temporary foreign workers’ program

LawNews

Citizenship and Immigration Canada (CIC) has come under fire recently for letting a foreign worker die. In late 2014, Sheldon McKenzie, a thirty nine year old man from Jamaica, was working on a tomato farm in Ontario when he hit his head. The injury was so severe he had to be rushed to a hospital where doctors had to remove part of his brain due to swelling and internal bleeding.

Though McKenzie was in a coma, CIC tried to deport him. His cousin in Winnipeg hired lawyers to try and stay the deportation. McKenzie died before a decision could be rendered on his case.

This case has been a cause of outrage among Canadians unfamiliar to the plight of temporary foreign workers. To those who know CIC’s Temporary Foreign Worker Program, deportation for health reasons – also known as “medical repatriation” – is horrifically common.

When Sheldon McKenzie hit his head and went into a coma, he violated the terms of his work permit which allowed him to remain in Canada so long as he could do the job for which he was granted a visa. As he was unconscious, he couldn’t work, and his inability to work made him useless to the Canadian government which tried to send him home.

According to a 2014 study by the Canadian Medical Association which looked at medical repatriation among temporary foreign workers from 2001 to 2011, employees who are hurt on the job are normally deported without getting the care they need. The medical reasons for deportation can be anything from musculoskeletal and respiratory problems to losing a hand or foot to poisoning to pregnancy.

Is all of this legal? Isn’t there a law to protect these workers?

No, there isn’t. There are generic laws meant to protect people in Canada, but there are no specific rules for temporary foreign workers.

The generic law regarding immigration is the federal Immigration and Refugee Protection Act (IRPA). It sets out Canada’s immigration objectives which include supporting the Canadian economy, facilitating the entry of temporary workers for the purposes of trade and commerce while at the same time protecting public health, safety, and security.

According to article 3(3)b), the IRPA has to be applied in a way that promotes transparency “by enhancing public awareness of immigration and refugee programs,” something the federal government clearly isn’t doing. The rules regarding programs like the Temporary Foreign Workers are hidden within a lot of propaganda on CIC’s website.

The Act also has to be applied in a way consistent with the Canadian Charter of Rights and Freedoms which states that everyone has a right to life, liberty and security of the person and not to be denied these rights except in accordance with principles of fundamental justice. The Charter also recognizes that everyone is equal before the law and has the right to equal protection and benefit without discrimination based on race, national or ethnic origin, colour, religion, sex, age or physical or mental disability.

temporary-foreign-workers
Image: CBC

If you want specific rules regarding temporary foreign workers, you have to look at leaflets and fact sheets issued by the CIC. According to these documents, the employers of temporary foreign workers have to pay their employees, which includes overtime. They have to make sure the workplace is safe and they are not allowed to take away a worker’s passport or work permit. Employers have to give their workers breaks and days off and cannot force them to perform tasks for which they were not hired or trained. Employers also can’t force workers to do dangerous work.

What is particularly troubling about these leaflets and fact sheets is the advice CIC gives if a worker is hurt on the job, which is to tell their supervisor and then see a doctor. In a world where foreign workers are among its most vulnerable people, telling a supervisor you’re too hurt to work could mean the difference between staying in Canada and being forcibly removed. Since these rules are not entrenched in Canadian law, immigration officials and employers have far too much freedom to hurt workers.

Common sense and decency dictate that if a worker is hurt in Canada working for a Canadian business for the sake of the Canadian economy, that worker deserves Canadian health care. But without clear concise laws and penalties for abusive employers there is no way to guarantee that a temporary foreign worker will get the help they need if they get hurt helping us.

When confronted about the McKenzie case, federal minister of Employment, Workforce Development and Labour MaryAnn Mihychuk promised to make the Seasonal Agricultural Worker Program – a subcategory of the Temporary Foreign Worker Program – part of a government review by the Standing Committee on Human Resources.

Here’s hoping that the Committee comes up with some practical solutions like a distinct law setting out the obligations of employers to temporary foreign workers and penalties for hurting them. Let’s see the government make a stronger effort to entrench the rights of EVERYONE in Canada and make sure that they know what they are.

Failure to help our workers makes us part of the indictment in Woody Guthrie’s song Deportee. In the final verse he sings:

“Is this the best way we can grow our big orchards?
Is this the best way we can grow our good fruit?
To fall like dry leaves to rot on my topsoil
And be called by no name except deportees?”

* Featured Image J. Stephen Conn via Flickr Creative Commons

News

On July 19th around twenty people convened at the corner of Côte-des-Neiges and Queen Mary. The occasion was a solidarity event and press conference organized by Justice for Noé Committee, which is working to help ex-temporary migrant worker Noé Arteaga Santos, as well as other temporary migrant workers, achieve justice.

According to the organizers of the event, Noé came to Quebec in 2008 under the Temporary Foreign Workers program, which allows employers to bring non-Canadians to work in the country for a limited time under temporary work visas.

Noé used to work for a Quebec-based tomato producer called Savoura. During his employment, Noé participated in the organization of a very short strike to demand that a sick co-worker receive medical care. After that, Noé was abruptly fired and forced to return to Guatemala.

Noe
Noe Arteaga Santos at the July 19 demonstration in Montreal. Photo by Cem Ertekin.

In 2014, a human rights tribunal decided that his firing was unjust and that Savoura had contravened articles 10 and 16 of the Canadian Charter of Rights and Freedoms. Later in 2015, as Noé was about to reach an agreement for compensation with Savoura, the company declared bankruptcy, even though, as some speakers pointed out, Savoura’s products are still being sold at grocery stores everywhere and profits are coming in.

According to the Justice for Noé Committee, the amount that has been identified by Noé as damages in negotiations with Savoura is around $50 000, calculated on the basis of $10 000 lost salary per year for five years. The Committee has recently launched an IndieGogo campaign and is hoping to collect that amount through crowdfunding.

Plight of temporary migrant workers

According to Viviana Medina, who is a Community Organizer at the Immigrant Workers’ Centre (IWC), Noé is not the only temporary migrant worker who has been mistreated by their employers. Medina explained that she talked to several workers at the demonstration and that they all expressed the severity of their working conditions.

“They asked us to go to their farm, because they live in a lot of bad conditions. They [also] said that they are scared to say anything,” Medina said.

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Helena Sanchez speaking at the solidarity event on July 19 in Montreal. Photo by Cem Ertekin.

The main problem most temporary migrant workers face is that no one tells them what rights they actually have in Canada, because whatever information they receive, it either comes through an agency or the employer. Since they don’t know their rights, they can’t ask for them. And in case that they ask for them, they risk facing dire repercussions.

According to the IWC, most of these workers have closed work permits which bind them to one employer, which means that if they get fired, their status in Canada is compromised.

Helena Sanchez, a representative from the Temporary Migrant Workers Association, which functions within the IWC, told us that the Temporary Foreign Worker Programme differs from a regular work permit in the sense that it’s “super precarious.”

“Before, there were all these corporations which used to bring all their industries to countries where it was cheap to produce. Let’s say Guatemala, let’s say Africa – anywhere. Nowadays, it’s even better. With [programs like TFWP], these corporations can actually bring the workers, not move their company there. So they have the cheapest labour ever. Labour that is frightened, that is isolated, that has no chance to know their real rights,” Sanchez said.

Sanchez emphasized that their struggle for is not only for workers’ rights, but also for human rights: “They can go too far to control their lives in a way in which they don’t have the right to go outside their homes. […] They don’t even have the right – I mean they have the right – but the employer does not give them even the right to speak with other people. We tried to speak with different workers. […] It’s even difficult to speak to them, because they’re frightened. They’re fucking frightened, it’s impossible.”

The organizers hope that their activism will solicit a response from the Quebec Minister of Labor and from Savoura, and eventually improve the working conditions of all temporary migrant workers throughout Canada.