Conservatives drop criminal employer ban in foreign worker rules

OTTAWA—Labour and business stakeholders say they’re baffled by the Conservative government’s recent removal of provisions from its Temporary Foreign Worker Program that would have barred criminal employers from participating.

In a notice on New Year’s Day, the government said its original proposals aimed at employers convicted of human trafficking, sexually assaulting an employee or causing the death of a worker were “too rigid and cumbersome.”

And so it removed them from its crackdown on abusers of the program.

“Instead, the amendments introduce other measures that achieve the objective of ensuring a safe workplace for TFWs (temporary foreign workers) and that allow for a more timely ability to deal with abuse,” the government said.

“Accordingly, the amendments include a condition on employers to make reasonable efforts to provide a workplace free of abuse, including physical, sexual, psychological, and financial abuse.”

The changes, meantime, have left stakeholders scratching their heads.

“I don’t really know where that came from, because we don’t take any issue with those provisions—we’re very supportive of measures that are related to abuses of the program,” Daniel Kelly, head of the Canadian Federation of Independent Business (CFIB), said.

Kelly speculated that perhaps the provisions were removed due to legal considerations, and not because employers complained.

“I don’t get the sense this was done as a result of anyone lobbying; my hunch was this was more to ensure that it was legally compliant,” he said.

An official for the Employment and Social Development Department, however, said any suggestions that the move had weakened protections for temporary foreign workers was incorrect.

In fact, said Pamela Wong, the final regulations are every bit as effective as the draft rules first introduced last spring, and will be included in upcoming operational guidelines on temporary foreign workers.

“Let’s be clear,” Wong said in an email.

“Employers who engage in serious criminal activity, like human trafficking, sexual assault or conduct leading to the death of an employee are by definition creating an unsafe work environment, and will not be able to use the Temporary Foreign Worker Program.”

The measures were part of tough new regulations aimed at quelling fears that foreigners are snatching jobs from Canadians.

The spate of rules kicked in Dec. 31, empowering government officials to conduct workplace inspections without warrants and to blacklist employers who fail to comply.

The regulations also allow government officials to interview foreign workers about their working conditions and to demand documentation from employers proving they’ve complied with the Temporary Foreign Worker Program.

The government will also no longer accept applications from employers looking to hire temporary foreign workers in the sex-trade industry.

That rule is aimed at protecting vulnerable workers like strippers and exotic dancers.

Those measures have been applauded by labour groups.

The quiet removal of provisions aimed at companies convicted of crimes, therefore, came as a significant surprise to organizations such as the Canadian Labour Congress, which the government has consulted on other changes to the Temporary Foreign Worker Program.

“It’s completely bizarre,” said Angella MacEwen, a senior economist at the organization who quibbled with the government’s apparent stance that the provisions were redundant.

“They’ve watered it down, which is completely unacceptable. It’s not like we convict employers in this country very often—the bar to convict employers in the first place is very high, so it doesn’t make a lot of sense.”

She agreed that legal considerations might be at play on behalf of the government.

“It might be something that the department itself found that it wouldn’t be able to enforce it or it didn’t have the resources to enforce, because it doesn’t seem like a popular move for anyone,” MacEwen said.

The crackdown on temporary foreign workers followed last spring’s uproar over laid-off workers at RBC being ordered to train their replacements, including those who came to Canada on TFW permits.

A British Columbia mining company was also in hot water for hiring more than 200 Chinese workers after an ad seeking Mandarin-speakers failed to attract Canadian applicants.

The CFIB accuses the government of taking aim at big corporate abusers with its flurry of new rules while small businesses get caught in the crossfire with a Temporary Foreign Workers Program now bogged down in red tape and ballooning fees.

Among the new restrictions is the elimination of the so-called 15 per cent rule, which allowed companies to pay temporary foreign workers 15 per cent less than the going rate for any given position as long as the employer had paid Canadians that lower rate as well.

Ottawa also began charging a $275 fee for companies applying for a TFW permit, and required employers to prove they’d made every effort to fill their openings with Canadians before turning to foreign workers.

Provinces such as Saskatchewan and Alberta have been quietly urging the government for months to ease up on the restrictions.

Saskatchewan Premier Brad Wall even made a face-to-face appeal to Prime Minister Stephen Harper on the issue in November.

Boom provinces say their economies are hungry for the type of skilled workers that aren’t readily available in Canada due to a skills shortage that the Canadian Chamber of Commerce calls one of the top barriers to Canadian competitiveness.