Reasonable Doubt: No easy answer to combat abuse of temporary foreign workers

Carmen Hamilton is one of the writers of Reasonable Doubt.

From the class-action suit launched by more than 70 temporary foreign workers (TFWs) employed by Denny’s to the case of the young African woman enslaved by a West Vancouver resident, accounts of abuse of TFWs by Canadian employers over the last few years have garnered significant media attention, signifying the need for increased protection of vulnerable foreign workers.

TFW regulations were passed to ensure that the wages, working conditions, and occupation of foreign workers reflect what was offered in the worker’s employment contract. Noncompliant employers risk being “blacklisted” from the TFW program.

While these regulations are a step toward curbing TFW abuse, law makers are still finding themselves between a rock and a hard place. The TFW program continues to be criticized for issuing work permits that are occupation, employer, and location-specific. One media report described these conditions as keeping such workers “tethered and powerless” and averse to reporting abuse by the employer for fear of losing their immigration status.

But there is another side to this story. TFWs are brought in to fill a labour shortage. Most often, an employer wishing to hire a TFW must obtain a labour market opinion from Service Canada. The employer must show it advertised the job posting and was unable to fill it from the local labour pool. For example, while there may not be enough workers to fill entry-level positions in northern British Columbia, there may be more than enough available applicants in Kelowna. This is why work permits are location and occupation specific: the TFW is meant to fill an identified labour gap in a specific area.

There are also costs associated with hiring a foreign worker. The employer is responsible for all recruitment costs, and the TFW’s airfare and temporary medical coverage. These costs may be particularly onerous for small employers—for instance, families hiring a caregiver. It is reasonable for law-abiding employers who undertake the cost and lengthy process to find a TFW to want some assurance that the employee will work for them for the duration of the work permit.

An open work permit would allow a TFW to work for any employer in any location, enabling TFWs to leave exploitative employers without fear of losing their immigration status. Arguably, however, this resolution is not necessarily in the best interest of the Canadian labour market.

TFWs may leave their employers for a reason other than abuse. A TFW is allowed to transfer their work permit to another employer as long as the new employer also obtains a positive labour market opinion.

Manuela Gruber Hersch of the Association of Caregiver and Nanny Agencies Canada says that caregivers are frequently “job-hopping” and leave their employers—usually working class families—to eat the recruitment costs. Gruber Hersch says: “It’s a nanny’s market. A caregiver will be hired by a family in Calgary, and after arriving will get a job in Toronto because she wants to be with her friends or family there. The family has spent maybe eight months getting this caregiver to Canada and then is left footing the cost of the caregiver’s airfare, which is a lot of money for the average family.”

Enforcing TFW regulations has also been problematic. Government agencies can review employer records to confirm compliance with the regulations, but will not see other abuses (such as unpaid overtime) based only on a review of the employer’s documents. Mistreatment rarely comes to light unless it is directly reported by the TFW.

Further complicating this problem is that the abuse often starts in the TFW’s home country. Unscrupulous recruiters abroad have been known to charge TFWs recruitment fees without the knowledge of the Canadian employer.

No TFW should be in a position where she or he is enduring abuse in the workplace for fear of losing his or her immigration status in Canada. Unfortunately, there’s no easy answer to the issue of protecting our TFWs while balancing the economic interests of Canada’s labour market. Open work permits for all TFWs is not realistic in light of the purpose of the TFW program. At present, the best course of action is to ensure TFWs arriving in Canada are aware of their legal rights, and are aware of how they can report abusive employers.

Carmen Hamilton is an immigration and civil litigation lawyer at Singleton Urquhart LLP. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.