TEMPORARY FOREIGN WORKERS, PERMANENT RIGHTS?

Brown Bag SessionApril 02, 2009

Delphine Nakache

Faculty of Law, University of Alberta

dnakache@law.ualberta.ca

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THE CONTEXT…

Flaws in the Federal Skilled Worker Program (FSWP)

Labour shortage not only in highly-skilled occupations

Backlog: 2007- 585,000 & waiting times up to 6 years

Mismatch with immigrant’s education & experience

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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

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TFWS IN CANADA Statistics:

◦ 2007: 115,470 newly arrived TFWs in Canada, a 47 per cent increase since 1997

◦ Increase most pronounced in Alberta 2007: 37, 257 temporary workers, a 350 per cent increase in

four years 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

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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

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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.

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ENTRY AND STAY OF ALL TFWS INTO CANADA (cont.)

Work permits under the TFWP tie each TFW to a single employer, but individual conditions on work permit vary (ss. 183 &185 of IRPR)

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. 2008 :

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:◦ No guarantee of re-entry◦ Possible deportation from the United States

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TFWP & low-skilled workers

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

Low skill pilot project – 2002◦ Employers have some obligations to low-skilled workers - But

no follow up on these conditions◦ 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

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ACCESS TO PR FOR LOW-SKILLED WORKERS UNDER THE TFWP

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

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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)

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ACCESS TO PR - problemsIndividuals as workers, but not as

full members of the society. Differential legal treatment

between highly-skilled and low-skilled TFWs

Any temporary migration policy leads to pressures for permanent settlement

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TFWS UNDER THE TFWP -other issues-

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)

Recruitment fees - 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,

1 2009)◦ Applicable in Alberta? 

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LEGAL PROTECTIONS IN THE WORKPLACE ENVIRONMENT

Minimal statutory safeguards are available to TFWs but they can’t access them in practice

Employment insurance (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

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LEGAL PROTECTIONS IN THE WORKPLACE ENVIRONMENT (cont.)

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.

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LEGAL PROTECTIONS IN THE WORKPLACE ENVIRONMENT (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

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CONCLUSIONFor 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