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CHAPTER FIVE: WORKER EXPERIENCE

Introduction

This final chapter of Part I, on Canada’s temporary foreign worker programs, will address outstanding aspects of worker experience that demand changes to program stipulations or government practices. In particular, access to benefits and social insurance, and residence will be examined.

Access to Benefits and Social Insurance

Temporary foreign workers are entitled to a range of social programs during their stay in Canada and, in some instances, after their return to their country of origin (see Box 1). Testimony heard by the Committee indicates that, even when informed, workers sometimes have difficulty accessing these benefits. This problem stems, in part, from program requirements such as residence in Canada, and in part from non-compliance by employers. The following anecdotes provide a sample of what the Committee heard:

In December 2005 I was with Javier, a [seasonal agricultural] worker, before, during, and after he had his second full stroke, which was provoked by a workplace accident, something that may have been prevented or minimized had he had access to a CAT scan after his first stroke only days earlier. But because he was a temporary worker, B.C. still had not given him MSP provincial health coverage, so he did not get the appropriate medical attention he needed. His employer… was prepared to send him back as he was, after the first stroke, partially paralyzed at that moment. Only because we stayed with him was he able to get medical attention. However, he is now back in Mexico, permanently disabled for life, without the proper medical attention or financial support.[114]

Alicia is a widow whose husband had chemicals spill on him at work in an Ontario greenhouse. The employer would not even allow him to take a shower after the spill; much less take him for needed medical follow-up. Based on this chemical spill, he had complications from which he later died. Alicia receives no compensation from either the Mexican or Canadian government for this.[115]

Box 1: Temporary Foreign Worker Eligibility for Benefits and Social Insurance

Employment Insurance (EI): Temporary foreign workers and their employers make payments into EI just like Canadian workers. However, they are not usually eligible for basic benefits, due to the number of qualifying hours required or the requirement to be available for work in Canada. Temporary foreign workers are eligible for the parental leave and compassionate care benefits available through EI.

Workers Compensation: Workers compensation is awarded on the basis of evidence of disability from recognized medical practitioners and other care providers. If a worker becomes permanently injured and qualifies for the benefit, it can be collected from anywhere. If a worker is not permanently injured, his or her availability for work in the province of injury may affect on-going benefits.

Canadian Pension Plan (CPP): Temporary foreign workers and their employers pay into CPP just like Canadian workers. Temporary foreign workers are eligible to apply for their CPP benefits from anywhere in the world.

Health Care: Temporary foreign workers are covered by provincial health insurance in most provinces, although coverage varies by the length of the work permit. In some provinces, such as Ontario, British Columbia, Quebec, and New Brunswick, a three month waiting period applies for all new residents. The employer is responsible for ensuring that a foreign worker has medical coverage for periods not covered by provincial insurance.

The requirement that EI recipients be available for work in Canada is one factor that makes it difficult for workers to avail themselves of this insurance during periods of unemployment. Despite this reality, workers and employers make regular EI contributions. The Committee believes that the current mis-match between EI premiums paid and the benefits temporary foreign workers are likely to be able to derive from the program has to be rectified. With the provision of the common emergency fund, as set out in Recommendation 21, there will be no further need for workers to continue paying into EI.

Recommendation 30

The Committee recommends that the Employment Insurance Act be reviewed by the Finance Committee so that consideration be given to the exemption of temporary foreign workers and their employers from making contributions to employment insurance.

Location may also affect the ability of an injured worker to benefit from workers compensation. Sometimes the worker does not have time to have his or her health situation assessed for workers’ compensation before leaving the country (voluntarily or involuntarily). It is very difficult in this situation to have the benefits applied retroactively. One witness spoke about the impact of a different reality of health care in other countries: “the current system does not always take into account the difficulties workers, especially those in remote areas, experience just to get to a qualified doctor or to pay for appointments, exams, and reports.”[116] Regular medical appointments may be required to demonstrate the on-going need for payments.

Workers also may not receive adequate injury or disease compensation because of the current nature of their work permits. If a worker’s injuries do not allow him or her to carry out the type of work required in his or her sector, the worker will not be employable within the parameters of his or her work permit in Canada. Workers compensation would not be available for the long term for a worker in this situation.

The Committee feels that Canada and its provinces and territories should not abandon workers who are injured or who become ill as a result of employment in Canada. Several witnesses noted that temporary foreign workers tend to be employed in sectors with high injury rates, such as farming, construction, and manufacturing.[117] A temporary foreign worker should experience the same care and opportunities as a permanent resident or Canadian citizen injured or diseased at the workplace. The Committee believes that this problem requires specific study by a federal body. In the meantime, we support giving injured and/or sick foreign workers access to a medical exam before they leave Canada. This initial assessment will help identify injuries or disease caused by the workplace and is the first step to appropriate compensation.

Recommendation 31

The Committee recommends that the Government of Canada conduct a review of the adequacy of workers’ compensation for temporary foreign workers and the barriers they and their families encounter in receiving full compensation. The review should include recommendations and a model statute that would address current deficiencies, if required.

Recommendation 32

The Committee recommends that the Government of Canada, through the Interim Federal Health Program, offer injured and/or sick temporary foreign workers a free medical exam before returning to their country of origin.

Location may also affect the rate of application for CPP benefits by temporary foreign workers. While they may be informed of the CPP deduction and benefit when they enter Canada, for most, it will be many years before they will be able to claim their pension. Temporary foreign workers are often in their prime working years, and by the time they are eligible to apply may have lost all contact with Canada. While it is the beneficiary’s responsibility to apply in writing for CPP, Service Canada mails a statement of contribution and other information to a segment of contributors each year. Provided the home address is current and on file, temporary foreign workers may receive this package. The Committee feels that better efforts are required to communicate with workers about their benefits once they have left the country.

Recommendation 33

The Committee recommends that the Government of Canada create a web portal for people who were at one time temporary foreign workers in Canada. This web portal could include information on how to access benefits from outside of the country, including forms and contact information for the relevant government bodies.

Finally, the Committee heard about employers who frustrate worker attempts to obtain benefits through non-cooperation or non-compliance with LMO conditions, such as the requirement to obtain health insurance. Allegations ranged from withholding worker health cards to sending injured workers home without having the opportunity to see a doctor. The Committee believes that our recommendations to improve information provision and employer monitoring will help to diminish these occurrences. However, this may be an area for the recommended temporary foreign worker advisory board to monitor closely.

Residence

Employers have different obligations when it comes to housing temporary foreign workers. As required in connection with their work permit, live-in caregivers must live in their employer’s residence, and seasonal agricultural workers must live in a residence provided by the employer (generally on the farm property). Employers of workers with lower levels of formal training have to ensure that housing is available. It is not unusual for employers to purchase housing and rent it out to fulfill this obligation. Employers of other categories of foreign workers, for instance, highly skilled, have no obligations to provide or assist with housing.

While these program requirements were likely instituted with the good intentions of facilitating access to work and ensuring that workers with limited means had housing, witnesses told the Committee of their adverse consequences. The concerns raised dealt primarily with the adequacy and condition of housing made available, the rates charged for this housing, and the vulnerability of workers required to live on their worksite with their employer. Many witnesses shared stories of housing that was inadequate, crowded, in poor condition, or not suitable as a residence.[118]

The report of the Temporary Worker Advocate in Alberta focused on problems in relation to employer-owned housing rented out to workers with lower levels of formal training. This anecdote, cited in the report, is similar to others shared with the Committee: “Eight [temporary foreign workers] were placed in one 3-bedroom house and each person was deducted $250 biweekly ($4,000 per month); in another, 14 [temporary foreign workers] were placed in one house paying rent of $320 per month ($4,480).”[119]

The Committee heard strong opposition to the requirement for workers to live on their worksite with their employer.[120] Witnesses felt that this requirement, for live-in caregivers in particular, places the workers at risk. Living with the employer may contribute to a caregiver’s isolation, increasing her vulnerability to abuse and limiting her ability to seek assistance.

Witnesses also felt that this provision violates the rights of temporary foreign workers. In particular, witnesses cited the rights to privacy under section 5 of the Quebec Charter, to freedom of association, to equality (because it does not apply to non-migrants) and to freedom and security of the person under the Charter of Rights and Freedoms [121]

The Committee believes that it is unconscionable to require workers to live in accommodations provided by the employer without being sure that these accommodations meet Canadian standards. Rather than making recommendations that would address this oversight, however, the Committee prefers to move away from the live-in or on-site residence requirement altogether. The Committee believes that temporary foreign workers should have the same freedom of residence as Canadians.

Recommendation 34

The Committee recommends that the Government of Canada remove the requirement that individuals with certain work permits live with or on the premises of their employer.

However, there are principles from the current requirements that the Committee feels should be retained. In particular, if housing is scarce (e.g., in a rural area), the employer should be required to ensure suitable housing is secured for the worker.[122] Since temporary workers may have few connections in Canada, they may not be able to secure housing initially or in difficult market conditions. It follows that housing provided should be inspected, to ensure that standards are met. In order for the monitoring teams to carry out the random spot checks suggested in Recommendation 28, information on housing provided should be collected on the “hiring permit” application.

In order to call home to their families in Mexico, they had to sneak off the farm late at night and walk to the nearest pay telephone located a substantial distance away.[123]

Several witnesses who appeared before the Committee told of workers who had great difficulty seeking help because they were located in remote regions (generally on farms) and simply did not have access to a telephone. The Committee notes that such workers would likely also be unable to keep in touch with family and friends in their home countries, which we see as a senseless hardship. Accordingly, we are of the opinion that employers who provide housing for temporary foreign workers should also provide a working telephone for the use of the workers as a standard aspect of basic housing. Long distance charges may be borne by the workers through the use of calling cards or other such services. By requiring employers to confirm on the “hiring permit” application that telephone access is available to workers, and requiring them to provide the phone number, government agents will be able to efficiently monitor employment standards to a certain degree simply by phoning the worker and conducting a brief interview.

Recommendation 35

The Committee recommends that, in respect of those employers who propose to house temporary foreign workers, the Government of Canada grant “hiring permits” only upon the employer undertaking to provide the worker(s) with access to basic phone service.

Recommendation 36

The Committee recommends that the Government of Canada include a housing section on the “hiring permit” application. The employer would need to indicate: 1. If housing will be provided; 2. If it includes telephone access.


[114]         Erika Fuchs, Justicia for Migrant Workers - British Columbia, Committee Evidence, Meeting No. 18, March 31, 2008, 15:55.

[115]         Ibid.

[116]         Janet McLaughlin, individual, April 7, 2008, written brief, p. 5.

[117]         Dr. Jenna Hennebry, individual, April 9, 2008, written brief, p. 4; Dr. Sylvie Gravel, individual, Committee Evidence, Meeting No. 29, April 10, 2008, 9:05.

[118]         For example, the testimony of Catholic Social Services, April 1, 2008; Friends of Farmworkers, April 7, 2008; and the Diocese of London, April 7, 2008.

[119]         The Alberta Federation of Labour, Temporary Foreign Workers: Alberta’s disposable workforce,
The Six-Month Report of the AFL’s Temporary Foreign Worker Advocate, November 2007, p. 12.

[120]         Amnistie Internationionale, written brief, April 10, 2008.

[121]         For example, the testimony of Ligue des droits et libertés, April 10, 2008, the Association des aides familiales du Québec, April 10, 2008, and, as an individual Eugénie Depatie-Pelletier, April 14, 2008.

[122]         Employers should not be responsible to secure housing for accompanying family members.

[123]         United Food and Commercial Workers Canada, National Report on the Status of Migrant Farm Workers in Canada, 2004, p. 12.

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