Serving the Public Interest: Is the TFWP Good for Canada?

7/23/2019 Serving the Public Interest: Is the TFWP Good for Canada?

http://slidepdf.com/reader/full/serving-the-public-interest-is-the-tfwp-good-for-canada 1/21

0

Serving the Public InterestIs The TFWP Good For Canada?

Max Zhu212140000

December 18, 2015Professor John Wilkins and Ian Macdonald



1

Executive Summary

In the globalized world, the flow of capital, communication and population is the new

norm. The demolition of political boundaries have enabled people to migrate in search for better

employment opportunities abroad. Unfortunately, the influx of foreign workers have fuelled

intense competition in the domestic labour market, squeezing out the middle class and leaving jobs

only at the ends of skills spectrum. As domestic workers are reluctant to accept low-paying,

dangerous and precarious employment, G8 countries must look abroad for cheap surplus labour to

fill the low-skilled positions. In Canada, these workers arrive through the Government of Canada’s

Temporary Foreign Worker Program (TFWP), a federal employment initiative that brings foreign

nationals, up to eight months in a year, across the country to fill short-term labour shortages for

local businesses. Originally intended to “respond to labour shortages” on Canadian farms, the

TFWP has since been abused by employers as a means to replace domestic employees as foreign

migrants work “better” and are cheaper to pay. Employers have been caught illegally retaining

their passports upon their arrival in Canada and can freely repatriate sick, injured or undesired

workers back to their home nations without justification. In light of these human rights abuses,

violations to Canadian law and the harmful implications to the regional development of Canada’s

economy, this paper contends that the TFWP does not serve the “ public interest” – defined as a

program that is “fairly” executed and meets the common good of society and its shared values (Pal

and Maxwell). Following an introduction to the issue, the paper will develop three key business,

legal and moral arguments against the program, including the moral responsibility ought to be

exercised by the various levels of government involved. It provides three key recommendations

on addressing the main concerns and concludes with an outlook on how the TFWP will be

expanded under the looming Trans-Pacific Partnership Agreement.



2

Introduction

History and Management of the TFWP

The Temporary Foreign Worker Program (TFWP) started in 1966 as a partnership between

Canada and Jamaica. The Canadian government, in response to concerns from farmers who were

finding it increasingly difficult to hire workers from Canada to harvest crops, established a

Memorandum of Understanding (MOU) to allow workers to legally enter Canada for periods of

six weeks to eight months to alleviate Canadian labour shortages within the agricultural sector

(Flecker). This branch of the program is known the Seasonal Agricultural Worker Program

(SAWP) and brought 264 workers in its first year (Flecker). In the next 10 years, partnerships with

nine other Caribbean nations were established and brought a total of 4,000 workers each year by

1976 (Flecker). The TFWP has grown significantly in the last 40 years. Two new branches have

since been established – the Live-In Caregiver Program (LICP) and the Pilot Project for

Occupations Requiring Lower Levels of Formal Training (PP) – inflating the overall program size

by 63 times to 251,253 workers annually (Citizenship and Immigration Canada). The top three

source countries are the Philippines, the United States and Mexico.

Originally, the TFWP was managed by the Canadian government through Human

Resources and Skills Development Canada (HRSDC); however, in 1987, the administration of the

program was privatized in 1987 to Foreign Agricultural Resource Management Services

(FARMS), a non-profit organization controlled and funded by Canadian growers (Flecker). Quotas

were initially established to limit the number of migrant workers admitted to Canada and the type

of skilled work they may be employed to do. This was eliminated by FARMS in exchange for a

supply-demand system that matched labour needs to labour supply in the source countries



3

(Flecker). In 2002, a pilot project for “low-skilled” workers was initiated (PP), opening the doors

for all types of employers to hire migrants for any job with no to low skill requirement. It remains

a pilot project today and has faced the heaviest backlash in the court of public opinion. In one

incident, McDonald’s franchises in Lethbridge, AB and Parksville, BC were barred from hiring

foreign workers by former Employment Minister Jason Kenney in 2014 as local employees were

being denied much-needed overtime shifts to accommodate the full-time working hours

guaranteed under the migrants’ contracts (Tomlinson). Many locals “didn’t get enough work to

pay their rent” and often felt “marginalized” or “exiled” by the Filipino migrants who were

promoted to managerial roles (Tomlinson). The TFWP has evolved into a form of reverse

discrimination against unemployed and hard-working Canadians.

Both Sides of the Dilemma

Benefits of the program do exist. Policymakers contend that the gap in supply for low-

paying, manual and precarious work leaves employers with no domestic alternatives to fill the

positions. The agricultural sector faces the challenge of having to fill relatively large number of

roles in a short period of time to prepare for growing or harvesting seasons and processing times

for economic immigration programs take too long. In contrast, 80 percent of low-skilled worker

applications were rendered within 16 weeks in 2009 (HRSDC et al.). Without the SAWP, 53

percent of employers would have no other alternatives and 20 percent would have closed or sold

their businesses (HRSDC et al.). The less-expensive cost of employing migrant farmers keeps the

cost of food low for Canadians and secures the competitive position of Canadian agriculture in

global exports.



4

The social cost of the program, however, is far greater for all stakeholders involved.

Because foreign workers are paid at the same ‘prevailing rate’ as Canadians i.e. minimum wage,

the cost advantage seems relatively small on the surface. This is on top of the private health

insurance, work permits and housing accommodations that employers are legally obligated, as

established by the annual MOUs, to provide for workers. Between the fine lines, however, rests

the deductions that employers are entitled to take from workers’ paycheques – including EI, CPP

and pension plan premiums; cost of basic living supplies; and transportation costs, in the event of

medical or workplace emergencies. In effect, each worker is responsible for more costs than the

average Canadian worker and pays for the employer’s contribution to social assistance programs,in addition to their own. Even worse, Canadians are being passed over by employers for these

savings. Only 22 percent of farm employers would increase efforts to recruit Canadian and

permanent residents to meet their labour shortages, opting to not fill them at all (HRSDC et al.).

Despite their contributions to the social welfare system, very few are able to tap into them

for assistance. They do not receive language training to learn English or French when they are

here. With their basic personal needs met on farms distant from urban centres, they do not have

access to vehicles and only receive a single day off in the week to purchase groceries or send

money back home. On the farm, they engage in unsafe and dangerous working conditions,

handling chemicals without adequate training and strain provincial health care systems when they

become sick or injured. In addition, human trafficking systems have emerged in some provinces.

As workers realize their non-existent legal status in Canada, they escape to the underground

economy as an undocumented person (Flecker). This jeopardizes the safety of local communities

and the risk for greater criminal activity, particularly as no level of government owns an effective



5

tracking system of who or where exactly migrant workers are employed. These details are left

completely between FARMS and their employers.

The matter is about to get worse. Under the Trans-Pacific Partnership (TPP) signed by the

Conservative government in October 2015, employers in ‘regulated’ skilled trades – such as

plumbing or construction work – will no longer need to obtain a Labour Market Opinion (LMO)

from the HRSDC prior to applying for foreign workers (Curry). Positive LMOs must be obtained

by employers today to confirm that they have met the minimum advertising period for jobs (six

weeks) and there are insufficient Canadians to fill the open roles. By eliminating these

requirements, employers can bypass government oversight and hire as many foreign workers as

desired and, consequently, laying off the many good-paying, unionized jobs in these fields. Canada

is bound to see more foreign workers in the coming years that will aggravate the current social

cost of the program on themselves and other Canadians.

Scope and Literature Review

This paper will first identify the key stakeholders in the issue. Then, after defining what

“public interest” means in Canada, it applies the lenses of economics, law and morality to make

the argument that the TFWP is not good for Canada. All of the information is obtained from

secondary sources. Arguments in favour of the program are often drawn from government

documents while opposing viewpoints are presented from academics, media sources and labour

unions, including a 2011 report from the Canadian Labour Congress titled Model Program – or

Mistake?. Similar “guest worker” programs in the United States (H-2A and H-2B visas) will be

discussed in recommendation for the Canadian program.



6

Figure 1: Key Stakeholder Analysis

Under the status quo

Stakeholder What their interest is Benefits Limitations

Employers

Sustain business and profitability

Fill labour shortages

Efficient system for meeting labour needs; 70% ofSAWP employers unable to find Canadianworkers to fill position

Can bring labour to distant regions or challenging jobs not taken on by most Canadians

Must obtain a Labour Market Opinion (LMO)from the HRSDC prior to applying for foreignlabour

Must obtain work permit from Citizenship andImmigration Canada (CIC) and meet eligibility

requirements

ForeignWorkers

Earn a decent level ofincome and remit funds

back to families back home; pay for child’s education

Some are promised the rightto PR and citizenship

Workers are paid at ‘prevailing wages’ of themarket for their jobs, often minimum wage due tothe skills required

Living accommodations, airfare to/from Canadaand private health care insurance is paid for byemployers

Caregivers can obtain PR after 24 months or3,900 hours of work, with employer’s consent

Unpaid overtime due to proximity to place ofwork, either living in-home or near the farm

Payment of significant ‘employment placementfees’ – over $1,000 for SAWP and $3,000 – 9,0for LICs

Substandard living and working conditions butonly 20% take corrective action – no access tolegal channels

Federal

Government

Meet labour demands ofeconomy; address OECDgoals of integrating labour

markets globally

Serve the best interest of allCanadians

Some oversight achieved through annualnegotiations of MOUs with Caribbean countriesfor the SAWP

Agriculture is sold at competitive prices indomestic and foreign markets

No effective system to track the whereabouts oforeign workers

Bureaucratic backlog due to extensive partnersrequired with diff. levels of government(limitations of power under Section 91, 92 ofConstitution)

CanadianPublic

Maintain a good standard ofliving in Canada

TFWs contribute to social welfare systems of all

Food and child care is affordable

Spur economic growth in distant communities inCanada (i.e. groceries purchased)

Inability to land jobs in low-skilled position duemployer preferences for hardworking, “better”foreigners

Burden on regional health care systems due to preventable workplace hazards



7

Findings – Analysis and Discussion

Defining the Public Interest

The term “public interest” is vaguely defined and susceptible to many different

interpretations and approaches in the public sphere. This paper will use the framework presented

by Leslie A. Pal and Judith Maxwell in the paper Assess the Public Interest in the 21 st Century: A

Framework prepared for the External Advisory Committee on Smart Regulation in January 2004.

Public interest is the balance of process, public opinion, specific interests, common interest and

shared values:

Figure 2: 5 Components of the Public Interest

Key elements Evidenced by

Process Existence of transparency, reasonable access by all stakeholders,neutrality

Public Opinion Addressing majority and strong majority views

Specific Interests Fair distribution of costs and benefits among all groups under the optionselected

Common Interests Managing the trade-offs of some options over others

Shared Values Considering legal rights and conflicts among shared values in society

In other words, the TFWP will meet the public interest if it balances the interests of

individuals, enterprises and the collective values of society (17). The program would be designed

with transparency in mind, engaging the relevant stakeholders identified in the previous

stakeholder map. It will consider how the majority of Canadians feel about importing foreign

workers but would only select the option that does not conflict with the law, such as the Charter

of Rights and Freedoms. Above all, it would not unfairly burden any particular group involved –

whether it be the employers or foreign workers – and, if it does, there should be evidence of work

done to shift costs and allocate benefits across all groups.



8

The Case for Regional Development

A key argument raised by proponents of the TFWP is its impact in spreading economic

development across all regions of Canada. As identified in a joint report commissioned by the CIC,

HRSDC and the Canada Border Services Agency, seasonal jobs are not sufficiently attractive to

encourage migration across or within provinces yet these positions need to be met or farms may

otherwise cut production (HRSDC et al.) Fluctuations in annual production make it impossible to

predict the need for labour. As hiring workers through the Federal Skilled Worker or Provincial

Nominee Programs can take between 8 to 34 months, the SAWP provides a quick, 16-week

turnaround time to provide farms with enough labour by the annual harvest (HRSDC et al.). The

demand is real; one survey of SAWP employers noted that 70 percent were unable to find workers

in Canada to fill their positions and had little choice but to apply for foreign help. Efficiency is a

key objective of the federal government’s oversight as it ensures that Canadian businesses remain

globally competitive in the commodities market. Without the hands to do the job, labour-intensive

agriculture – such as vegetables – would be forced to cut supplier contracts or raise their prices to

cover the lost production (Read et al.). Compared to immigrants, TFWs are assigned to one

employer each year and have mobility restrictions to where they can supply their labour. They can

be easily ‘shed’ when labour market conditions change – by not hiring them next year – and thus

do not impact the job prospects of Canadians and permanent residents in poor economic times.

This was demonstrated in 2009 as increased national unemployment of 8.3 percent led to a 17

percent decrease in TFWs accepted (HRSDC et al.). Above all, the limitations on where they work

indirectly affects where they spend their discretionary income. On some farms in Manitoba, for

instance, workers are transported to nearby cities of Winnipeg or Portage La Prairie on Friday

night excursions to do their shopping or access medical services (Read et al.). The migrants valued



9

the rare opportunity to speak to other migrants and would spend much time within the local

commercial establishments that hosted them. Having workers confined to certain areas ensures

some regional development as they support the local bars, grocery stores and other businesses that

profit from their weekly visits.

Opponents of the TFWP decry this narrow scope of regional development raised by the

government. The same impact would be felt by hiring Canadians for those farm positions, albeit

in different towns and cities, as they would likely live on or near the farm as well. By failing to

enforce regulations, most employers only advertise for seven days, rather than the mandatory six

weeks, prior to applying for a LMO and receiving permission to hire abroad (OFL). Canadians

job-seekers are not given a fair period of time to apply to these job postings. Moreover, most of

these shortages are self-created as employers demand highly-qualified candidates for below-

average wages to dissuade local applications (OFL). There is no follow-up process to determine if

the same qualifications are upheld once temporary workers arrive in Canada. Only a small amount

of regional development arises from the TFWP. Most workers are housed and socially isolated on

the farm and do not have the opportunity to contribute to the local community. They are often

selected for their low levels of education and are unlikely to understand English, nor have the

opportunity to take English classes with their lone day of rest (Read et al.).

One of the strategic outcomes of the TFWP listed by the HRSDC is “migration that

significantly benefits Canada’s economic, social and cultural development”. With their inability

to converse in English, these workers cannot add, or take, important pieces of culture to their

communities. Furthermore, they lead their lives in fear of violating the rules of their contract. In



10

an interview with the Canadian Centre for Policy Alternatives, farm worker Manuel ascribes his

decision to not play soccer to his fear of being injured. He would be sent back to Mexico and not

receive any insurance payouts for his injuries, as it “didn’t happen at work” (Read et al.). Another

point of resistance is the meagre amount of income they earn. On average, TFWs are paid

‘prevailing wages’ but not all workers are paid the same. High -skilled workers earn $33 an hour

while low-skilled workers in general labour earn $15 per hour; however, seasonal agricultural

workers only make an average of $10 per hour, below the minimum wage in all provinces across

Canada (HRSDC et al.). This creates a program marred by income inequality as the above-market

pay of skilled workers is used to offset the income inequality of the marginalized migrants at the

bottom. All workers must pay placement deposits to FARMS and the International Organization

for Migration (IOM) to validate their contract. For Guatemalan migrant workers, the $400 fee is

equivalent to 17 percent of their average annual income and many borrow from loan sharks to keep

up with the debt payments (Flecker). Coupled with other deductions, these workers are left with

little money to invest in the local economy nor make significant contributions to the social or

cultural spheres of their nearby towns.

In sum, TFWs do not play a large role in regional development of the Canadian economy.

While their assistance is necessary to the profitability of farm enterprises, they make a small

imprint on Canada’s social fabric and retain little connection to their work geography. Only 5.5

percent of economic immigrants between 2005 and 2009 were TFWs and, with no ties to local

communities, few return to live in those communities and add to regional development in the long

run (HRSDC et al.).



11

Violation of the Law

As part of the government’s duty to consider shared values, no policy or program shall

violate the legal rights of all parties involved (see Figure 2). Yet by placing the administration of

the TFWP into the hands of Canadian growers and farmers, migrant workers are denied the right

to receive basic protections under the law. For example, the Alberta Ministry of Employment and

Immigration conducted inspections on all 407 workplaces that employed migrant workers and

discovered that 74 percent of the employers had violated the Employment Standards Act regarding

overtime pay and record keeping (Flecker). Not all workers were aware of the rules of wage

legislation and, even if they did, most did not undertake corrective action for fear of not being

‘recalled’ in the next year. This was the case for worker complaints against the exorbitant fees

charged by labour brokers to bring them to Canada. Every province has provincial legislation on

regulating employment agencies but most function on a complaints-based system that requires the

worker to file the complaint. In Alberta, only 277 investigations were undertaken by the

government into broker activities in 2007 (AFL). Yet, when the Alberta Federation of Labour

contracted a lawyer to extend free legal support to workers, over 1,400 complaints were logged

within the first six months of the Special Advocate Project (AFL). This demonstrates that foreign

workers are aware of their subjection to poor working conditions but lack the means to access

justice and equality.

Many provincial labour laws continue to exclude farm workers from the legislation that

protects permanent residents and Canadian citizens. Some arise from the nature of their work;

agricultural workers in Ontario, for example, are denied the freedom of association as collective

bargaining laws does not extend to their jobs. Minimum wages do not have to be paid for non-



12

mechanized farm jobs, such as picking raspberries or strawberries (Carpentier and Fiset). In British

Columbia, the Employment Standards Act considers LICs as ‘contractors’ rather than employees,

making it more difficult to unionize the profession. Most provinces do not recognize the domestic

arena as a workplace, denying the foreign workers the legal protection from workplace violations

(Flecker). Other exclusions arise from the unilateral way the system is designed. Recognizing the

power imbalance they wield over low-skilled workers, the Canadian government has a clause in

every MOU that denies individuals whose spouses or children do not reside in their home country

(Flecker). This would be a form of discrimination under provincial labour laws as it restricts one’s

employment opportunities on factors irrelevant to their job description. The federal government

claims that it helps reinforce the temporary nature of the program as it encourages individuals to

return home (Flecker). Had the program been developed in consultation with human rights groups

or migrant workers, the clause would not likely exist as it legally separates families apart. This is

a direct violation of due process in the five-part formula to public interest as foreign workers could

not reasonably affect the regulations that apply to them.

The most damaging element of the TFWP is the systemic discrimination that migrant

workers must endure on a daily basis. The Québec Court of Appeal defines it as “a set of facts,

institutional policies, decision-making procedures, behaviours and attitudes that…maintain

disproportionately exclusionary effects on members of groups” (Gaz Métropolitain). As the federal

government maintains oversight of the program, the TFWP is considered government action and

is required to abide by the rights protected under the Charter . In practice, however, migrant

workers rarely obtain this level of protection. Given the geographical situation of farms and their

living quarters, they are perpetually linked to their workspaces on a daily basis. They do not have



13

the reasonable means to meet with other migrants and take collective action against workplace

abuse, for instance, and this violates their fundamental freedom of association under Section 2. It

jeopardizes their right to fair and reasonable conditions of employment, as well as their being, and

can affect their right to life and liberty under Section 7. In addition to the Charter , the TFWP also

violates provincial human rights legislation, such as the Ontario Human Rights Code or the Quebec

Charter of Rights and Freedoms (Carpentier and Fiset). The non-legal status complicates their

determination of primary residence as well as eligibility for social services. In Quebec, this

prevents them from receiving legal aid, social assistance and may deny them the right to education

as discretion is left with individual school boards (Carpentier and Fiset). Even if they wished to

leave their employers’ quarters, they would be unable to access low rental housing as applicants

must be a permanent resident – which they can never be – who has resided in the province for

more than 12 months (Carpentier and Fiset). Their contracts are limited to a maximum of eight

months per year. Altogether, the program places them under conditions that would violate their

right to mobility, free public education as well as measures of financial assistance that the Quebec

Charter guarantees all people in the province (Carpentier and Fiset). The system is set to fail the

foreign workers by indirectly shifting them just outside the scope of federal or provincial

legislation.

Overall, TFWP is a vehicle that excludes migrant workers from the basic protection of the

law. By not providing the channels for them to access the law and imposing unlawful restrictions

on their employment, the program affects many of the human rights they deserve as persons in

Canada. Demanding that they work with a permit at all times limits their ability to shift employers

and, in turn, harms their freedom to resign or alleviate their own social conditions. This freedom



14

is not codified in any level of law but, as described by Claude Fabien, “it marks the difference

between slavery and the contemporary conception of work” (Fabien). To truly serve the public

interest, the TFWP ought to respect the legal rights owed to all people, including migrants, as part

of its commitment to shared values and integrate their opinions in the process of sustaining the

program in the future.

Responsible Action

When it comes to the TFWP, the so-called ‘elephant in the room’ is how inherently racist

it is. In 2006, 63 percent of temporary migrant workers in Canada were from low-income countries,

and 62 percent were racialized workers from non-European, global South nations (Thomas). The

program is administered in a way that encourages employers to import workers from certain racial

groups, out of characteristics that they may be more compliant, “better” or more hardworking than

others (Tomlinson). LICs and domestic workers, for instance, disproportionately come from the

Philippines while SAWs are mostly hired out of Mexico. Once the workers arrive, they are subject

to racist insults and, in the case of TFWs in Southwestern Ontario, communities in nearby farm

towns deliberately raised prices in response to their anger of losing key agricultural jobs (Valiani).

It exemplifies that the values of the Canadian majority, in terms of maintaining a good standard of

living, are being ignored to service the profit-driven motives of the agricultural sector.

In the first half of the twentieth century, European women who entered as domestic workers

were granted permanent residency status upon arrival and were not required to meet any

expectations. Today, some domestic workers from the Caribbean and the Philippines have yet to

be granted permanent status, despite having worked as a nanny since the 1970s (Valiani). While



15

LICs qualify for PR after 24 months or 3,900 hours on the job, their application will only be

processed with the authorization of their employers. Immigration decisions are, then, being shifted

into the hands of Canadian employers, shaping the nation’s policy for business interests and not

necessarily the ideal interests for Canada’s future. This has begun already; in 2008, for instance,

252,235 TFWs arrived in Canada while only 242,343 individuals were granted permanent

residency status (Flecker).

Mexico’s abundant supply of temporary workers arose as a result of intensive agricultural

economic liberalization under the North American Free Trade Agreement (NAFTA). The Mexican

government decreased its subsidization of farms and, as world prices for wheat, beans and corn

plummeted, most Mexican farms went out of business (Read et al.). Mass unemployment ensued

and, today, feeds the majority of the migrant labour supply that comes to Canada each year (Read

et al.). As a country that benefitted from NAFTA, Canada has failed to respect its partnership with

Mexican people. Even if the influx of workers is an unintended consequence of the deal, not

enough is being done to mitigate the social cost imposed on the workers. They are employed in

labour-intensive, low-paying jobs that nobody wants. To keep them from staying in Canada, they

are barred from bringing in their wives and children and are forced to accept a 48-month absence

from Canada after four years of continuous service (Immigration and Refugee Protection Act).

They contribute the same amount of EI, CPP and income tax as permanent residents or Canadians

citizens yet they will never be accepted as part of Canada’s social fabric, despite their input into

the country’s economic health. Under these circumstances, the migrants absorb the costs of the

program while Canadians, and Canadian employers, reap the benefits of cheap, disposable labour.



16

The federal government has failed to balance the specific interests of key stakeholders, as

prescribed by the third element of the public interest formula.

Conclusion

Canada’s Temporary Foreign Worker Program and its subdivisions only service the ends

of a small minority of labour-intensive businesses in Canada. By privatizing the administration of

the program from the federal government, employers have turned the program for their best

interests rather than the best interests of the Canadian public. The TFWP, in the current form, does

not adequately meet any of the five elements in ensuring the program acts in the public interest. In

designing this program, very little consultation was made with unions, public interest groups and

foreign workers to identify how the program could balance the needs of businesses and the rights

of individuals. The program is not neutral anymore – instead pro-business – as it wilfully ignores

the consequences it has imposed on the migrants. The strong majority view of Canadians is that

the program should never replace the domestic labour market. Yet, as exposed by the CBC in 2013,

large corporations are shortchanging hardworking Canadians in favour of employing lower-cost

answers to their problems. Most importantly, the TFWP takes away the basic protections that

workers deserve in Canada. It disrupts the image of Canada as a beacon of light in the human rights

on the global stage as migrants continue to be racially abused, mistreated or denied access to their

rights as a result of the rules and regulations imposed by the program. They bear the greatest burden

of this program as insufficient oversight and responsibility is exercised on, and by, the employers.

Canada must do a better job in protecting them to protect the national interest.



17

The full-text release of the Trans-Pacific Partnership on 5 November 2015 contained

numerous changes for the TFWP going forward. As aforementioned, the Canadian government is

prohibited from “imposing or maintaining any numerical restriction related to temporary entry” of

skilled tradespeople. This harms the public interest; as Gill McGowan, president of the Alberta

Federation of Labour said, it will allow “an unlimited number of temporary foreign workers in

certain broad occupational categories…while bypassing all measures to protect Canadian jobs”

(Curry). The definition of skilled trades is not exactly clear; however, it does include electrical

trades and “other construction trades” which may encompass any number of possible professions.

It may end up, yet again, as another case where the onus is on the individual employer to

demonstrate that their foreign hires do work or craft that requires “skill”. Another section of the

trade pact eliminates the requirement of labour certification for “Professionals and Technicians’.

Currently, regulatory bodies such as the Ontario College of Trades must assess or train foreign or

out-of-province tradesmen that wish to work in the province, cumulating in an examination

(Curry). Without this standard, a greater risk of public safety emerges as tomorrow’s technicians

may not have the necessary degree of skill required to do their jobs properly for Canadians,

resulting in bad work or shoddy installations of equipment. The combined impact of these changes

will make it easier for foreign workers to enter the domestic labour market and, with lower

qualifications, intensify wage pressures on domestic jobs. Above all, it will magnify the current

loopholes in the program as more people will experience the challenge of being a ‘second -tier’

person in a first-world country.

Recommendations

This paper proposes three recommendations to shape the program to better meet the public interest:



18

1. Oversee the program through one government agency. This is similar to the creation of

a Bureau of Immigration and Market Research proposed under the Border Security,

Economic Opportunity, and Immigration Modernization Act of 2013 being debated in the

United States currently. One level of government – ideally at the federal level – will

monitor all foreign workers and establish uniform standards for the program across Canada.

Part of the current problem in the TFWP is the distribution of responsibilities across all

three levels of government. Each level takes on their part as prescribed by Section 91 and

92 (Division of Powers) of the Constitution, but none take responsibility for the systemic

problems of the program. For instance, the federal government ensures that workers’residences meet certain building and health codes when negotiating MOUs with other

governments; however, building inspections are done by municipal authorities and the

standards upheld vary greatly from one region to the next (Stastna). Workers are then left

with poor living quarters that aggravate their pre-existing frustrations with their employers.

Another instance happens at the crossroads of provincial-federal jurisdiction. In terms of

workplace safety, migrant workers in Ontario are covered by the Occupational Health and

Safety Act but are not protected in provinces such as Alberta (Stastna). The right to

unionization, furthermore, is guaranteed for workers in British Columbia and Quebec but

prohibited in Ontario (Stastna). The variation of conditions across the program can be

eliminated if all responsibilities are centralized by one federal agency. This agency can

take over all monitoring and standards to ensure that Canada’s promises in international

agreements can, and are, upheld in practice.



19

2. Issue sector-based work permits. This idea was proposed by Marie Carpentier and Carole

Fiset as part of the Human Rights and Youth Commission of Quebec’s investigation on

systemic discrimination in the province’s foreign worker program. Under the current

program, workers stand to lose their housing, insurance and right to work in Canada as

their work permits extend to one employer in one location. Inevitably, it succumbs them to

dirty and deplorable working conditions as they have no other places to go. Creating work

permits that enable them to migrate across the province gives them mobility rights as they

can explore the market for other employers, and prompt the government to scrutinize

employers with high turnover rates.

3. Guide the Interprovincial Standards Red Seal Program. To address (a) the concerns of

Canadians that they are losing their jobs to foreigners; and (b) the threat of foreign workers

in skilled trades under the Trans-Pacific Partnership Agreement, the federal government

should take a stronger role in promoting the Red Seal program. Since 1959, an apprentice

approved by the Red Seal is able and qualified to work in all of Canada’s 13 provinces and

territories without further examination. It facilitates movement of skilled trades between

regions of uneven development as tradespeople can easily move between provinces to

appease demand for their skills. In recent years, however, the federal government has

gradually shifted the task of labour force development downwards to the provinces,

weakening the Program over time (Valiani). Taking the leadership role in this initiative

once more would make it more difficult for employers to look abroad by making the

domestic workforce more competitive for open positions. This would also address the

public opinion that foreigners are stealing Canadian jobs from the hands of Canadians, and

helping the TFWP claim a stronger position as a program of public interest.



20

Works Cited

Carpentier, Marie, and Carole Fiset. Systemic Discrimination towards Migrant Workers:

Summary. Montre ́al, Que.: Commission Des Droits De La Personne Et Des Droits De LaJeunesse, 2011. Print.

Citizenship and Immigration Canada (2009). Facts and figures 2008 – Immigration overview: Permanent and temporary residents. Retrieved from the Citizenship and ImmigrationCanada websitehttp://www.cic.gc.ca/english/resources/statistics/facts2008/temporary/04.asp.

Curry, Bill. “TPP text raises concerns over regulation of temporary foreign workers.” The Globe

and Mail 6 Nov 2015. Web. 17 Nov 2015. Entrenching Exploitation: The Second Report of the Alberta Federation of Labour Temporary

Foreign Worker Advocate, Alberta Federation of Labour (AFL), April 2009.Fabien, Claude, "La rupture du contrat par volonté unilatérale en droit québécois" (2006) R.G.D.

85, 91.Flecker, Karl. Canada's Temporary Foreign Worker Program (TFWP) Model Program - or

Mistake? Ottawa, Ont.: Canadian Labour Congress, 2011. Print.Gaz Métropolitain (TDP), supra note 2, par. 67 cited in Gaz Métropolitain (CA), supra note 2,

par. 47. Profilage racial et discrimination systémique des jeunes racisés : Rapport deconsultation sur le profilage racial et ses conséquences, Eid, Paul, Magloire, Johanne, Me Michèle Turenne, 2011, p. 13-14.

Human Resources and Skills Development Canada, Citizenship and Immigration Canada,and Canada Border Services Agency. Evaluation of the Labour Market Opinion Streamsof the Temporary Foreign Worker Program. Final Report, 2012 [Ottawa]. Print.

Immigration and Refugee Protection Act, SC 2001, c. 27, s. 20 (hereinafter the "IRPA"); Immigration and Refugee Protection Regulations, SOR/2002-227 (Can. Gaz. II), s. 196and 199.

Pal, Leslie A., and Judith Maxwell. Assessing the Public Interest in the 21st Centurya Framework . Ottawa, Ont.: Canadian Policy Research Networks, 2004. Print.

Read, Jodi, Sarah Zell, and Lynne Fernandez. Migrant Voices: Stories of Agricultural MigrantWorkers in Manitoba. Winnipeg, Man.: Canadian Centre for Policy Alternatives,Manitoba Office, 2013. Print.

Stastna, Kazi. “Canada’s migrant farm worker system – what works and what’s lacking.”CBC News 8 Feb 2012. Web. 17 Nov 2015.

The Fight for Good Jobs. Ontario Federation of Labour (OFL), 2007. Print.Thomas, Derrick. Foreign nationals working temporarily in Canada. Statistics Canada.

8 June 2010.Tomlinson, Kathy. "McDonald's Foreign Worker Practices Face Growing Investigation."

CBC News 14 Apr. 2014. Web. 23 Sept. 2015.Valiani, Salimah. Analysis, Solidarity, Action – a Workers’ Perspective on the Increasing Use of

Migrant Labour in Canada. Social and Economic Policy Department, Canadian LabourCongress, 2007. Print.

http://www.cic.gc.ca/english/resources/statistics/facts2008/temporary/04.asp



Documents

Serving the Public Interest: Is the TFWP Good for Canada?