Temporary foreign worker programs, restrictions of rights and freedoms and systemic abuses: policy alternatives deserving serious consideration Eugénie

Temporary foreign worker programs, restrictions of rights and freedoms

and systemic abuses: policy alternatives deserving serious

consideration

Temporary foreign worker programs, restrictions of rights and freedoms

and systemic abuses: policy alternatives deserving serious

consideration

Eugénie Depatie-Pelletier

Law - University of Montréal

Interuniversity Research Center on Globalization and Work

REDTAC-(Im)migration/CÉRIUM

[email protected]

Eugénie Depatie-Pelletier

Law - University of Montréal

Interuniversity Research Center on Globalization and Work

REDTAC-(Im)migration/CÉRIUM

[email protected]

11th Canadian Metropolis ConferenceCalgary, March 20 2009

Temporary foreign worker programs, discrimination in the recognition of rights and freedoms and systemic abuses:

policy alternatives deserving serious consideration



1. Temporary foreign worker programs

2. Administrative restrictions

3. Restrictions of rights and freedoms

4. Policy alternatives

1. Temporary foreign worker programs








1. Temporary foreign worker programs1. Temporary foreign worker programs

1.1 Programs without work permit

1.2 Programs with open or semi-open work permits

1.3 Programs with employer-tied permits

1.1 Programs without work permit1.1 Programs without work permit

Section of IRPA Regs. and special programs1 R186(a) and R187—Business visitor

2 R186(b)—Foreign government representatives

3 R186(c)—Family members of foreign government representatives

4 R186(d)—Members of the armed forces

5 R186(e)— Foreign government employees

6 R186(f)—On-campus employment

7 R186(g)—Performing artists

8 R186(h)—Athletes and trainers

9 R186(i)—Press correspondents and journalists

10 R186(j)—Speakers

11 R186(k)—Convention organizers

12 R186(l)—Members of the clergy

16 R186(m)—Judges and arbitrators

13 R186(n)—Examiners and evaluators

14 R186(o)—Expert witnesses and investigators

15 R186(p)—Health care students

16 R186(q)—Civil aviation inspectors

17 R186(r)—Aviation accident or incident investigators

18 R186(s)—Crew members

19 R186(t)—Emergency status

20 R186(u)—Implied status

1.2 Programs with open or semi-open work permits1.2 Programs with open or semi-open work permits

Work permit type

Qualifications visées

Program category

CIC code

Foreign worker category visés

"Open" work permit

Foreign workers without particular skills

Immigration or protection applicants already in Canada

S61 Refugee claimants 1

A 70 Regularization – spousal grounds 2

Regularization – humanitarian grounds 3

Workers – Live-in caregivers 4

Refugees awaiting permanent residence 5

Other residents with temporary status

C25 Foreign students – off-campus 6

C43 Foreign students – post-graduate employment 7

H81 "Destitute" ( ?-déchu) students 8

S62 Persons without status (moratorium on deportation) 9

H82 Others (Holders of a temporary resident permit of at least 6 months) 10

C41 Spouses of foreign workers 0,A,B 11

C42 Spouses of foreign students 12

international agreements

C 21 Unskilled Foreign workers (18-35 years old) - selected countries 13

Semi-openWork permit

14

C50 Employees of religious or charitable non-profit organizations 15

Programs for businesspeople and/or skilled workers

C20 Position under a reciprocal agreement 16

C22 Teachers (exchange) and invited speakers 17

T10 International agreements 18

T21 NAFTA/CCFTA negotiators 19

T22 NAFTA/CCFTA investors 20

T23 NAFTA/CCFTA professionals 21

T24 NAFTA/CCFTA intra-company transfers 22

T33 GATS professionals 23

CIC initiatives

C12 intra-company transfers 24

C13 emergency repairs (?-réparations d'urgence) 25

C10 Canadian interests – important advantage 26

C11 entrepreneurs 27

C30 research, teaching or training 28

C44 Post-doctoral fellows and subsidized researchers (?-chercheurs bénéficiaires de subventions) 29

1.3 Programs with employer-tied permits1.3 Programs with employer-tied permits

Level of competence associated with the foreign worker position

FWP integration regime

0,A,B (managers, professionals and skill trades)

With HRSDC-CIC work permit linked to a specific employer

1

C,D (« low-skilled » workers) Workers in live-in caregiver positions (LCP)

2

Workers in C or D positions in the agricultural/food industry sector from Mexico, Jamaica, Barbados, Trinidad & Tobago, or a member of the OECS (SAWP)

3

Workers in a C or D position (other than participants in LCP or SAWP)

4





1. Temporary foreign worker programs1. Temporary foreign worker programs

Admissions in Canada of Foreign Workers under Temporary Work Permit, by Skill Level (1997-2006)

0

10 000

20 000

30 000

40 000

50 000

60 000

1996 1998 2000 2002 2004 2006 2008

Foreign Workers -Management/Business (0)

Foreign Workers -Professionals (A)

Foreign Workers - TechnicalTrades (B)

Foreign Workers - Low-skilled(C/D)

Foreign Workers - No specificskills (open work permit)





2. Administrative restrictions2. Administrative restrictions

1 Interdiction to work for another employer

2 Obligation to live with his/her employer

3 Interdiction to freely change status in Canada (transition to permanent status)

2. Administrative restrictions2. Administrative restrictionsIF UNDER WORK PERMIT

1. No access to integration programs2. No pro-active monitoring of employers and agencies (most provinces)--> Authorized in sector where collective bargaining is illegal--> Authorized in sector not covered by worker’s compensation

IF UNDER EMPLOYER-TIED WORK PERMIT:3. No right to work for another employer

IF UNDER EMPLOYER-TIED LOW-SKILLED WORK PERMIT:4. No right to ask freely for permanent status5. Obligation to live on the employer’s property6. No right come with spouse and children


3. No right to work for another employer+4. No right to ask freely for permanent status

= IF FIRED:

- No right to work- Risk of deportation (No access to impartial hearing)- Risk of loosing access to permanent status- No acces to healthcare- No access to worker’s compensations - No access to legal aid- No acces to social security AND/OR- No access to EI (?)






3. Interdiction to work for another employer

4. Obligation to live with his/her employer

5. Interdiction to freely change status in Canada (transition to permanent status)






N.B. According to the U.N. Convention against “practices similar to slavery”

IF(1) Bound by law to labour for another person (2) Bound by law to live on the property of that

person AND(3) Not free to change his legal status

THENThe person is under a “servile status” similar to the status of slave


N.B. According to the U.N. Convention against “practices similar to slavery”

IF(1) Bound by law to labour for another person (2) Bound by law to live on the property of that

person AND(3) Not free to change his legal status

THENThe person is under a “servile status” similar to the status of slave





2. Administrative restrictionsCanada's residents under temporary status: Canada's residents under temporary status:

new admissions in 2006 and administrative restrictionsnew admissions in 2006 and administrative restrictions

2. Administrative restrictionsCanada's residents under temporary status: Canada's residents under temporary status:

new admissions in 2006 and administrative restrictionsnew admissions in 2006 and administrative restrictionsAuthorized to work without a work permit

Authorized to get a work permit without HRSDC job offer validation (open or semi-open work permit)

Authorized to get an employer-tied work permit if in possession of an HRSDC job offer validation

«Low-skilled» worker hired by an employer of foreign origin

«low skilled»/skilled unspecified – granted an open work permit

Granted an employer-restricted work permit

Granted an employer-restricted work permit with live-in restrictions

«Low skilled» workers hired by a Canadian employer

«High skilled’ workers and students on campus

Other «low-skilled» workers

Domestic workers

Foreign students outside campus

Asylum seekers and other temporary residents

Spouses of «high skilled» workers or students

«Low-skilled» workers from Europe, USA, Australia, etc.

Selection of «high skilled» workers granted a «quasi-open» work permit

«High skilled» workers Workers

FWP-LS Workers SAWP

Workers LCP

Statistics not available 61 703 93 695 34 381 40 804 37 472

1 Yes No No No Yes Yes Yes Yes No No No No

2 Yes (No) No Yes Yes Yes Yes Yes Yes (No) No No

3 (Yes) No No (Yes) (Yes) No No Yes Yes No No No

3. Restrictions of rights and freedoms3. Restrictions of rights and freedomsAdministrative restrictions

Documented cases Charter’s rights and freedoms restricted (Quebec’s Charter)

Interdiction to work for another employer

- No complain of the denial to go to the hospital- deportation in case of unionization

art.7 : right to liberty and security of the person

art. 2 freedom of association

(art. 4 : right to dignity)

Obligation to live in a residence of the choice of the employer

-No complain of the denial of the right to have visitors

- No complain of the denial of the right to leave the employer’s house

- Deportation after having slpet in the house of a community worker

art.7 : right to liberty and security of the person (art. 1)


(art. 2 : right to emergency help)


(art. 5 : right to privacy)

(art. 6-8 : right to a private residence)

No free access to permanent settlement

-No complain in case of sexual abuses

- Fear of not being sponsored by employer if joining a union




3. Restrictions of rights and freedoms3. Restrictions of rights and freedomsAdministrative restrictions

Charter’s rights and freedoms restricted (Quebec’s Charter)

Basis of restriction of the Charter’s right to equality (Quebec’s Charter)

Interdiction to work for another employer


art. 15 : discrimination based on national origin

Ex: Nannies from Franceart. 2 freedom of association


Obligation to live in a residence of the choice of the employer

art.7 : right to liberty and security of the person (art. 1)

art. 15 : discrimination based on national origin

Ex: Agricultural workers from Australia


(art. 2 : right to emergency help)


(art. 5 : right to privacy)

(art. 6-8 : right to a private residence)

No free access to permanent settlement


(art.10 discrimination based on social status)




« NOT SUCH A WARM WELCOME: MIGRANT WORKERS POURING INTO CANADA

ARE OFTEN EXPLOITED »


« NOT SUCH A WARM WELCOME: MIGRANT WORKERS POURING INTO CANADA

ARE OFTEN EXPLOITED »

The Economist – Nov 22, 2007






Toward occupation-tied work permits ?

Toward autonomous access to permanent status for all workers admitted for employment in a sector caracterized by a labour shortage - whatever the skill level associated with the occupation?


Toward occupation-tied work permits ?

Toward autonomous access to permanent status for all workers admitted for employment in a sector caracterized by a labour shortage - whatever the skill level associated with the occupation?

Documents

Temporary foreign worker programs, restrictions of rights and freedoms and systemic abuses: policy alternatives deserving serious consideration Eugénie