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On October 29, the BC provincial government introduced the “Temporary Foreign Worker Protection Act”. If the proposed law is passed, it will create a registry of employers of Temporary Foreign Workers, or TFWs. The purpose of the registry is to make it illegal to employ TFW’s without the registration. For example, if there is a breach of TFW requirements (including all workplace protections in place in BC), then the registration will be cancelled. Since registration is required to employ TFWs, cancelling the registration will remove the ability to employ TFWs from that particular employer.
The Temporary Foreign Worker (TFW) Program allows access to foreign workers for employers who demonstrate a shortage of Canadian workers for available jobs. There are several parts to the program, but the most important for agriculture are:
- The Seasonal Agricultural Worker Program (SAWP)
- The Low Skill Program - Ag Stream
Should employees, whether TFW or Canadian, be protected in the workplace? Absolutely! As BCFGA President Pinder Dhaliwal recently pointed out at a grower meeting, there are currently many, many protections, both legislative and organizational, for SAWP foreign workers in BC. Here are a few:
- Employment Standards Act regulates workers pay and there are provisions for workplace audits and inspection of records. A team inspects farm worksites every summer (in 2018 focusing on the Fraser Valley, but in 2017 active in the Okanagan). Monetary penalties may be assessed, and these penalties increase rapidly for repeated non-compliance.
- WorkSafe BC regulates workplace safety. Local inspectors are authorized to inspect farm worksites for compliance to the Workplace Safety Regulations. Penalties can be assessed.
- The Pest Management Regulatory Agency is authorized to take samples for residue testing and observe workplace safety with regard to the use of pesticides, especially re-entry intervals and following other pesticide label instructions. Penalties may be assessed for non-compliance.
- The Consulate and Liaison Services monitor compliance with BC and Canadian law, and work to bring any issues into compliance, with removal of workers possible in extreme cases.
- Integrity Service Branch of Employment and Social Development Canada (ESDC) does unannounced visits to the workplace to ensure compliance with standard employment agreements and the requirements of the SAWP or AG Stream programs. Penalties may be assessed for non-compliance, or employers banned from the TFW programs.
- For SAWP and the Ag Stream Programs, housing is inspected by independent inspectors every year to meet a housing standard. If housing standards are not met, even for conditions which might be rectified easily with proof of compliance later (e.g. new batteries required in the smoke detector), then the application is declined.
While employer associations (such as the BC Fruit Growers’ Association and Western Agricultural Labour Initiative) seek to make these regulations sensible, we clearly recognize that program standards are needed for the credibility and availability of the program to be maintained.
The regulations are there to ensure that workplaces are safe and fair. However, where we had one Employment Standards Act (ESA), with the ability to audit and assess penalties for non-compliance, we now have ESA plus the Temporary Foreign Worker Protection Act. Why the duplication? How will this result in higher compliance than simply providing education and enforcing the original workplace regulations? These questions has not yet been answered directly by government.
Another question is “What will be the administrative linkages between ESA and whoever is going to administer the Temporary Foreign Workers Act?” We do not know. All the information collected by the new registry is already available to the government, so obtaining previously unavailable information is not the purpose. Although the registry provides the power to deny the registration of an employer and therefore deny workers where there is non-compliance, this power already resides with Service Canada and with consular and liaison services of foreign governments. Employer associations’ main question to government: “Is the extra red tape going to result in increased compliance, or is it just another layer of bureaucracy with resources that could be better expended in education of employers and employees on workplace regulations”? We are also not clear whether the new legislation will apply to the “backpacker” program which sees open work permits provided to a limited number of youth coming to Canada to travel and work.
The BCFGA is interested in increasing the number of foreign workers under the International Experience Program - or “IEP”, also called the “backpacker program” - which allows a number of Canadian youth to travel and work in foreign countries and in exchange a number of the foreign country’s youth to travel and work in Canada. I sometimes refer to the IEP as an exchange program, as there are limited numbers of work permits issued for a particular country. Unfortunately, the foreign youth have to apply for the Work Permit before their arrival in Canada. As with most youth, the awareness of bureaucratic requirements is low, so many backpackers arrive without the Work Permit. The BCFGA has proposed that IEP Work Permits be issued after arrival in Canada, which is already the practice in New Zealand.
A final issue with the government’s registry of TFW employers is privacy of information. The principle is that information should not be collected and retained by government unless there is a use for the information. The fear is that retaining information that is not needed will result in a needless exposure to a risk that the information will be improperly released or stolen. In a time when governments and businesses are thinking twice before collecting and retaining personal information, the Temporary Foreign Worker Program registry has not demonstrated adequately the rationale to collect and maintain information that already resides elsewhere in government, and for a purpose which duplicates existing regulation.
In summary, the BCFGA remains committed to protecting the ongoing availability TFW programs by seeking compliance with workplace regulations. A robust education program is the best place for government to spend scarce tax dollars in order to improve compliance with workplace regulations. The BCFGA would like to see government focus on an educational approach combined with existing regulation and inspection/compliance efforts. Growers already deal with enough red tape.