Protecting temporary foreign workers
The Immigration Law Section offers ways to improve regulations to protect vulnerable workers while in Canada.
When the treatment of temporary foreign workers, or TFWs, makes the news it’s more often than not for the wrong reasons. The Immigration Law Section of the Canadian Bar Association, in a letter to Immigration, Refugees and Citizenship Canada and Employment and Social Development Canada, says it is pleased that regulations are proposed to better protect these vulnerable workers while they are in Canada. It offers a few comments and suggestions to make those protections even stronger.
Information on the rights of workers
A requirement that employers give all TFWs hard copies of information detailing their rights as well as emergency and health coverage is a good idea. “We suggest having hard copies available in several languages other than English and French so that the information reaches TFWs who are not proficient in one of Canada’s official languages and may not have access to the internet.”
Some TFWs do not work regularly in only one workplace and in those cases, the Section says, IRCC and ESDC should clarify whether that information can be provided electronically since posting it in one central location may not reach them.
Employers attesting to the practices of recruitment agencies
It can be a challenge for employers using the International Mobility Program, or IMP, to attest that recruitment agencies didn’t collect or recover fees in relation to a labour market impact assessment. The Section wonders if ESDC will be in a position to hold employers accountable in cases where third-party agencies didn’t provide accurate information about their processes. “This is especially concerning as the proposed changes to the regulations also grant IRCC and ESDC power to compel third parties to provide supporting documentation during a compliance investigation,” it says. In addition, the Section recommends IRCC and ESDC provide clearer guidance on what constitutes reasonable effort by employers to ensure agencies don’t collect fees from TFWs illegally. Perhaps the government should consider regulating and licensing those agencies.
The Section says requiring written employment agreements is not consistent with employment law requirements which say agreements can be written, oral or hybrid. Requiring signed agreements is not practical for some permit applications, the Section notes, especially intracompany transfers and short-term positions. “For cases where obtaining a signed agreement is not practical, we recommend that employers be required to outline the terms of the employment relationship in writing whether it is signed or not,” the letter reads.
Requiring employers to ensure TFWs have medical coverage until they are eligible for provincial or territorial health care is a welcome development, the Section notes, before expressing the hope that this new requirement won’t deter employers from using programs such as the Seasonal Agricultural Worker Program.
Accessing health services for temporary foreign workers who do not have a fixed place of employment may be difficult. In these cases, the Section recommends the government clarify what is expected of employers when it says they must “make reasonable efforts to provide access to health care services.”
Protecting workers from abuse
Employers should not pass on recruitment fees and costs to TFWs, and many provinces have enacted laws to that effect, including British Columbia, Manitoba and Saskatchewan. The CBA Section believes the proposed amendments will align federal rules with these provinces.
It also recommends amending section 207.1 of the regulations to make it easier for TFWs who faced abuse to get open work permits without requiring them to maintain valid temporary resident status as a worker. “This requirement is unfair to applicants who may have fallen out of status through no fault of their own. The loss of status would aggravate the predicament of these vulnerable TFWs who have suffered workplace abuse, which is inconsistent with the spirit of the changes proposed by IRCC and ESDC,” the letter says.