By: Japreet Lehal

A Step in the Right Direction to Protect Migrant Workers

In November 2018, the provincial government passed the Temporary Foreign Worker Protection Act (the “Act”). It was introduced by the BC Minister of Labour, Harry Bains. The regulations will be introduced this year and we look forward to seeing how this legislation is implemented. The legislation is intended to ensure that recruiters and employers are regulated and prevented from exploiting temporary foreign workers (“TFWs”).

They are employed in industries such as agriculture, hospitality, construction and in care-giving roles. Thousands are employed in British Columbia. In 2017, there were 16,865 TFWs here.

Migrant workers face numerous hardships. A March 2018 report, Envisioning Justice for Migrant Workers: A Legal Needs Assessment, by the Migrant Workers Centre outlines many of the issues they face. In one case, an employee was fired simply for pointing out that the duties she was asked to do were not mentioned in her employment contract (page 33).

A migrant worker expressed concerns about how raising a voice against injustice in the workplace can even lead to homelessness (page 36):

“Most caregivers, we are afraid to file a complaint about our rights because if something happens then we are on the streets. It is not the same thing like if I work for a company but I have my own house and I go home everyday, if I make a complaint and get fired I would still have a house. For us, if we make a complaint and get fired it’s like ‘sorry you have to sleep on the streets so I think that most people don’t complain even if the situation is bad because where are you going to live. I have talked to a lot of people who are in bad situations with their employers and people tell them that they have to report it. But if you need to find a new employer it can take like 4 to 6 months to do all the paperwork and where are you going to live in that time and so they are scared (Focus Group 1, July 28, 2017).”

Under the new law, a foreign worker recruiter will have to apply for a license. A licensed foreign worker recruiter registry and registered employer registry will be introduced, requiring online registration by recruiters and employers. Recruiters and employers are prohibited from misleading workers, taking and holding their passports, mispresenting work opportunities, making threats of deportation for no lawful reason, and threatening workers if they complain or are involved in an investigation against their employer (Section 20).

An employer or recruiter is not allowed to charge the employee for the recruitment services, either directly or indirectly (Section 21). There are disclosure requirements if the recruiter is referring the foreign national to someone else and is receiving some sort of fee or compensation for this. The recruiter needs to put this in writing to let the foreign national know (Section 22). If the recruiter is providing immigration services as well as providing an employer with recruitment services, then there are certain requirements that this recruiter needs to meet, discussed in further detail in Section 23 of the Act.

A complaint to the Director has to be made within two years of the contravention being alleged and it has to be delivered in writing to an Employment Standards Branch office, as per Section 33 (2). The Director can also start an investigation, regardless of whether the Director received a complaint or not (Section 32).

A contravention of this Act can lead to a monetary fine or even jail time. An individual can be fined up to $50 000 or imprisonment up to one year (Section 80(2)(a)). A corporation can be fined up to $100 000 (Section 80(2)(b)).

I will now turn to some cases that have involved TFWs and workplace law.

Dominguez v. Northland Properties Corp. (c.o.b. Denny’s Restaurants), [2012] B.C.J. No. 443, BCSC 328 was a class proceeding by 75 people, which was certified against the defendants. The plaintiff claimed that the defendants did not provide them with overtime pay and did not give them the amount of work they were promised. The plaintiffs also alleged that the defendants did not give them money to travel from their home country and the agency recruitment fees (para. 2).

A settlement in the amount of $1.425 million was made in 2013 (Dominguez v. Northland Properties Corp. (c.o.b. Denny’s Restaurants), [2013] B.C.J. No. 527, BCSC 468). The terms of the settlement agreement included: work hours, overtime, airfare costs, agency fees, donations and release. The donations were to be made to an organization helping temporary foreign workers and a children’s charity (para. 17).

In 2017, a Determination was issued by a delegate of the Director of Employment Standards, which was about an individual, Mr. Brijesh Mohan, who was in Canada as a TFW and was working as a cook for a restaurant. He was not paid overtime pay, and his employer contravened other sections of the Employment Standards Act as well. He was awarded $32,702.43. His employer also had to pay administrative penalties of $3,000.00. Paragraph 17 of Right Choice Products Inc. (Re), 2018 BCEST 56 states:

“The Director made several findings of fact: that Mr. Mohan worked 12 hours a day, 6 days a week, commencing November 9, 2016, and ending, but not including, February 16, 2017; that Mr. Mohan was not paid for all regular hours worked; that Mr. Mohan worked four hours of overtime every Tuesday through Saturday for which he received no overtime pay; that Mr. Mohan qualified for and worked three statutory holidays for which he was not paid in the manner required under the ESA; that Mr. Mohan was owed 4% annual vacation pay on wages found owing to him; that Mr. Mohan voluntarily resigned employment on February 16, 2017, and was not owed compensation for length of service; and that RCP contravened section 8 of the ESA, misrepresenting wages and hours of work in order to induce Mr. Mohan to accept employment with them resulting in compensable losses to Mr. Mohan.”

The 2018 British Columbia Court of Appeal decision in Basyal v. Mac’s Convenience Stores Inc., [2018] B.C.J. No. 1086, BCCA 235 was an appeal of a certification order under the Class Proceedings Act. The case involved TFWs who alleged that Mac’s breached their contract and did not provide them with the work they were promised or “…in other cases any work at all…” (para. 1). The certification against the immigration companies was confirmed for breach of fiduciary duty. The plaintiffs were given the chance to make amendments to their pleadings for other aspects (paras. 77-80). In paragraph 80, Madam Justice Mary V. Newbury stated that “…As for the remaining causes of action, I would stay the action pending the plaintiffs’ amendment of the NOCC such that the material facts relating to each cause and to the existence of an agency relationship (if counsel chooses to pursue that allegation) are clearly stated…”

The journal article and report mentioned below delves deeper into the problems faced by migrant workers and provides further insights into how they can be supported.

A 2017 journal article, The Inaccessibility of Justice for Migrant Workers: A Capabilities-Based Perspective, by Bethany Hastie, an Assistant Professor at the Peter A. Allard School of Law, University of British Columbia, notes the various hardships that migrant workers face. It is noted that even though migrant workers face abuse and exploitation by employers, the number of legal cases is not high because of a lack of access to justice. A capabilities approach to justice, when addressing issues faced by migrant workers, is appropriate. The capabilities approach says that legal rights should not just be limited to what is written in the law itself, but one also has to examine whether the people who the law is meant to benefit are actually able to access it or not. The question is whether the people are able to access the laws to advocate for their rights (pages 21-22 and 24-25).

Migrant workers face numerous hardships and barriers in accessing justice and asserting their legal rights. Because of a lack of legal resources in their language, some may not know about their legal rights (pages 28-29). As noted on page 29:

“…the unfamiliarity or lack of knowledge about applicable laws and rights, where to seek assistance or advice, and even language barriers, can combine to create daunting obstacles for migrant workers who may desire to seek out information or help (referencing footnote 43)…”

The author of the article also notes, however, that access to knowledge about their legal rights is not the only barrier to accessing justice for migrant workers. There are deeper issues that prevent workers from enforcing their rights, such as fear that they may not be called back to their job. In some situations, despite knowing about their legal rights, they face an even bigger systemic issue. This is about barriers in the system which can lead to problems turning knowledge of legal rights into “valued functionings” (pages 29-30).

Migrant workers face a challenging situation, as their work permits under the Temporary Foreign Worker Program (TFWP) streams are tied to one specific employer. While in theory, they can change employers, this is actually quite difficult in reality (pages 31-32):

“…The employer-specific work permit thus creates significant dependence on an employer, and can prevent a migrant worker from freely circulating in the labour market (referencing footnote 52). This, in turn, produces a strong disincentive for migrant workers to assert their rights in the workplace, or in other words, creates a barrier to effective conversion of formal rights into substantive realization of just conditions of work in practice…”

A study participant noted on page 33:

“Well, I feel that the first barrier is the fact that the – the dilemma for the worker. This doesn’t look good. Should I endure it? To what extent? What happens if I seek help? While the employer is constantly saying, ‘Well, either you do this or you go back to where you came from.’ So the threat is – verbalized or not – it’s always on the horizon of the temporary foreign worker. He or she knows that they have to come back eventually, but every day they stay here, it’s a financial difference that has an impact on their lives and their families. So that even if they are not paid well, even if they are paid close to nothing, they still have the hope that eventually they are going to be paid. […] So the dilemma and at what point they reach the limit of their endurance, how much I’m going to support this, to endure this abuse […]”

In a complaints-drive system, a migrant worker has to spend lots of time and resources, which is not feasible for workers here on a temporary basis. Furthermore, the complainant also worries about his/her future and immigration status. The literature states that as “proactive investigations and monitoring” has decreased, so has “voluntary employer compliance” (pages 34-35).

Complainants also worry that coming forward with a complaint can identify them to the employer and put their current and future employment and income at risk (page 36).

The TFWP regulations and employer-specific work permit can become the root problem for many other issues. Many workers are hesitant to raise a voice because even though there are laws on paper, it is difficult to turn them into “…meaningful and just working conditions, and into realizable remedies or compensation for workplace rights violations…” The remedial options are quite limited as well. While workers could receive compensation for the abuse they have suffered, it is not likely that they will receive “longer-term employment and administrative security” (pages 36-37). At page 37, it is noted:

“For migrant workers who face rights violations in the workplace, this requires not only compensation, but considering how mechanisms for justice can address the underlying issues concerning security of employment, administrative status, and other important values underlying migrant workers’ experiences.”

It is important to provide information and resources about legal rights, but further work is needed to support migrant workers. There are many problems with the employer-specific work permit (pages 37-38):

“…Rather, an exploration of the employer-specific work permit establishes the deeper underlying issues that effectively disable migrant workers from substantively accessing the rights which they are entitled to in practice. This article has explored how the bonded nature of the work permit constrains migrant workers’ capabilities to access justice. The work permit system negatively impacts the ability for migrant workers to convert their legal rights into just conditions of work by creating a distinct and exacerbated power imbalance in the employment relationship. This, in turn, creates strong disincentives to assert rights or utilize vehicles for legal remedy when considered in light of the wider context in which migrant labour occurs, and the underlying motivations and needs of migrant workers participating under the TFWP. As a result, the legal system and access to justice for migrant workers who face abusive or unlawful treatment appear to be far too often out of reach.”

The author of the journal article also mentioned another important point in regards to the usage of terminology in her article (footnote 1 on page 20):

“This article will use the term ‘migrant worker’ to refer to participants under Canada’s Temporary Foreign Workers Program [TFWP], as opposed to the technical label of ‘temporary foreign worker’ which propels forward the ‘otherness’ of this population.”

I have also tried to minimize the use of this term in the blog post.

The Canadian Centre for Policy Alternatives report of August 30, 2018, titled, Building a Stronger Foundation of Basic Workplace Rights for BC Workers, suggests further measures that can be taken to help TFWs. In regards to farmworkers, the report states on pages 14 and 15:

“…In addition to the recommendations already made above for targeted proactive enforcement in the agricultural sector and reintroducing the entitlements to statutory holidays, annual vacation, hours of work and overtime pay for farmworkers, BC employment standards must be strengthened as follows:

23. Mandate that workplace rights are posted in the workplaces of all farmworkers in appropriate languages, including the native language of all migrant farmworkers employed under the Seasonal Agricultural Workers’ Program.

24. Establish an independent review of the ESA in relation to farmworkers, including representation from workers and their advocates. The review would make recommendations for improving the working conditions of farmworkers and develop coordinating mechanisms with other agencies that oversee migrant agricultural programs to fill the jurisdictional void that exists in enforcing the rights of migrant workers. It would include a review of the farm labour contracting system, notorious for its violations of employment standards, safety regulations and for shoddy recordkeeping practices, which make it virtually impossible for workers to seek redress when their rights are violated…”

It is also suggested that the complaint process rapidly address the issues faced by TFWs (page 16):

“…28. Expedite the investigation of complaints by temporary foreign workers to address potential reprisals and unjust dismissal that would force the worker to leave Canada before their complaint is handled…”

The introduction of the Temporary Foreign Worker Protection Act is a step in the right direction. Further efforts also need to be made at both the federal and provincial level to protect migrant workers, as noted above. We look forward to seeing how the Act is implemented and how it can address the many hardships that temporary foreign workers face.

If you are an employer or an employee seeking advice regarding your employment relationship, the Workplace Law Practice Group at Kane Shannon Weiler LLP would be pleased to speak with you. Please contact us at [email protected] or 604-746-4357.