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Canada’s laws fuel migrant worker exploitation: Report

Image: www.cbc.ca

According to a published report titled “Made in Canada: How the Law Constructs Migrant Workers’ Insecurity”by the Metcalf Foundation, Canada’s reliance on low-wage migrant workers with temporary immigration status is growing but the employment and labour laws of the country make them vulnerable to abuse.

The report looks at how current federal and provincial laws and policies create and facilitate conditions of insecurity that produce an ever more precarious, contingent, and “disposable” migrant workforce. It proposes a framework to assess migrant workers’ treatment in law. And it proposes options for systemic change to increase migrant workers’ security.

According to the author, Fay Faraday, a lawyer and adjunct professor at Osgoode Hall Law School “This is a made-in-Canada problem.”

The report demonstrate that the number of temporary foreign workers in Canada has more than tripled in the past decade (from 24,139 in 2000 to 300,111 in 2011). They are concentrated in Ontario and mostly work as live-in caregivers; as agricultural workers; and in sectors such as hotels, restaurants, food processing, and construction.

These workers are frequently underpaid, overworked and denied basic rights such as decent housing, and health and safety.

“At each stage in the labour migration cycle, migrant workers face insecurity that is either created through law or sustained because the law fails to prevent practices that are known to undermine workers’ security and capacity to enforce their rights,” said the report

To illustrate, the report provides personal profiles of three migrant workers in the Toronto area. They tell the story of their experiences in their own words. Here is one of them,

Lilliane’s Story

I came to Canada from Uganda to work as a live-in caregiver. Back home, when you work for a family, you make no money. You make the food, feed the family, feed the children but you don’t eat with the family. You are discriminated against.
So when I was asked me to come and work in Canada I got so excited for the chance for something better. Unfortunately, when I came it was not what I expected. My employer treated me just like back home.

I arrived in March 2008 and started work the very next day. I was very tired because of the long flight and the change in time, but my employer woke me up early in the morning and told me “You cannot be sleeping like that. You came to work.” When I arrived, my employer took my work permit and passport because
she said they belonged to her.

I looked after two small children. I did not have my own bedroom. I shared a room with the youngest child. His crib was in my room. I had no private space. I was not allowed to have visitors in the house. The only people I was close to were the children. I loved those children. You have a strong bond with them. But it is so
hard when you have no adults who you are close to.

Even though my contract said that I was only to work around 45 hours per week, I had to work from before 8 a.m. until around 11 p.m. after the children were asleep. I was told my attention must always be on the children. I did not have a day off. I had to ask permission even to go to the hairdresser to braid my hair. And
when I went to the hairdresser my employer told me I was not allowed to be out of the house on my own and that she would call Immigration and Immigration would give me two weeks’ notice to leave. I was treated like rubbish but my employer knew I had nowhere else to go.

I came to Canada to work and I was working hard but I wasn’t getting paid. I was paid $100 in cash per month even though my contract said I was to be paid much more. When my mother got sick and I needed to send money home to help pay for her medication, I asked my employer for more money but she said no. She told me I was earning more money than I would if I was working back home. She told me that I was never to tell anyone how much they were paying me. For two years of work, I was only paid a total of $2,100. I often thought of my mother and
my sister and wished I had the money for that ticket to go back home.

One day when I was at the public library, I was at the computer and started crying. A woman who worked at the library asked me what was wrong and I told her everything. She told me, “You are too young to be under slavery.” She told me what caregivers are entitled to and she gave me the number for a shelter. After
my employer got angry and told me to leave her house, I called the shelter. I stayed in a homeless shelter until I could find another job. When I left my employer’s house, I hadn’t been paid in three months. I came with nothing and I left with my things in garbage bags. I didn’t even have enough to pay for the taxi
to the shelter but the taxi driver gave me $10 and told me to be strong. I worked full time for two years. I needed 24 months work to apply for permanent residence. But on my record of employment the employer showed that I had worked less. So this made it hard to apply for permanent residence. I found another position as a live-in caregiver for another employer until I could apply for permanent residence.

“These profiles are not selected to illustrate “worst case” scenarios. Instead, their stories are representative of just some of the concerns and experiences – each with their own variations – that are echoed as migrant workers make their way through the labour migration cycle.” the report says

The profiles shows that migrant workers arrive in Canada with very little information about the nature of their rights in the temporary migration stream; their employment, social and human rights while in Canada; mechanisms for how to enforce their rights; and information about community-based organizations that could assist them at different stages in the labour migration cycle.

They also show that “The exploitation is not isolated and anecdotal. It is endemic. It is systemic,” the report says.

This is not good news for Canada’s image on so many levels.

The report outlines policy and legal changes that would improve the situation.

Law and policy development have not been adequately rooted in and accountable to the rights-based framework. Instead, exploitation that arises at the recruitment stage is compounded by limitations that arise at each of the successive stages of the migration cycle. The result is that the laws construct the migrant worker – and migrant work experience – in ways that predictably produce significant insecurity and undermine the possibility of decent work.

To build effective protection for migrant workers, a multi-dimensional approach is needed, said the report, which would weave together:

  • strong, proactive government oversight and enforcement
  • protection for the effective and meaningful exercise of fundamental rights, including collective representation
  • substantive workplace and social rights that are responsive to migrant workers’ real circumstances
  • effective and accessible mechanisms

To this end, the report makes over 20 recommendations that correspond with each stage of the labour migration cycle and includes some of the following:

  • Legislation must be extended to ensure that all migrant workers have effective protection against the charging of recruitment fees and to ensure that employers will be jointly and severally liable for recruitment fees that have been collected by private recruiters
  • Work permits should be sector-specific or province-specific and must be framed in a way that allows a worker to engage in alternate work or modified duties in the event of injury or illness
  • Work permits should not prohibit migrant workers from enrolling in educational or training programs outside of working hours
  • Employment insurance benefits must be made accessible in practice to migrant workers
  • Canadian government officials should provide migrant workers with information about their rights in the applicable labour migration program; their employment, social and human rights prior to, and on arrival in Canada
  • Migrant workers and worker advocates should be provided with transparent information about how prevailing wage rates are determined. Migrant workers must not be paid less than the prevailing wage
  • Provincial legislation should be amended to ensure that migrant workers in all sectors – including agriculture and caregiving – have access to effective and meaningful legal protection for the right to unionize and bargain collectively.
  • Resources should be devoted to emphasize proactive enforcement of employment standards in sectors and workplaces employing migrant workers. Proactive enforcement should be supplemented by collaboration with community organizations, inspections targeted at sectors at risk for non-compliance, the ability to expand reactive investigations beyond the initial complaint when evidence demonstrates a broader pattern of violations, and monitoring after a hearing to ensure remedies are implemented
  • Provincial legislation, including the Employment Standards Act should be amended to ensure that anonymous complaints can trigger investigations and to permit complaints to be filed by third-parties such as community organizations and public interest groups
  • Rather than being excluded from Canada after four years of work, migrant workers should have a right to apply for permanent residence

“Migrant workers are not inherently vulnerable,” Faraday said. “We’ve created a system that leaves them open to exploitation, but we can fix that.”

Let’s hope the Canadian and provincial governments listen to you, Fay Faraday!

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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