These are the times that try lawyers’ souls. In late April — stung by a series of scandals — Employment Minister Jason Kenney staggered the legal community by imposing a blanket moratorium on the food service industry’s access to the Temporary Foreign Worker program.
Since then, Kenney has been promising root-and-branch reform of the TFW program — actually an umbrella term for a group of programs that allow companies to import temporary labour, ranging from highly-skilled specialists and live-in caregivers to low-skill, low-wage service industry workers in labour markets where such jobs are going begging.
It’s the low-skill end of the TFW program that’s been giving the minister headaches. Critics say it’s ripe for abuse and distorts local labour markets. Proponents say certain businesses — mostly service-sector and mostly in tight Western Canadian labour markets — will be out of business in a year’s time if the low-skilled TFW program is killed outright.
Caught in the middle are people like Betsy Kane, co-founder of the firm Capelle Kane and one of the top immigration lawyers in the National Capital region. She says Ottawa’s recent moves on the TFW program could serve as a seminar on how not to design policy.
“Everything we do these days requires us to check, double-check and triple-check to make sure the rules haven’t changed when we weren’t looking,” she says.
“It’s not just about the law. The unfortunate way the government is dealing with this program means that we now have to be mindful of every knee-jerk reaction and statement. Policy changes hour by hour, and you have to struggle to keep up.”
Nobody questions the fact that Ottawa had to do something. Bad news was piling up. A temporary foreign worker in B.C.’s Lower Mainland reported that he and his colleagues were working hundreds of hours without pay, under threat of deportation. A Saskatchewan restaurant was accused of replacing long-term staff with temporary foreign workers. The criticisms were coming from all directions, even caucus; three Conservative MPs wrote letters complaining of apparent violations of program rules.
Worst of all, from the government’s point of view, was a highly critical April report from the C.D. Howe Institute. It stated that changes easing hiring requirements for temporary foreign workers between 2002 and 2013 — a period which saw the number of TFWs explode from roughly 100,000 to 338,000 — actually drove up unemployment rates in certain sectors. The federal government — scrambling in the wake of the scandal over the Royal Bank of Canada’s use of temporary foreign workers — last year dropped a rule that allowed employers to pay TFWs as much as 15 per cent less than the prevailing wage, and imposed a fee on employers applying to government for a Labour Market Opinion (LMO), the first step toward getting permission to hire a TFW. It also suspended an accelerated process for obtaining an LMO.
So far, so good; many lawyers working in the sector saw last year’s changes as necessary and overdue. But the sudden imposition of the moratorium — which put the work permit status of thousands of TFWs in limbo — and Ottawa’s decision to blacklist a handful of businesses accused of abusing the program, had many lawyers wondering whether the government had a plan … or if panic had taken over.
“The changes they’ve made so far seem to be in reaction to negative news reports, rather than the result of a deeper analysis,” said Sindura Dar, an associate and immigration law specialist at Bellissimo Law Group in Toronto.
“We have a great many clients in the food service industry who are frustrated and losing money because their LMO applications have been suspended.”
“Look at how Kenney handled changes to the Canada Experience Class,” says Kane. The Canada Experience Class is a program that allows TFWs to move to permanent resident status.
“Overnight, he declared six occupations no longer qualify for the Canada Experience Class. The minister decided too many people were applying, and that was that. It’s all about the minister’s feelings now, his knee-jerk reaction to the politics of the day.”
What’s next? In a recent speech, Kenney offered a fierce defence of the program — but he was talking mainly about highly-skilled TFWs, while suggesting that the use of low-skill workers in low-wage industries had become a troublesome “business model.”
So it surprised no one to see media outlets reporting in mid-May that Kenney was looking at imposing higher fees on businesses seeking to access the TFW program and forcing employers to pay TFWs higher wages — something which could price the program out of reach for much of the food service and hospitality sector.
The idea strikes terror into the heart of the restaurant industry. “It can’t happen,” says Joyce Reynolds, executive VP government affairs at Restaurants Canada. “You’d see hundreds of businesses fold. We’re already seeing Canadian workers being laid off because restaurants can’t get enough staff to run a shift.
“We’re a sector which is already getting heavily poached by industry and the energy sector because we can’t compete with recruiters offering $20 and $30 an hour. If we start some sort of wage-hike spiral, we’re not going to solve the basic problem.”
“Perhaps it’s time to shut the program down, apart from construction trades and highly-skilled trades and professions,” says Julie Taub, an immigration lawyer who has testified before Commons committees. “The vast majority of TFWs aren’t in those categories, so I can’t believe we can’t find Canadians to work in those jobs.”
Others say the only way to fix the low-skill program is for government to ramp up monitoring to accommodate the fact that low-skilled TFWs — who tend to be tied to their employers by the terms of an LMO and may live in fear of deportation — are unlikely to complain of being exploited.
“At the very least, there needs to be serious oversight of LMO applications and follow-up on compliance,” says Fay Faraday, an Osgoode Law prof who published a highly critical report on the program in April. She cites Manitoba’s approach to the program as a model; there, foreign labour recruiters and TFW employers must be registered with the province so that their compliance with program rules can be reviewed.
“They do sweeps of TFW employers,” she says. “One hundred per cent of their enforcement comes through these sweeps. Not a single worker has come forward.”
In the meantime, the whole TFW legal architecture remains in flux. Taub says immigration lawyers “can expect to see their client base shrink. They’re the ones doing the LMO and work permit applications, and there are going to be fewer of them.
“Personally I’d be telling any prospective employer I don’t want to take their money, because I see a very slim chance of success.”
Doug Beazley is an Ottawa-based journalist.