by Delphine Nakache
The On the Move Partnership is partnering with CBC Ideas and the Federation for the Humanities and Social Sciences to present: “On the Move: Temporary Foreign Worker Policy in Canada,” a panel discussion followed by an audience Q&A as part of Congress 2015. This free public event will take place Tuesday, June 2, 2015, 19:30 – 21:30 at the University of Ottawa.
A 7-year, SSHRC-funded research study, the On the Move Partnership is investigating the spectrum of employment-related geographical mobility (ERGM) and its consequences for workers, families, employers, communities, and Canadian municipal, provincial and federal governments. Many workers are ‘on the move’, travelling long distances to, from and within their work. In this panel discussion, five On the Move co-investigators will discuss aspects of their research.
In her talk, Katherine Lippel, University of Ottawa, will give an overview of the policy research component of the Partnership, describing how employment-related geographical mobility is understood in this project, which Canadian jurisdictions are covered and which policy issues relating to mobility and working conditions have been studied so far. Drawing from specific examples in the area of employment standards, unionization and collective bargaining, workers’ compensation, occupational health and safety, pensions, social security/social welfare protections, and health care, she will illustrate the ways in which policy is ill-adapted to the mobile workforce regardless of where they are situated in the spectrum. It will be shown that mobile workers sometimes fall into a grey zone that makes it very difficult to determine which norms and protection apply to them. Practical obstacles to effective application of the law do exist for these workers, and it is important to know them to remedy this situation.
A group of workers that is an increasingly prominent feature of the Canadian labour force is that of international migrant workers. They do face many of the issues that Canadian mobile workers are confronted with, however, because they are more vulnerable than Canadian workers for a variety of reasons, regulatory effectiveness is a challenge for this very specific category of workers. Canada’s Temporary Foreign Worker Program (TFWP) has allowed employers to access migrant workers to meet specific labour needs when Canadian citizens or permanent residents are not available. In December 2013, 386,406 migrant workers were employed in the country, representing about two per cent of Canada’s national workforce of 19 million. This is a considerable increase from the average of 80,000 and 100,000 migrant workers in most years preceding 2002. In addition to the substantial growth in numbers of migrant workers, a higher proportion of migrant workers performing jobs in lower-skilled (NOC C and D) occupations have entered the Canadian labour market since the inception of the Low-Skill Pilot Project in 2002. However, the increase in the number of migrant workers is only partially attributed to the Low-Skill Pilot Project. In fact, the Low-Skill Pilot Project grew from 1,304 migrant workers in 2002 to a high of 39,813 in 2013, but during the same time period, migrant workers present under “International Arrangements” (i.e., multilateral trade agreements such as the North American Free Trade Agreement (NAFTA)) grew from 16,215 to 40,487. As for workers through Canadian Interests stream (i.e., individuals and spouses coming in under youth exchange programs, international intra-company transfers, and for research and study related purposes), their number rose from 35,627 in 2002 to 212,937 in 2013 (Bandali (2014: 6; ESDC 2014, 4-5).
In 2013 and 2014, a series of reports emerged and argued that there was little evidence of the labour shortages and skills mismatches that had largely been used to justify the existence of the TFWP. At the same time, intense media coverage of anecdotal accounts of migrant workers being abused by their employers or being hired over Canadian workers fed the belief that the TFWP was being misused in several ways. In April 2014, the government announced a moratorium on all new and pending migrant workers’ applications in the food service sector. This ban was lifted with the announcement of a complete overhaul of the TFWP in June 2014. The overhauled TFWP introduced a series of changes, some of which are discussed below.
Prior to the overhaul, the term “Temporary Foreign Worker Program” encapsulated separate programs, masking the diversity of requirements and forms of authorized entry. For example, in order to hire international migrant workers, employers may (or may not) be required to obtain an approved application from Employment and Social Development Canada (ESDC) demonstrating that there is a need for a foreign national to fill the job they offer due to the lack of suitable workers in the domestic labour force. This assessment, formerly known as a labour market opinion (LMO), has been renamed to the more rigorous and comprehensive labour market impact assessment (LMIA) as part of the June 2014 changes. Under the June 2014 overhaul, the former TFWP was re-branded into two streams with distinct characteristics: one called the Temporary Foreign Worker Program (TFWP) and the other called the International Mobility Program (IMP). Under the new TFWP, all work permits are subject to the requirement to obtain an LMIA before hiring a migrant worker, and hence, are for a specific job, employer and location. Interestingly, while in 2014 public attention was mainly focussed on migrant workers with an LMO work permit (especially those working in the food and beverage sectors), the vast majority of migrant workers present in Canada in December 2013, now captured under the International Mobility Program, were in fact on LMO-exempt work permits.
Before the June 2014 reform, the TFWP had no limit regarding the number of migrant workers admitted to Canada. Following the overhaul, employers of workers under the TFWP (i.e., who must obtain an LMIA before hiring a migrant worker) are now required to make the transition to a Canadian workforce and reduce their employment of migrant workers. The transition requirement that an employer must meet as part of the LMIA application is determined by the wage offered to the worker. If the wage is below the provincial/territorial median hourly wage ((i.e. the position is “high-wage”), employers are subject to a worksite cap that limits the number of migrant workers to a maximum of 10 percent of the total hours worked by all employees. If the wage is at or above the provincial/territorial median hourly wage (i.e. the position is “high-wage”), employers are now required to submit transition plans with their LMIA application. For example, they must identify the steps they are taking to reduce their reliance on migrant workers (including recruitment, retaining or retraining Canadians) or provide proof that they are helping a high-skilled migrant worker to transition to a permanent resident status in Canada (ESDC 2014, 8-12). While all low-wage migrant workers are now limited to one-year work permits (as opposed to the previous two-year permit), ESDC is no longer processing LMIA applications from employers in regions with unemployment rate of six per cent or higher. This applies only to specific low-skilled (NOC D) occupations in the accommodation, food services and retail trade (ESDC 2014, 12). The relation between the TFWP and unemployment is not, however, as simple as it seems.
Panellist Sara Dorow, University of Alberta, will specifically highlight the key contributing role of live-in caregivers to the economic productivity of Canada. In summer 2014, Dr. Dorow and PhD student Marcella Cassiano launched an online survey with live-in caregivers in the Fort McMurray region that asked about their experiences living and working in Alberta’s “economic engine.” Combined with interviews and documentary research, their research shows that the economic contribution of live-in caregivers, enabled by difficult working conditions, is now undermined by an uncertain future in Canada due to recent (November 2014) changes to the live-in caregiver program.
Drawing on interviews with seventeen employers and twenty-three human resource managers, panellist Sylvie Gravel, UQAM, will also explain why low-skilled international migrant workers are beneficial to employers, from a human resource management perspective. Dr. Gravel will focus on management issues related to health and safety regarding the hiring of international migrant workers in agriculture, horticulture, landscaping and slaughterhouses. As will be discussed, hiring international migrant workers is no less expensive than hiring local workers, but it is attractive to employers because it facilitates organisational growth. While international migrant worker employment satisfies seasonal business needs for flexibility, it also leads to a paradox in the planning of human resources since the flexibility usually expected of these workers creates inequity in the application of protective measures for health and safety at work.
Talking about the June 2014 changes to the TFWP, and how they are primarily affecting low-wage/employer-specific work permit holders, panellist Delphine Nakache, University of Ottawa, will discuss the disconnect between the message sent to these workers and the reality. While these workers are told by the federal government that their access to the TFWP is now restricted and that they are not expected to settle in Canada in the long run, an increasing proportion of them are in fact transitioning to permanent residence from within Canada. Dr. Nakache will explain why. Drawing on field research conducted between February 2014 and October 2014 and involving 99 research participants from Ontario, Alberta and Manitoba (both current and former migrant workers, employers and external stakeholders), she will also address the factors leading workers to seek permanent residence, the challenges that they face in this transition (and how they are overcome) and the broad implications for settlement of such transition processes.
While in the last decade, a great deal of academic research has pointed out a number of challenges related to the vulnerable position of migrant workers vis à vis their employers, few studies have analyzed the unionization efforts of migrant workers across Canada. Panellist Eric Tucker, York University, will discuss how seasonal agricultural workers, caregivers and other workers performing low-skilled occupations typically find themselves in sectors of the economy where collective bargaining has failed to take root even for Canadian residents with permanent status. These workers are even less likely to successfully unionize because of their added layers of vulnerability, including precarious immigration status, social isolation and language barriers. Further, the addition of international migrant workers into a workforce with permanent residents creates difficult dilemmas for trade union organizers. Notwithstanding these severe limitations, some international migrant workers have been part of successful organizing drives, but, as will be discussed, it is unlikely that these successes can be replicated on a larger scale.
Bandali, F. 2014. “Shedding light on the TFWP Program”. Calgary: Canada West Foundation/Centre for Human Capital Policy.
Employment and Social Development Canada (ESDC). 2014. “Overhauling the Temporary Foreign Worker Program: Putting Canadians First”. Ottawa: Gouvernement of Canada.
 National Occupation Classification (NOC) is Canada’s taxonomy and organizational framework classifying occupations in the Canadian labour market. According to the government occupation classification system, occupations falling under NOC 0, A, or B skill levels are high-skilled work and require tertiary education or a minimum of two years of training. Jobs classified as NOC C and D skill levels are considered low-skilled work and require a high school diploma or a maximum of two years of job-specific training.
Under the new LMIA, employers must provide information on the number of Canadians that applied for the available job, the number of Canadians the employer interviewed, and explain why Canadians were not hired. ESDC can refuse LMIA applications if migrant workers are believed to have, or will have a negative effect on the Canadian labour market.
 Work permits that are exempt from the Labour Market Impact Assessment (LMIA) include International Experience Canada (IEC), which accounted for 43% of international migrant workers in 2013. IEC consists of reciprocal agreements with other countries to offer young people travel authorization and temporary work permits for up to one year. The second largest category, which accounted for 20% of international migrant workers under the IMP in 2013, includes international trade agreements (such as the North American Free Trade Agreement).. Other categories under the IMP heading include work permits for international students who have graduated and received a post-graduate work permit, as well as open work permits for spouses and common-law partners of skilled migrant workers and full-time international students.
 This limit applies only to businesses with 10 or more employees, and employers have until July 1, 2016, to transition to this rule. The 10 percent cap is being phased in over two years, 30 percent or frozen at current level (whichever is lower) as of June 20, 2014; further reduced to 20 percent on July 1, 2015; and reduced again to 10 percent on July 1, 2016.
 Of note, seasonal agricultural migrant workers (who are also on “tied” work permits) have been exempted from these measures (ESDC 2014, 26).