Protecting Employees Through the Temporary Foreign Workers Program

The Temporary Foreign Worker (TFW) Program allows employers to recruit workers from abroad when qualified Canadian citizens or permanent residents are not available. The Program was created in 1973 to allow Canadian employers to hire foreign nationals to fill gaps in their workforces on a temporary basis. It is jointly managed by Human Resources and Skills Development Canada (HRSDC) and Citizen and Immigration Canada (CIC).

Section 30 of the Immigration and Refugee Protection Act, SC 2001, c 27, provides that a work permit or authorization to work without a permit is required in order for a foreign national to be allowed to work in Canada. In 2011, the TFW Program allowed approximately 192,000 temporary foreign workers into the country. In contrast, only 90,211 temporary foreign workers entered Canada in 2015. The TFW Program has had its fair share of controversies and overhauls. The first half of this post post argues that early reforms of the Program, including the changes to the “four-in, four-out” rule (discussed in greater detail below) are a step in the right direction. But important issues such as recruitment fees and permits remain unaddressed. Further steps to reform these lingering issues are discussed in the second half of the post.

Temporary Foreign Worker Program: Controversies and Reform

In 2013, the Canadian Broadcasting Corporation (CBC) reported on a series of issues surrounding the TFW Program. Most notably, the CBC reported that the Royal Bank of Canada’s (RBC) Information Technology employees were losing their jobs to replacement foreign workers.

The TFW Program was designed to facilitate economic growth by responding to short-term labour market needs. It was therefore problematic that RBC employees allegedly trained their replacements before they were laid off themselves. Although RBC responded to the controversy by issuing a statement denying the charges, a strong negative reaction from various other industries led Jason Kenney, former Minister of Employment and Social Development, to announce a comprehensive overhaul of the TFW Program in 2014.

The 2014 reform focused on ensuring the Program was used only as intended: a last and limited resort to fill temporary labour shortages when qualified Canadians were not available. Emphasis was placed on offering greater clarity and transparency on labour market assessments and the enforcement of tougher penalties on employers who break the rules. Access to the TFW Program was also restricted, in order to ensure Canadians were first in line for available jobs.

On 13 December 2016, the Government of Canada announced that it was taking further action to improve the TFW Program. These amendments focused on preventing unnecessary hardship and instability for both workers and employers, creating “conditions for growth [that] will help families in the middle class and those working hard to join it.”

As such, the four-year cumulative duration rule, which limited the work for temporary foreign workers to a span of four years, no longer applies. Known as the “four-in, four-out,” the rule generated uncertainty and instability on both temporary workers and employers, and added an unnecessary burden on the application process. Temporary foreign workers who have worked four years in Canada will no longer become automatically ineligible for renewed work permits.

Other changes that were announced include requiring low-wage employers to advertise positions to under-represented groups in the workforce: youth, persons with disabilities, Indigenous people, and newcomers. “Our government is committed to making the Temporary Foreign Worker Program work for our economy,” said MaryAnn Mihychuk, Minister of Employment, Workforce Development and Labour. “That means ensuring job opportunities are made available to Canadians first—in particular to groups typically under-represented in the labour market, like Indigenous people.”

Protecting Workers: Examining the Canadian Council for Refugees’ Further Recommendations for Reform

The recent reforms were announced as the first step of the Government’s commitment to bring a suite of changes to the TFW Program. We can expect more changes moving forward as the Government continues to work on the development of a more comprehensive policy.

The Canadian Council for Refugees (CCR), which is a national non-profit organization committed to the rights and protection of refugees and other vulnerable migrants, states that federal government must take responsibility for preventing abuse by predatory recruiters. CCR alleges that migrant workers are vulnerable to exploitation because of the precariousness of their status in Canada; a two-tiered society is created through this “disposable” workforce.

The CCR believes that there needs to be a focus on reducing the vulnerability of migrant workers to abuse. The current TFW Program issues closed work permits. By tying workers to the individual employer who brought them to Canada, it creates limited options for workers who are being exploited. This is contrary to Article 6 of the International Covenant on Economic, Social and Cultural Rights, which guarantees “the right to freely choose or accept work, and to full and productive employment in conditions which safeguard workers’ fundamental political and economic freedoms.” CCR argues that the Program should first issue open work permits within approved TFW industries, failing which workers may be placed in a situation where their only options are to retain with the abusive employer or to leave Canada.

The government also needs more stringent legislation to address predatory recruitment. The CCR alleges that migrant workers are often charged exorbitant fees, up to $20,000, by recruiters in Canada or in their country of origin. Due to the debts incurred, workers are more likely to become vulnerable to serious abuses such as human trafficking. The current TFW Program does not permit recruitment fees, however the rule is not enforced. A step in the right direction would be to require recruiters to register with the province and TFW Program to track their activities.

CCR’s recommendations would have a positive impact on the job landscape of Canadian citizens, as they promote the objectives of the Program while ensuring foreign workers are protected. Open work permits within approved TFW industries would create an incentive for employers in the Program to respect the human and labour rights of workers. It would also ensure that workers remain within designated TFW industries that require workforces on a temporary basis.

In conclusion, the recent amendments by the Government of Canada are a positive indication that parliament is focusing on protecting workers as it moves towards a more comprehensive policy. Although no timeline was set, it will be interesting to see further developments in connection to pathways of permanent residency for temporary foreign workers. It is imperative that issues such as predatory recruitment fees and open permits within approved TFW industries are addressed in order to improve access to job opportunities for workers, for employers and for the Canadian economy.

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