workers are largely left without a voice.

“The TFWP creates a vulnerable underclass of workers,” said Hubich. “The Band-Aids that they’re putting on this program don’t adequately address that problem.”

While removing the clause concerning criminal charges from the regulations and placing it instead in the guidelines may have been a decision related to efficiency, it could also indicate the government is making an effort to be more flexible towards employers with criminal records, said MacEwen.

CFIB critical of program

Dan Kelly, president of the Canadian Federation of Independent Business (CFIB) and a critic of the government’s changes to the TFWP, disagrees the recent amendment is part of a plan to water down the program.

“We’ve been very, very opposed to the overall government reforms to the TFW program,” he said. “I’ve referred to that as the worst decision the Harper government has made since it took office. But if somebody is misusing the program, I don’t have any problem with there being strong consequences.”

The clause regarding a reasonable effort to provide a safe workplace should have been the government’s starting point for reforms to the program, said Kelly. The addition of significant new fees and paperwork requirements makes the TFWP more difficult to access for small businesses, he said, and does less to protect temporary foreign workers than regulations requiring a safe workplace and allowing for timely responses to abuse.

Amendments to the TFWP were first announced in Canada’s Economic Action Plan 2013. Regulatory and administrative changes were introduced that will give the government authority to conduct inspections to make sure employers are meeting the conditions of the program, strengthen criteria for assessing Labour Market Opinion (LMO) applications and give the government authority to revoke or refuse to process work permits when necessary.

The changes, including the most recent amendments, came into effect on Dec. 31.

More on the TFWP changes

For more detailed information on the changes to the Temporary Foreign Worker Program and what they mean for employers, look for expanded coverage in the Feb. 24 issue of Canadian HR Reporter.

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