Separate, but not Equal: Canada’s “Invisible” Workforce

BY KRISTEN SIVERTZ, LAW III

If you have consumed a food product sourced and shipped from anywhere in Canada recently, chances are that at some point in the supply chain one or more of its ingredients passed through the hands of a temporary foreign worker. Every year, thousands of workers enter Canada from overseas to fill low-skilled positions in the agricultural industry. This influx is particularly apparent in smaller communities. Leamington, Ontario, is a town of roughly 30,000. It is also known as the “greenhouse capital of North America” and recently became home to a Mexican consulate to support the thousands Mexican workers that are hired by Leamington employers every season.  Although temporary foreign workers play a significant role in one of Canada’s largest industries, the average Canadian knows very little about what that role is and why it is significant. This article will provide an overview of the legal status of workers under the Seasonal Agricultural Workers Program (SAWP), the constraints that status places on the exercise of their rights, and recent developments in the law that may (or may not) make all the difference.

The Seasonal Agricultural Workers Program (SAWP) began in 1966 as a bilateral agreement between Canada and Jamaica. It was intended to supply enough workers on a seasonal basis to fill positions left empty by Canada’s growing agricultural labour shortage. Between 2008 and 2011, the SAWP sourced over 27,000 workers on average per year from overseas. Currently, there are ­­­fourteen countries that participate in the SAWP: thirteen Caribbean countries and Mexico. Canada and Mexico signed a Memorandum of Understanding (MOU) in 1974. Under NAFTA, the number of workers sourced from Mexico has increased significantly. Mexico now supplies over 50% of workers hired under the SAWP with 15,809 in 2010 alone.

Under this MOU, Mexico is responsible for recruiting a pool of workers based on mutually agreed-upon eligibility criteria. The recruitment website of the Mexican Ministry of Labour and Social Security states that, in addition to citizenship and experience, workers must be between the ages of 22 and 45, married or in common law relationships, from rural areas, and have a third-grade minimum and a tenth-grade maximum level of education.

Canada is responsible for attracting and screening potential employers for the SAWP. The department of Human Resources and Skills Development assesses each application following an analysis of its effect on the labour market, and determines if there is a sufficient supply of local labour to fulfill the employer’s needs. Citizenship and Immigration Canada (CIC) then makes the final decision as to whether an individual worker will be issued a work permit.

The minimal obligations of employers and temporary workers are set out in a series of employment contracts between Canada, Mexico, and the 13 Caribbean countries, which represent one contracting unit. Workers employed in BC fall under a distinct set of employment contracts. These contracts require employers to meet basic provincial employment standards. However, the extent to which provincial labour laws apply to SAWP workers is a contentious issue and one that varies from province to province.

There is significant federal-provincial jurisdictional overlap with respect to foreign workers. Although local employment contracts, workplace safety, health, and seasonal housing standards fall under provincial jurisdiction as per section 92(13) of the Constitution Act, the federal government retains exclusive jurisdiction over “naturalization and aliens” under  section 91(25). This has the effect of placing temporary workers in a legislative limbo wherein neither level of government is willing to claim full responsibility for monitoring the treatment of SAWP workers by their employers and taking disciplinary action where necessary, as told by Kazi Stastna in “Canada’s migrant farm worker system—what works and what’s lacking”, CBC News (February 8, 2012) .

Temporary workers are frequently referred to in academic literature and news media as constituting an “invisible” workforce. Although they may live and work in Canada for up to eight months per year, there are are a number of factors that isolate them from the local community. Their accommodation must be provided by their employer and is typically on the same property as their workplace. There may also be significant language and cultural barriers,  which may make them reluctant to interact with local residents and vice versa. This isolation, compounded by ignorance of their rights and how to exercise them, can leave workers vulnerable to labour and human rights violations by employers. Extreme, but not uncommon stories of deplorable housing conditions, workplace accidents, withheld wages, fraud, and arbitrary deportation routinely make the news, raising serious doubts about “win-win” benefits of the SAWP.

Not surprisingly, it has been far easier to identify and assign blame for the SAWP’s failure to protect workers’ rights than to put forward solutions that work both in theory and in practice.  For instance, greater effort could be made before their departure or upon their arrival in Canada to ensure that workers understand their rights, when they have been violated, and what they can do about it. An independent and anonymous complaints process could also be made available. However, even with a complete understanding of their rights, workers may choose not to exercise them for fear of reprisal from their employers. Under the SAWP, employers may dismiss and repatriate workers with minimal cause and may even blacklist specific workers from the program. Further, given their close living and working relationship, it may be difficult for individual workers to register a complaint without drawing the attention of supervisors and co-workers.

It has been argued that unionization would give workers a stronger voice in negotiation with employers, leading to better living and working conditions. A number of legal actions challenging legislative barriers to collective action have been brought by and on behalf of agricultural workers. In Dunmore v. Ontario (Attorney General), 2001 SCC 94, the majority recognized the positive right of agricultural workers with permanent status or Canadian citizenship to collective action under section 2(d) of the Charter. The Court did not comment on the rights of temporary foreign workers. A second challenge to Ontario legislation was brought forward by the United Food and Commercial Workers Union (UFCW) in 2006, arguing that it barred SAWP workers from exercising their right to collective action. In Ontario v Fraser, 2011 SCC 20, the majority ruled that the Charter only protected the right to a “general process of collective bargaining, not to a particular model of labour relations” (at para 41).

The UFCW had more success before the BC Labour Relations Board. In 2009 and 2010, the UFCW brought two applications for union certification on behalf of temporary workers employed by two BC farms. In the first application (Greenway Farms Ltd, BCLRB B135/2009), the employer challenged the union’s certification under the Labour Code on the basis that its application to a federal program was unconstitutional. The Board concluded that the application of the Code would not conflict with the purposes of the SAWP; rather, it would add to the minimum protections provided by the federal employment contract. In the second application  (Sidhu & Sons Nursery Ltd, BCLRB B26/2010), the Board found that without limits to the scope of collective bargaining, a bargaining unit comprising all SAWP workers at the nursery was not practicable. It allowed the workers to pursue collective agreement rights in respect of matters unique to their interests under the SAWP, e.g. housing, rates of pay, access to medical care, dismissal and repatriation, etc. Although they achieved certification, it was not long before the SAWP workers at both locations voted to decertify. The temporary nature of their work and the continued fear that any evidence of pro-union sentiment would result in their dismissal and repatriation proved insurmountable.

In spite of these set-backs, there may be hope on the horizon. Three SAWP workers from Mexico recently filed a statement of claim in the Ontario Superior Court of Justice against the federal government and their former employer, Tigchelaar Berry Farms Inc (Armina Ligaya, “Mexican farm workers file suit against Canada” (November 24, 2011) CBC Canada). The statement alleges that their employer terminated and repatriated them without reason, thereby infringing their rights under section 7 of the Charter and sections 1(a) and 2(e) of the Canadian Bill of Rights. If the court rules in the workers’ favour, it may have a significant impact on SAWP workers’ ability to act collectively by limiting employers’ ability to arbitrarily repatriate and blacklist individual workers. However, it bears considering that any victory achieved by the plaintiffs in this case could be undermined by SAWP workers’ limited access to the Canadian justice system due to geographical barriers and the prohibitive cost of retaining counsel.  The plaintiffs in this case are fortunate to be receiving pro bono representation, but the vast majority of SAWP workers that seek to defend their newly won rights will not be so lucky.

From a purely administrative and economic perspective, the SAWP is a highly successful international labour mobility program. It addresses the low-skilled labour shortage in Canada’s multi-billion dollar agricultural industry, while providing workers with a higher salary than they would otherwise receive for the same work in their home countries. However, from a more extreme labour and human rights perspective, the SAWP provides an inexpensive source of foreign workers to fill dangerous, poorly compensated, and often degrading positions that few—if any—permanent residents or citizens of Canada would accept. The number of temporary workers in Canada is growing every year, not only in the agricultural industry, but also in customer service and information technology, among other areas. Far from being “invisible”, temporary foreign labour is well on its way to becoming a permanent feature of the Canadian labour market (see CIC annual statistics 2002-2011). An important question that remains unanswered is whether the economic benefits of the SAWP are worth the less tangible costs to the workers themselves and to Canada’s international reputation in the field of labour and human rights.

I would like to thank Robert Russo, PhD, UBC Law 2012, for his research and guidance on this topic.

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