Canadian Labour Congress Response to the June 8, 2013 Proposed Regulatory Changes Amending the Immigration and Refugee Act as it Relates to the Temporary Foreign Worker Program COPE*225
Introductory comments Canada s Temporary Foreign Worker Program (TFWP) is seriously broken. The proposed regulatory changes do not go far enough to address the TFWP shortcomings. The programs have grown to epic proportions with no meaningful oversight or authentic measures to hold employers, labour brokers or immigration consultants accountable. The program is serving as a wage suppression and displacement tool, negatively affecting both migrant workers and members of the national workforce. The Canadian Labour Congress (CLC) recently released research analysis drawn from the Statistics Canada's Labour Force Survey and from Citizenship and Immigration Canada data shows roughly 75% of the new jobs created in Canada in 2010 and 2011 were filled by employers accessing temporary work permits despite 1.4 million Canadian residents being unemployed. Clearly, the national workforce is being displaced from available job opportunities. Planned government reforms, announced at the end of April intended to address flaws inherent with the TFWP, will not be adequate nor genuinely address the scope of the problems associated with granting of temporary work permits to employers, labour brokers or immigration consultants. The federal governments unchecked expansion of the TFWP into all sectors of the labour force particularly in what are termed the low-skilled occupational categories National Occupational Classifications (NOC), Codes C &D is enabling employers to pursue a low wage agenda and displacement strategy that negatively affect the labour force and our economic recovery. In addition, and for too long, far too many temporary migrant workers have been subject to a wide array of abuses, inadequate workplace protections and exploitation at the hands of labour brokers and employers eager to take advantage of an unchecked system. The situation is untenable for all workers, no matter where they come from. Comprehensive and dramatic policy change is needed immediately. The CLC calls for an immediate end to the growth and abuses within the TFWP and related pipelines that are displacing workers and enabling a low wage agenda that benefits employers and hurts communities and workers-no matter where they come from. We acknowledge there will be situations of skills shortages; however, we must have a transparent and objective method in place to verify the need to issue temporary work permits. Proven methodologies exist and have been applied to the Canadian labour market in the past they must be utilized now. Given demographic trends of an aging population/declining birth rates and global competition for newcomers, we call for an urgent transition toward enhanced annual intake of immigrants (i.e. 400,000/year) and more robust pathways for migrant workers to obtain permanent resident status rather than maintaining temporary migration schemes. Given that over 1 million Canadians are currently unemployed and more than 3 million are underemployed, it is evident that employers claims that so-called low-skilled 1
workers (NOC, Codes C & D) are in short supply is unjustified. The TFWP has tripled in size over a short period with employers returning year after year and in increasing number. The largest increases have been in the low-skilled occupations sectors where workers have the least protections and lowest wages. The addictive and repetitive pattern of employers accessing the TFWP/low-skills programs indicates these are not temporary jobs. We call for the end of employers access for temporary work permits in the low- skills categories (NOC, Codes C & D), excluding the Seasonal Agricultural Workers Program (SAWP) and Live-In Caregiver Program (LCP). The phase-out of this program must begin immediately. At the same time, we are demanding the government expand pathways to permanent resident status for migrant workers currently in these streams. We recognize that migrant workers in the SAWP and the LCP are categorized as low-skilled under the NOC system and that there are valid reasons to challenge the classification of caregiving, for example: as being low-skilled. Both of these temporary migration streams within the TFWP have a long history and persistent problems. For example, seasonal agricultural workers are tied to one employer; denied a pathway to permanent resident status despite annually returning to Canada, in some cases for decades; and in most cases, denied the right to unionize. Reforms are required to this stream, including reinstatement of access to social service provisions which these workers pay for. In addition, seasonal agricultural workers must be provided the option of a path to permanent resident status. Live-in caregivers are required to live in their employer s residence for the term of their contracts subjecting them to workplace exploitation and sexual abuses. The proposed regulatory changes do not address this long standing policy shortcoming. Rather than persist in requiring a live-in residence obligation for live-in caregivers, we recommend the regulations be amended to allow live-in caregivers to live independently of the employer s residence with accommodation support being provided by the employer as part of the employment contract. While there is a pathway to permanent resident status, under this program it is not a fair or just route. These workers are also prevented from taking educational training and development opportunities. This too is unjust. Fundamental and far reaching changes are overdue for both of these program streams; hence, we demand that a meaningful consultation process with stakeholders be established that will lead to the implementation of requisite changes. Summary Labour and our allies are demanding comprehensive policy change in three-key areas. 1. The entire TFWP must be immediately scaled back in scope and there must be an end to employers access to low-skilled occupations streams (NOC, C&D), excluding the 2
SAWP and LIC. Strong new eligibility requirements for employers seeking temporary work permits must be established and accountability and punitive measures to address violations must be strengthened. A meaningful consultation process must be established that will lead to the implementation of needed and wide-ranging reforms. 2. Comprehensive investments are needed immediately in job training and apprenticeship programs. 3. Return to a robust national policy of permanent immigration that contributes to nation building. The attached chart details additional and specific policy changes we are seeking. 3
TFWP Eligibility & Program Criterion Reforms Job Training & Apprenticeship Strategy National Building TFWP access will be limited to specific sectors proven to have verifiable skills shortages. End employers access to low-skilled occupations streams (NOC, C&D), excluding the SAWP and LCP. Shortages are only valid when employment growth is at least 50% greater than average; unemployment rates at or near historically low levels; wage growth must be 30% greater than average. The term of work permit will be temporary and limited, i.e. six months. Extensions will also be limited and linked to transitions plans to utilize members of the national workforce and or ensure migrant workers have access to PR status if national workforce cannot meet proven shortages. Meaningful consultation with all stakeholders is required prior to any Labour Market Opinion (LMO) being issued. No employer, broker or immigration consultant temporary foreign worker application will be accepted without a strategy for direct job creation or job retention for Canadian citizens or permanent residents. Advancing a national labour force training and development strategy that will utilize the over one million unemployed and the more than three million underemployed. Rigorous application of the LMO process including holding employers accountable via semi- annual assessments of their efforts in "direct job creation or job retention for Canadian citizens or permanent residents" as currently dictated by the Immigration and Refugee Protection Act (IRPA) regulations. Expand Red Seal certification. Institute a 1% payroll tax for training. Allow all trade unions to participate in a Training Trust Fund including access to apprentices. Provide a transparent and accessible pathway to permanent resident status for all TFWP streams following a six-month work period in Canada. Increases the annual intake planning numbers across the three immigration pathways economic, family, and humanitarian. Objective by 2014 to minimally reach 1% of Canadian population and adjust in accordance with demographic population trends with assessments every three years. Close loopholes that exist for LMO exempt pathways that encourage offshoring and worker displacement. Provide labour mobility incentives and support for workers to relocate to areas with labour/skills demands. Commit to comprehensive measures to recognize international credentials acquired by newcomers so their knowledge, skills, and ability can be better utilized within the national labour market at an accelerated pace. Hard caps on the number of LMO applications in all TFWP approved occupational sectors will be established. Caps to be determined alongside the implementation of the 2009 Advisory Panel on Labour Market Information report headed by Require set number of apprentices on large scale construction work sites, i.e. oil sands. Invest in income supports, bursaries, student Expand the newly created pathway in the Federal Skilled Worker Program (FSWP) for skilled trade newcomers; include streams for low-skilled occupations for situations of proven labour/skills 4
TFWP Eligibility & Program Criterion Reforms Job Training & Apprenticeship Strategy National Building Don Drummond. Public disclosure of those seeking temporary work permits including job site locations and occupations. Disclosure of all approved temporary work permits and job locations (including ICT and related pipelines). Disband the TFWP Employer Advisory Group that has preferential influence with the government. Adequate resources are made available to ensure comprehensive compliance, monitoring and enforcement measures. Provide sector specific open work permits. Adopt full cost recovery charges plus human replenishment privilege fees for those seeking temporary work permits. assistance to address barriers to apprenticeship training. Focus on equity-seeking workers. Legislate employers who hire skilled trades people to take on apprentices. Establish labour mobility support initiatives. shortages. Migrant workers within the country who have six months work experience be given standing in this line. Enable migrant workers the right to sponsor immediate family members to Canada. Restore budgets for training and apprenticeship programs with a focus on women and designated equity-seeking groups. Commit to a rights based approach to labour migration by ratifying international conventions relevant to migrant workers protections. This includes Convention 189, Migrant Workers Conventions 97 and 143, the Private Employment Agencies Convention 181... De-link the regressive EI rules from the TFWP. Establish federal/provincial enforcement teams that utilize the inputs of stakeholders. Establish an independent Migrant Worker Commission as detailed by the CLC to provide regulatory oversight of the TFWP. 5
TFWP Eligibility & Program Criterion Reforms Job Training & Apprenticeship Strategy National Building 6
Comments on the proposed regulatory amendments It is noteworthy that the impact statement accompanying the proposed regulatory changes acknowledges the TFWP was designed to contribute to Canada s economic development by allowing employers to hire foreign workers to meet their short-term labour and skills needs only when qualified Canadian citizens or permanent residents are not readily available. This mandate is reiterated a number of times in the background paper. For example, the backgrounder also states, When labour shortages are acute, the TFWP should be a last resort for businesses so they can continue to grow and create more opportunities for Canadians. There is abundant evidence that with the rapid expansion of the TFWP since 2006 these criterions (see bolded sections) have not been upheld in a rigorous manner. Royal Bank of Canada/iGATE being granted temporary work permits for over forty workers who were being trained by workers already employed and who would have been displaced, stand as one prominent example. There is good reason to believe that this is not an isolated incident. Media reports have revealed that a number of the big banks have been maintaining this practice for some time. The release of a 475 page document obtained by the Alberta Federation of Labour documenting thousands of employers who successfully obtained Accelerated Labour Market Opinions (ALMO) and temporary work permits for high-skilled workers to staff convenience stores, fast food restaurants and gas stations raises questions as to the integrity of the program rules are being followed. In addition, the Globe and Mail revealed that over 33,000 employers had successfully applied for LMO s in the period from 2010-2012. A review of the employers listed in this data set adds yet more doubt to the integrity of the TFWP. Longstanding problems The federal government has long been advised of shortcomings with the TFWP. The government itself acknowledged it did not have sufficient legislative authority to provide compliance, monitoring or enforcement measures as far back as 2009. At that time, the government published in the Canada Gazette a set of proposed IRPA regulatory changes and acknowledged currently no provisions exist in the Regulations to hold employers accountable for their actions regarding TWF s. 1 The Auditor-General s report of the same year and presented to Parliament in the fall of 2009 also made this long standing shortcoming blatantly apparent. there has been no systematic follow-up by either CIC or HRSDC to verify that employers are complying with the terms and conditions under which the LMO application was approved, such as wages to be paid and accommodations to be provided (Auditor General s report to Parliament 2009). Despite this awareness in the intervening years, little has changed in this regard. 1 Canada Gazette October 10, 2009, Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers). See 3052, Canada Gazette Part 1. 7
Missed opportunities: Incorporating international instruments into regulatory policy at home The government claims to be interested in strengthening the program to ensure employers are seeking to fill only short term skills and labour needs only when Canadians or permanent residents are not available, while also wanting to strengthen the CIC and HRSDC authority to monitor employer compliance. Yet, nowhere in the proposed regulatory changes does this government demonstrate any commitment to ratify and implement a number of international instruments that can aide in meeting these standards. For example, there is no mention of the government of Canada seeking to ratify ILO Convention 189, the Domestic Workers Convention which would specifically aide in ensuring employers are seeking migrant labour for only shortterm needs and would lend great authority for compliance measures. More than a dozen countries have already ratified this Convention yet Canada remains silent on its intentions to follow suit. In addition, the following international instruments have been formulated that define a human rights and labour standards framework regarding migrant workers. The first four instruments are ILO Conventions. The Migration for Employment Convention (Revised), 1949 (No. 97) The Migration for Employment Recommendation (Revised) 1949 (No. 86) The Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) The Migrant Workers Recommendation, 1975 (No 151) The 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. (ICRMW) The 1990 (ICRMW) constitutes the broadest policy framework rooted in international law and provides guidance for countries on how to develop labour migration policies that respect the rights of migrants. It incorporates the full range of fundamental human rights civil and political as well as economic, social and cultural rights. One of the key innovations of the Convention is that for the first time minimum standards are explicitly guaranteed for undocumented migrant workers. Because Canada s TFWP does not have an exit strategy, it is likely a significant number of migrant workers do not return to their home country when their work permit expires and slip into an undocumented status. As a result, these individuals are living in extremely vulnerable circumstances. These regulations make no effort to address this reality which accompanies temporary migration programs. If these international instruments were fully implemented, here are some benefits migrant workers and their families would receive: Basic rights and freedoms would be upheld. Due process for all migrant workers and members of their families would be ensured. Right of consular protection. Equality alongside national workers. Prohibition of confiscation of identity documents. Right to transfer of earnings. Right to information and protection from misinformation. Respect for cultural identity. 8
Obligation to comply with local laws. The benefit of these aforementioned instruments has been summarized (ILO 2010) under three fundamental concepts: 1. Universal human rights and core labour rights apply to all migrants, regardless of their status. 2. There should be equality of treatment and non-discrimination between migrant workers regularly admitted and native workers in the realm of employment and work. 3. The broad array of international standards providing protection in treatment and conditions at work employment, labour inspection, occupational health and safety, working hours, wage protection, social security and maternity to name a few key areas, applies to all migrant workers no matter the economic sector in which they work. In addition to advancing policy consistency with temporary work migration and compliance, these international tools would demonstrate a commitment to a rights based approach to labour migration. Tellingly, the proposed amendments are silent on embracing any of these longstanding international policy instruments. Ignoring stakeholders The government has failed to recognize the value other stakeholders such as the labour movement bring to improving the TFWP. The background paper points out the TFWP is driven by employer demand. As part of its Economic Action Plan agenda, the government is myopically limiting itself to Work(ing) with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs. There is no reference in neither the background paper nor the proposed regulatory changes to consider the insights and on the ground experience that other stakeholders (i.e. unions, workers associations and/or training institutions) provide in determining if members of the national workforce are in fact available to fill jobs. Authentic stakeholder consultations require a transparent process that will genuinely listen to concerns, criticisms and proposed policy remedies from parties that have a vested interest in government policy. This has not been the case with the cross Canada consultations that have taken place in late May/early June, rather they have been skewed to hear selectively from the business community. This is evident from the background paper which only cites concerns about the TFWP from this group. Furthermore; the national consultations process, following the April 28, 2013 government announcement of proposed TFWP reforms, lacked integrity and was deeply flawed. For example: 9
They have taken place with exceedingly short notice, i.e. 48 hours. There is no schedule posted on the HRSDC website of the consultations dates or locations. The select invitation list has been heavily skewed to over-represent the business community. The discussion time is woefully inadequate. Based on the reports from those who have attended, the Chair MPP Kelly Leitch, was unwilling to hear criticisms of the TFWP and cut individuals off from voicing both their critique and policy remedies. At the June 13 consultation held in Toronto, the Chair stated she had already met with the CLC, when in fact no such meeting or exchange had taken place. Verification measures: better options exist Granting search and seizure powers of documents from employers utilizing the TFWP without a warrant is a dramatic gesture. It is unclear how the government plans to effectively implement such powers with a diminished civil service following the drastic cuts made in the 2012 budget. At the same time, there is no evidence in the proposed regulatory changes to scale back the program or establish caps which would aide in monitoring, compliance and verification measures consistent with governmental capacity. As we have stated, ending the ability of employers, labour broker or immigration consultants to access the TFWP for low-skilled occupations would additionally serve as a strong regulatory measure and dramatically reduce the overall number of temporary work permits being issued. A critical omission in these proposed regulatory amendments is the introduction of a transparent and objective methodology to assess if shortages are genuine. The CLC recommends this gap be addressed by applying a system used by the U.S. Department of Labour Statistics that looks at three factors within occupational groups thought to be short supply employment growth, wage growth and unemployment levels. To be considered an occupation that is experiencing shortages, employment growth must be at least 50% greater than average; the unemployment rate must be at or near historically low levels, and wage growth must be at least 30% greater than average. The Canadian government s HRSDC Strategic Planning Unit which did detail ten year forecast of the Canadian labour market applied this methodology to the Canadian labour market in 2005. 2 Not only is the methodology proven, it provides an accurate and transparent verification of shortages. Regulatory amendments that would put in place such methodologies would yield fewer applications for temporary work permits and provide a better front end verification process. 2 (Human Resources and Social Development Canada. October, 2006. Looking Ahead: A 10-Year Outlook for the Canadian Labour Market (2006-2015). http:/www.hrsdc.gc.ca/en/publications_resources/research/categories/labour_market_e/sp_615_10_06/page00.shtml 10
License and regulate labour brokers Regulatory changes that would require the licensing of labour brokers, employers and immigration consultants would assist in verification and compliance measures. A number of provinces have made important legislative strides in this area, namely Manitoba and Saskatchewan. The CLC is calling regulatory measures that will contribute to the establishment of national policy framework to regulate and licence all labour broker/recruiters, employers and immigration consultants who plan to use the TFWP. Regulating labour brokers is often achieved by establishing specific agencies or mandating existing government departments, with the power and resources to ensure employer s and brokers compliance with licensing regimes. A variety of policy measures from different countries serves as examples of what could be done in Canada on a national basis. Some of the better policies and practices include: Prohibitions by countries of origin on the recruitment of their nationals by persons or entities other than those licensed by the state. Requiring licensees to be resident nationals as well as members of recognized associations of immigration consultants or members in good standing with the legal profession. This requirement allows for licensees to be held accountable for recruitment violations. Requiring licensees to put up significant financial guarantees for claims that may be brought against them for labour standards or employment contract violations. Requiring licensees to have a good record of compliance to national and sub-national labour standards. Obligating recruiting agencies to bring job seeking that have employment contracts to attend pre-departure orientations authorized by governments. Some countries, such as the Philippines, make continuation of the license contingent on performance. Enacting legislation that limits or ban fees that can be legally charged to migrant workers. Generally, any such fees are differentiated by occupational categories and/or obligate the employer to pay the fee. Diminishing democracy: Shifting toward greater ministerial powers and influence Regulatory changes to Section 203 of the IRPA regulations propose to substitute the role of the department of HRSDC for the Minister of HRSDC. This change is anti-democratic and unnecessarily shifts authority away from civil servants to a Minister. This change is inappropriate to a parliamentary democracy. The change would enable a Minister considerable discretion which can unduly influence the outcome of an LMO application. Enabling the governing party to set parameters for the issuance of an LMO based on the opinion provided by the Minister, without the checks and balance of 11
internal civil servant process and without the benefit of parliamentary debate is anti-democratic and weakens accountability. Public comments made by Minister Jason Kenney in 2008 regarding a case of migrant workers who had filed a human rights complaint against their employer for wage discrimination serves as a relevant example of what can go wrong when democratic checks and balances are removed. Known as the SELI case, the Minister at the time issued a press release disagreeing with the findings of British Columbia s Human Rights Tribunal. Not only was this inappropriate as the case was in front of the Supreme Court of B.C., but the Ministers comments were wrongfully informed. The case proceeded through litigation and just this past year, was finally settled in favour of the migrant workers. Labour migration is inevitable and a protected right under the United Nations Charter of Rights (Article 13 and 23). Scaling back the size and scope of the TFWP via limiting its availability to employers for high-skilled occupations that have verifiable shortages would provide policy balance between inevitability and rights protections. Additionally, there is need for an independent regulatory body with enforcement powers that can address the complexities inherent with labour migration. The CLC is calling for establishment of a Migrant Workers Commission. Such a commission must be independent and resourced with a high degree of political integrity and technical competencies. It must have the ability to manage and adjust policy and operating systems of the full suite of Canadian TFWP categories. (i.e. Live-in Caregiver Program; Seasonal Agricultural Worker Program, Low-Skilled Pilot, International Experience Canada initiative, etc.) The Commission should be adequately staffed with demographers, economists, human rights and labour rights experts, migration/immigration and settlement policy experts. The Commission should regularly draw on inputs from employers, migrant worker organizations, organized labour, migrant workers, and all relevant government representatives (federal, provincial/territorial and municipal) via regular and structured forums. The Commission s mandate must include the responsibility to develop transparent, objective analytical methods that can determine and verify the existence of occupationally specific shortages of nationally based workers. This Commission must also be responsible to develop transparent methodologies for determining the prevailing wage and benefit rates for all classes of migrant workers. This must be done in concert with initiatives to improve Canada s labour market information systems. Because the admission of large numbers of migrant workers reduces pressure to upgrade and train the domestic workforce, such a Commission must also be able to contribute to policies connected to ensuring adequate workforce development, including education and training. The Commission would also need to work in concert with other governmental departments tasked with engaging the under and unemployed of the labour force. In addition, the CLC believes the Commission must be able to put in place program mechanisms to apply levies on employers using the migrant workers to ensure: 12
That employer s have first fully exhausted efforts to employ workers from the national labour force. Employers utilize mechanization or re-structure their operations, where possible, rather than relying on persistent use of migrant labour pools. The human replenishment costs facing sending countries that have educated and trained workers who migrate, is at least partially redressed. Funding revenues for enforcement and integration mechanisms are born by employers rather than governments. Establishing a Migrant Worker Commission won t solve all the problems with Canada s migrant worker program, but it will address a major policy gap particularly the vacuity of policies related to compliance, monitoring and enforcement functions. * * * KF:ch:cope*225 2013-06-20 13