THE TEMPORARY FOREIGN WORK PROGRAM
The Temporary Foreign Worker Program in Canada began as a niche program meant to allow short-term entry of highly skilled professionals into Canada who were not seeking to remain here and become citizens. It existed alongside the Seasonal Agricultural Labourers Program that began in 1966 and recruited seasonal agricultural labourers from the Caribbean and Latin America to work on Canadian farms. The latter program met a demand from Canadian agri-business for workers willing to work for low wages, and to undergo work and living conditions that few Canadian-resident workers regarded as acceptable.
In 2002, the Temporary Foreign Worker Program was changed by the federal government to allow employers in areas outside of agriculture to have a source of short-term – skilled or unskilled – but non-professional labour in employment areas and regions of the country where Canadian-resident workers were allegedly unavailable in sufficient numbers to meet employers’ demands. That soon meant that employers in construction, retail, restaurants and other food-serving operations, and gasoline stations, among other sectors, could apply for temporary workers to fulfill their labour needs.
TFWs LACK RIGHTS
The legislation made clear that a temporary foreign worker (TFW) was in Canada solely to perform the work for a particular labour contractor. He or she could not change employers and could not remain in the country once that contract was over or if they were fired by that employer or left employment with that employer regardless of the reason for the dismissal or for quitting. If a TFW became disabled or too ill to continue work, they also faced immediate deportation. There were few provisions in the legislation to protect the rights of TFWs while they were in Canada and there was no pathway in the legislation or in other Canadian legislation towards citizenship for TFWs. Though there were over 65,000 TFWs in Alberta in 2009, they were largely invisible to most of the population and rarely the subject of a media article.
A study conducted for the Alberta Federation of Labour in 2007 by Edmonton lawyer Yessy Byl revealed that 60 percent of employers of TFWs in Alberta violated at least one provision of either the Employment Standards Code or the Occupational Health and Safety Act. Enforcement of these legislative acts largely depended upon worker complaints to the Department of Labour, which were rare because TFWS feared that they would be fired and deported if they made formal complaints. Byl reported that various employers paid TFWs less than their labour contracts specified, failed to pay overtime, charged exorbitant rents for sub-standard accommodation, charged illegal fees, and ignored unsafe and unhealthy conditions in the workplace even when TFWS brought them to their attention. Most TFWs were supporting family members in their home countries with their Canadian earnings and felt the need to accept whatever conditions of work and living their employers provided so as to avoid deportation, regardless of the consequences for their own health and safety. Because their families back home needed the monies they were earning in Canada, and job prospects at home were limited, a sub-set of TFWs failed to return home when their labour contracts were over. Having become “illegals,” they took whatever under-the-table employments they could find, generally relying on employers who were anxious to circumvent minimum wage and labour standards legislation.
IMPACT OF THE PANDEMIC
Covid-19 revealed problems with the TFW Program that its framers had not envisioned. There were no provisions in the legislation meant to deal with a pandemic or a severe recession resulting from other causes that might make the labour contracts of TFWs moot. So they assumed that most workers would complete their labour contracts and then return home, and that workers who were incapacitated or too ill to work would also return home without incident. But Covid-19 upsets such planning, which always assumed that the purpose of TFWs was to benefit particular Canadian employers and that the legislation was otherwise of no particular concern for other Canadians.
Many TFWs, both legal and illegal, have lost their jobs but if they regard their prospects for new employment in Canada as better than in their home country, they have an incentive to try to hide from immigration authorities and seek new employment. Those in employment, whether the one that their original TFW contract provided for or not, have a disincentive to quit working if they believe that they have contracted the coronavirus. Indeed they have an incentive not to undertake a test for Covid. Their choice, in all cases where they might believe that they have Covid, is between their own health and the health of Canadians, on the one hand, and their obligations to their families abroad, on the other.
THE RISK TO ALL CANADIANS
With no pathway to citizenship and the TFW legislation being rather firm that there is no place in Canada for TFWs unable to work without cease during their contract, the position of TFWS in Canada has become more precarious than ever. TFWs, unlike Canadian citizens and landed immigrants, are ineligible for Employment Insurance and the Canadian Emergency Response Benefit. If they don’t work, they don’t eat.
And while the TFWs may remain as invisible to Canadians as ever before, their precariousness means that the legislation, if not amended, places all Canadians at risk. Immigrant advocacy organizations are calling on Canada to treat all residents of Canada, regardless of immigration status, equally in terms of financial benefits during the pandemic, to suspend parts of the legislation that refer to deportation of TFWs without work, and to open up a path for citizenship to TFWs. All of these changes would encourage cooperation of TFWs with measures meant to give incentives to Canadian residents to cooperate with the emergency measures required to limit the threats to lives posed by the pandemic.
Byl, Yessy and the Alberta Federation of Labour, Temporary Foreign Workers: Alberta’s Disposable Workforce, November, 2005, available here.
Sarah Lawrynuik, “Precarious employment, immigration situations force hard choices in pandemic,” Winnipeg Free Press, April 15th, 2020, online.
To read more about the TFW program in the 2000’s, see Working People in Alberta: A History, 2012, available online here: pp. 234-235 (explanation of the program, and Yessy Byl as advocate hired by the AFL –see also the interview below; pp. 285-286 (a critique of the program including comments from Gil McGowan); p. 290 (inclusion of TFWs in a discussion of workers who are difficult to organize); p. 292 (discussion of TFWs as cheap labour and mainly visible minorities).