UN Special Rapporteur Decries Canada's Temporary Foreign Worker Program
The report by Tomoya Obokata, the United Nations' Special Rapporteur on contemporary forms of slavery, including its causes and consequences, was released on July 22. It says, "Canada should end labour migration arrangements that foster exploitation by creating dependency situations that tie workers to their employers and give employers control [over a] worker's housing, health care and migration status."
The Special Rapporteur visited Canada from August 23 to September 6, 2023, to assess the Canadian government's efforts in preventing and addressing "contemporary forms of slavery, in order to identify good practices and ongoing challenges." During his visit, he travelled to Ottawa, Moncton, Montreal, Toronto and Vancouver and met with federal and provincial government representatives, departments and agencies, civil society organizations, workers' organizations, academics, workers and survivors of contemporary forms of slavery, amongst others.
His report notes that Canada has yet to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, as well as the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
It informs that Canada is a partner of Alliance 8.7, which calls upon States "to eliminate contemporary forms of slavery by 2030" and that Canada has not yet ratified the International Labour Organization's (ILO) Occupational Safety and Health Convention, the Labour Inspection (Agriculture) Convention and the Domestic Workers Convention, and calls upon it to do so.
The Temporary Foreign Worker Program (TFWP) is administered by Employment and Social Development Canada, Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency. In Quebec it is administered in partnership with the Quebec government.
The program's five streams are: global talent, permanent residency, high-wage, low-wage and primary agriculture, including the Seasonal Agricultural Worker Program (SAWP).
Most temporary foreign workers, the Special Rapporteur points out, are engaged in agriculture or related forms of labour. SAWP differs from other programs in that it is managed through bilateral agreements between Canada and sending countries.
Statistics Canada points out that in 2023, 70,267 temporary foreign workers were employed in agriculture and 45,428 in food and beverage manufacturing sectors -- an increase of 21 per cent since 2020.
Even though the TFWP is a federal program, Obokata's report notes that "oversight of working conditions is primarily the responsibility of the provinces and territories, with the exception of a few federally regulated industries. It also informs that the number of temporary foreign workers entering Canada has increased significantly over time, with some 136,000 permit-holders under the TFWP in 2022, up from 84,000 in 2018.
Under the TFWP, the report explains, "workers' migration status depends on an employer-specific, closed work permit" which has "created a significant power imbalance given that, if workers are fired, they may be deported back to their countries of origin. Employers may have limited incentive to ensure decent working conditions, as workers do not have a meaningful choice of alternatives."
Added to this is the fact that workers "are not always aware of their rights ... as some employers reportedly do not provide relevant information." Other issues they face "include language barriers and limited access to the Internet." Furthermore, "most workers are reluctant to raise issues with their employers or to report exploitative working conditions fearing that they may be identified as complainants" who then get repatriated as unsuitable.
The government also "does not seem to proactively and effectively inform workers about their rights, apart from publishing information online and providing ad hoc funding to civil society organizations for migrant rights education, although it does provide outreach sessions to employers, consulates, migrant worker support organizations and authorities on workers' rights."
The government "defers a significant portion of responsibility for informing temporary foreign workers of their rights to employers, despite the obvious conflict of interest." And unlike other newcomers, "temporary foreign workers cannot benefit from federal settlement services, which would provide information on their rights and facilitate their ability to participate in public life." Thus, "the onus is on either a civil society organization to identify and inform workers or on workers to seek assistance" while "employers can act to prevent such contact."
The report of the Special Rapporteur asserts that "All workers should have trade union rights, but barriers exist for migrant workers. They are not always represented by unions, especially in the agricultural and care sectors, where all workers lack federal union rights," the report notes. More specifically, under the SAWP, "workers cannot negotiate their working conditions, as their contracts are negotiated between the Government and countries of origin."
"For many seasonal workers, the fear of losing their jobs and being deported is compounded by debt bondage," the report continues. "Employers argue that closed work permits are necessary to enable them to recuperate the cost of recruiting and transporting workers, which itself creates a de facto situation of debt bondage. Many workers go into debt to cover the costs associated with participating in the above programs and rely on their Canadian wages to repay their debts. They may also incur debts to third-party recruiters, including costs that legally should be borne only by the employer."
As a result of the "structural inequities between temporary foreign workers and employers and their insufficient access to justice and remedies, workers experience a wide range of abuses." The Special Rapporteur has "received reports of underpayment and wage theft, physical, emotional and verbal abuse, excessive work hours, limited breaks, extracontractual work, uncompensated managerial duties, lack of personal protective equipment, including in hazardous conditions, confiscation of documents and arbitrary reductions of working hours.
"Women reported sexual harassment, exploitation and abuse. Fraud is also an issue, as some workers reported receiving false assurances that their employers had undertaken a labour market impact assessment [LMIA] or applied for permanent residency, only to find out that they had fallen out of status. Complaint mechanisms are difficult for workers to navigate without external assistance" and "[c]onfidentiality is not always well-maintained and whistle-blowers face retaliation despite prohibitions against reprisals."
Police are also reported to have "failed to take complaints seriously, claim that they do not have jurisdiction and report workers to immigration authorities rather than investigating their complaints."
Conclusions and Recommendations
The Special Rapporteur's report stresses "the adverse effects of the activities of the Canadian private sector on human rights and its treatment of marginalized groups." It beckons Canada to "act more decisively to reform laws and policies that enable the exploitation of vulnerable workers and fail to provide adequate remedy and rehabilitation to victims of exploitation and abuse."
It suggests that Canada "move from acknowledging the human rights challenges its past and current policies have created ... towards meaningful remedial actions, including: promoting human rights due diligence by Canadian companies; reforming migration programs that are conducive to exploitation."
Turning to the country's constitutional framework, the Special Rapporteur believes that "the current arrangements for responsibility-sharing" between the federal, Quebec and provincial and territorial governments "systematically create situations of interjurisdictional neglect that increase vulnerability to contemporary forms of slavery for certain groups and stymie efforts to protect and assist victims."
In order for people to "coexist without discrimination every resident of Canada must enjoy the same rights," the report states. It notes that "numerous civil society organizations and workers' organizations" have "assessed the human rights challenges highlighted in the present report and have drawn similar conclusions." The UN Rapporteur calls on the government to "implement their recommendations ... rather than deferring action by prolonging debate or taking concrete recommendations under indefinite periods of consideration."
Canada is called upon to end "the use of closed work permit regimes" and allow "all workers the right" to "choose and change their employers in any sector without restriction or discrimination."
The federal government is recommended to ensure "that all migrant workers have a clear pathway to permanent residency from the time of their arrival in the country" and that they are "able to benefit from federally funded settlement services and other public services without discrimination."
The report also recommends the regularization of those "who have lost status, in particular workers who have been victims of contemporary forms of slavery."
It entreats the government to enforce "international human rights obligations, national human rights standards and provincial and territorial standards regarding labour rights, occupational health and safety, unionization, health care and housing for migrant workers, without discrimination."
As for "interjurisdictional neglect," the report states that it could be dealt with "by mandating or creating a single coordination body with full oversight of migrant workers' rights and conditions."
The federal government should also "ensure that all migrant workers have equitable access to health care from the time of their arrival" and be able to "effectively report abuses and receive protection, including by providing "necessary information to all migrant workers regarding their rights and entitlements ... before and after arrival, in languages they understand." Language education should also be provided "before and after arrival to all migrant workers."
The process "to obtain open work permits for vulnerable workers" should be streamlined to be "more easily renewable ... pending their transition from closed work permits."
The federal government is also called upon to "allocate sufficient resources and strengthen the labour inspection regime" by ensuring that it "covers all industries, including in-home care ... and all aspects of employers' obligations."
Inspections should be "unannounced" and "cover all aspects of migrant workers' rights and all employers' obligations, including access to health care, the provision of accurate information and oversight of third-party recruiters."
It is also proposed that the federal government "ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the ILO Labour Inspection (Agriculture) Convention, 1969 (No. 129) and the ILO Domestic Workers Convention, 2011 (No. 189)."
Canada is implored to end "collusion with immigration enforcement authorities that leads to the deportation of victims, witnesses, and whistle-blowers." It is called on to effectively protect migrant victims, witnesses and whistle-blowers by providing them "with status and a clear path to permanent residency that is not at any level contingent on collaboration with law enforcement." It also calls for Canada to create "pathways for long-term or permanent residency for foreign victims and survivors."
To read the Special Rapporteur's full report, click here.
This article was published
in
Volume 54 Number 9 - September 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/M540099.HTM
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