Temporary Foreign Workers (“TFWs”) in BC perform critical work caring for children and the elderly, and helping businesses to grow, yet TFWs are a uniquely vulnerable workforce. Many TFWs come to Canada from the global south to support their families back home. The most recent statistics show that by the end of 2014, 21,755 TFWs held work permits for jobs in BC.1 This is the second highest number in Canada, after Alberta.
There are two streams of the Temporary Foreign Worker Program (“TFWP”) that include low wage jobs: the low-wage stream and the primary agriculture stream. Under the low wage stream, workers are brought to Canada by employers to fill labour market shortages in the hospitality, restaurant, food processing, construction, and caregiving sectors. Under the primary agriculture stream, TFWs perform work in primary agriculture. This stream includes the Seasonal Agricultural Worker Program (“SAWP”) under which workers can work for periods of up to 8 months.
We have seen the number of temporary migrant workers increase significantly since 2000. Workers in low wage jobs face unique vulnerabilities to exploitation by recruiters and employers due to the structures of the TFWP, as well as significant challenges asserting their basic employment rights in BC.
Concurrent to the expansion of the TFWP in Canada, there has been a substantial growth in third party, for-profit employment agencies. Specifically, employment agencies, regulated at the provincial level, charge illegal recruitment fees to TFWs for information and job placement in BC.
In order apply for a work permit to come to Canada under the TFWP, TFWs must secure a job offer and employment contract with a Canadian employer. To be matched with an employer, migrant workers commonly utilize the services of third party recruiters with the result that recruiters are positioned as the gatekeepers of the low-wage stream TFW employment in BC.
TFWs are routinely charged exorbitant fees, which typically range from $5,000 to $12,000, for jobs contrary to the Employment Standards Act. To pay recruitment fees, workers borrow money from moneylenders at high interest rates with the result that they are indebted upon entry to Canada and susceptible to debt bondage. Despite laws prohibiting employment agencies from charging recruitment fees, the problem remains that there is inadequate oversight and enforcement. Even though these fees are illegal, they can be difficult to recoup in BC if they were paid to a partner recruiter overseas. If paid to a BC-based employment agent, the six-month limitation period to file a complaint with the Employment Standards Branch is a significant barrier.
Misrepresentation by recruiters and employers
In addition to exorbitant fees, recruiters often subject TFWs to a fraudulent practice known as “release upon arrival”. In this situation, TFWs are promised a job and receive an employment contract from the employer; however, when they arrive in Canada the job does not exist. Other TFWs may find that their job differs from what is stated in their work permit, or that the work type, wages, conditions, hours, or length of employment are not what they initially agreed to.
These recruitment practices are especially egregious because of the workers’ already precarious immigration status. TFWs are not free to simply change employers because their work permit and immigration status are tied to a specific employer. Moreover, TFWs face multiple barriers to obtaining alternative employment, such as finding an employer who is willing to pay for and obtain a Labour Market Impact Assessment, lengthy processing times for obtaining a work visa, barriers to obtaining employment insurance and a lack of access to social services. Left in these precarious situations, often with high debts to repay, TFWs are often pushed by recruiters into unauthorized work which jeopardizes their status in Canada and increases their vulnerability.
Difficulty Enforcing Rights
The combination of high debt, low pay, precarious and temporary immigration status, and tied work permits make migrant workers vulnerable to exploitation and abuse by employers and recruiters. TFWs fear the very real repercussions of being fired by their employer and deported if they assert their rights or complain about poor treatment or work conditions. A TFW working in the Lower Mainland in the SAWP voiced this concern:
“[W]e are mute because the temporary foreign worker programs are taking our voices away...We accept insult, discrimination and everything without saying a word. If we do, the next year we won’t be back to work in Canada.”
A Kelowna-based TFW shared the following: “[W]e are deaf because we were told that we will have the same right than Canadians and we believe those lies.”
Although TFWs come to Canada through federal immigration programs, their employment in BC is governed by provincial employment standards legislation and regulations. As it stands, gaps in BC’s employment standards legislation and regulations enable recruiters and employers of TFWs to act with impunity.
The Employment Standards Branch’s complaint-driven model is detrimental to the enforcement of the rights of TFWs. The lack of proactive enforcement as well as the six-month limitation period to file a complaint do not effectively protect vulnerable temporary foreign workers or assist them to enforce their rights. When TFWs arrive in BC, they are not provided with information about labour standards, nor are they informed about any services that are available to them. Settlement services for TFWs are limited and do not facilitate access to justice for TFWs. There are no legal advocacy services funded by the province for TFWs to access help with filing employment standards complaints or information about their rights.
Six provinces - Saskatchewan, Nova Scotia, New Brunswick, Ontario, Manitoba, and Alberta - have implemented legislation to better protect migrant workers, including enhanced regulation of employment agents who recruit TFWs and proactive enforcement.6 Despite bringing in the second highest number of TFWs, BC continues to lag behind.
Strong labour rights and protections for migrant workers reduces their vulnerability by facilitating safe and legal recruitment, and effective enforcement of workplace rights in BC. They also serve as a disincentive for unscrupulous recruiters and employers to continue to exploit workers.
It is time for BC to enact new legislation and policy in line with domestic and international best practice models that include robust and proactive regulation, monitoring, and enforcement to eliminate illegal, fraudulent, and exploitative recruitment practices and hold recruiters and employers accountable for their actions.
1) No Recruitment Fees
It is illegal to charge a worker a fee for work in B.C. Yet, TFWs almost always pay thousands of dollars to work in B.C. and face barriers to recovering these fees after they arrive. B.C. should take steps to stop recruiters and employers from charging unlawful fees and to help workers to recover these fees more easily.
Require recruitment agencies to be licensed in BC and to provide financial security at the time of licensing with the Employment Standards Branch, and allow workers to recover fees from the security;
Hold employers liable for repayment of fees to workers where the employer has used or required the worker to use an unlicensed recruiter or immigration consultant and provide that employers are vicariously liable for actions of their agents;
Extend the limitation period for recovery of recruitment fees and other rights violations to 3 years.
2) Proactive Enforcement
Effective enforcement is necessary to make rights meaningful for workers. The existing system for enforcement of rights is inadequate because it depends upon workers making complaints against recruiters and employers despite barriers that prevent workers from making such complaints. B.C. should create a proactive system so that workers do not bear the burden of bringing forward complaints in order to uphold their rights.
Require recruiters to disclose to the Director names and addresses of partners, affiliates or agents operating inside or outside of the province and hold recruiters liable for their actions;
Require employers to register and provide pertinent information to the Director before hiring migrant workers;
Implement a proactive enforcement regime that would allow for investigations of workplaces and housing as well as anonymous and third party complaints; and
Increase penalties for recruiters and employers who violate the prohibitions against charging recruitment fees, misrepresenting availability or conditions of employment, and other provisions of the legislation. Penalties should align with those in other provinces, such as Saskatchewan.
3) Access to Information and Advocacy
Laws that protect migrant workers in B.C. will not be effective unless workers know and understand their rights. Yet, migrant workers are often unaware of their rights due to lack of information, language barriers, isolation and insufficient services. B.C. should take steps to facilitate migrant workers’ access to information about their rights in order to prevent abuse.
Require employers to facilitate access to free orientation sessions for workers about their rights within 3 months of arrival in B.C. Sessions should be delivered in the worker’s first language and at the employer’s cost; and
Establish and fund independent migrant worker advisory offices to help with filing complaints and provide services and access to other resources, including a 24-hour information and help line for migrant workers.