Who protects temporary foreign workers in Canada

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BY WILLIAM MACINTOSH

STORY 3 ITEM 1

CLAIMS of abuse and exploitation of temporary foreign workers has increased in recent years as the number of such workers has risen in Canada to well over 350,000 in 2013. Workers complain that employers fail to comply with hiring contracts by requiring longer work hours and not paying agreed-upon salary, and providing working conditions that Canadian employees would reject.

Many foreign workers won’t complain for fear of retribution from their employer. They cannot easily change employers once they are in Canada and if they leave Canada their chances of returning are decreased.

It is in response to this problem that the government made its recent changes to immigration rules affecting employers wanting to hire temporary foreign workers. Immigration Minister Chris Alexander sold the changes as part of the government’s commitment to protect foreign workers from the risk of abuse and exploitation. As I wrote last week, the changes give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Part of the other potential abuse of foreign workers comes from employers who charge workers money for giving them a job offer. The payment may involve a single fee paid up front for the job offer, or a set-off against wages once the worker begins employment. There are laws available to protect the foreign worker from such exploitation.

In British Columbia, employment law is governed in part by the Employment Standards Act. Section 10 of the law prohibits any person from requesting, charging or receiving, directly or indirectly, from a person seeking employment, a payment for employing or obtaining employment for the person seeking employment, or providing information about employers seeking employees.

Workers who have paid such fees may make a complaint to the Employment Standards Branch, which, if not resolved by the worker and their employer may proceed to investigation, mediation or adjudication by the Branch. The Director of Employment Standards can issue a determination for unresolved complaints. The employer may be assessed mandatory penalties for breaking the Act and the Director has powers to collect outstanding wages and penalties. The illegal job fees are treated as unpaid wages owing to the worker.

Some workers have spoken out about the abuse and have complained to the Branch. Last month some Filipino workers at Tim Hortons’ restaurants in Fernie and Blairmore have alleged that the local owners have exploited them by forcing repayment of overtime wages. A year earlier a group of Mexican workers complained to the BC Human Rights Tribunal with allegations of discrimination and mistreatment by a Tim Hortons restaurant in Dawson Creek.

Another requirement of the Employment Standards Act is the licensing of employment agencies. That includes any person who, for a fee, recruits or offers to recruit employees for employers. There are many job recruiters offering to find work for foreign workers who may be visiting Canada or who are abroad. Not all of the job recruiters are licensed to act in British Columbia. Under the law, the employment agency can only charge the employer for finding an employee, though some recruiters exploit workers by charging them a fee.

These rules led to a complaint to the Employment Standards Branch over the practices of an immigration consultant. ICN Consulting Inc., an immigration consulting firm owned by Tatiana and Michael Gorenshtein, charged two live-in caregiver applicants fees to obtain a labour market opinion for their prospective employer and for their work permit applications. The Employment Standards Director determined that the consultant should have been licensed as an employment agency and had unlawfully charged a fee for helping the workers obtain employment.

Meanwhile, the consultant successfully sued one of the workers for unpaid fees in Provincial Court, where a justice of the peace found the consultants contract was not for arranging employment but for providing immigration services. Last September the BC Supreme Court ordered that the issue of whether the consultant’s fee involved a fee for arranging employment be reconsidered by the Employment Standards Tribunal. The case is pending before the Tribunal.

Whether exploitation and abuse of foreign workers will continue to be a significant problem remains to be seen. Workers have remedies under provincial employment and human rights law against abusive employers and recruiters. Investigations under the new federal rules may still depend upon a complaint before action is taken. In either case, the end result is that the foreign worker will lose a job, with no certainty they can get another approved job offer. In those circumstances, when protection from abuse depends on the willingness of workers to make complaints, the potential for abuse still exits.  The recent rule changes do not address that problem.

 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.