Citizenship and Immigration Committee on May 14th, 2009

[The Chair, Conservative, David Tilson]

Gentlemen, I want to welcome you to the committee. I won't repeat what Mr. Dykstra said; we do apologize for the time problem.

I assume, hopefully rightfully, that you have written introductory presentations. If you could make those available to the clerk, that would be appreciated. He will distribute those to the committee members.

We are going to jump right into questions. I am going to suggest it's the same as the last time, five-minute rounds.

Ms. Mendes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Good morning, and thank you very much for being with us this morning.

Besides very general questions, since I haven't read at all what you have presented to us, have you had time to look at the report that this committee tabled in the House last week? Do you have any impressions on it, any suggestions from our recommendations? I would appreciate hearing from you, if you've had time to look at it.

[Hassan Yussuff, Secretary-Treasurer, Canadian Labour Congress]

Yes, we have had some time to look at the committee's work and recommendations. We appreciate much of what the committee has said in regard to the many points we have been articulating, especially on the temporary foreign workers program, that need to be initiated.

Of course, there are some gaps in terms of some specific recommendations that the committee has made. There are a number of recommendations we would concur with.

Given the subject matter you were dealing with prior to us, the broader argument should be made that what is really lacking in the temporary foreign workers program, as it is, along with the live-in caregivers program, is the consistent application of regulatory regimes across the country. It does not exist, and despite all of the debate and dialogue you've been having here, it still does not exist. I think we need to put our minds to how we can facilitate that process to happen as soon as possible.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Would you agree that applies to the refugee situation, the lack of consistent criteria?

[Hassan Yussuff]

At least on the refugee situation it is purely the role of the federal government in regard to the process for hearings and determination. That does not fall within the provincial jurisdictions. Whatever needs to be done there is purely within the federal government, and it is much easier for them to fix the deficiencies and the flaws.

Certainly within the temporary foreign workers program, the live-in caregivers program, and also for undocumented workers, the federal government certainly has a larger role to play in assisting and facilitating the province to do what I think is right in many of the recommendations the committee has made.

[Peter Leibovitch, Liaison Officer with Independent Workers Association, District 6, United Steelworkers]

I just wanted to add something based on the recommendations.

I'm obviously with the United Steelworkers, and I work with the Independent Workers Association.

When we came together, we were very close to Juana Tejada. She was the first member of our organization, actually, when we set up last year. We did a lot of work trying to change the law on the second medical. I want to get rid of the second medical. I want to compliment the committee for putting that as a recommendation. And I'm assuming that all parties are in agreement with changing the law so that live-in caregivers don't have to go through a second medical.

We did make a bunch of submissions. I want to say something, and I'm going to pass it to Rafael Fabregas after me, who was Juana's lawyer and has been working on many of the immigration issues here.

It is interesting that we need more regulatory protection for live-in caregivers. We need a situation where they're treated properly. At the same time, the one thing that wasn't dealt with in the report, and I want to bring it up, because it's not about individual employers, is the fact that live-in caregivers come in as temporary residents. As a result of that, they will always be vulnerable.

Even if you bring regulatory controls, even if you put in 1-800 numbers, even if you have laws that sound good on the books, when you're in a temporary situation and you are by yourself, and you're basically in what you would say is an indentured situation because you're living with your employers, you depend completely on them, whether those employers are being fair to you or not. To take a chance to complain, when you're in another country, in a different situation, and would maybe lose your right to stay in this country or lose your job, whatever.... You're continuously exposed.

At the end of the day, we believe strongly that we have to get back to landed status for live-in caregivers. If they had landed status, you wouldn't need all these other laws to protect their rights. Unfortunately, the temporary migrant worker program is a form of indentured labour. We got rid of indentured labour over a hundred years ago, and now we're back at it.

I haven't seen movement on that. It wasn't dealt with as a recommendation. As far as I know, only the NDP report agreed to that. I might be wrong about that. No, I'm not wrong. It was the only report I saw that agreed to that position. I would ask the other parties to take a look at that, because I think, at the end of the day, that eliminates abuse.

[The Chair, Conservative, David Tilson]

Monsieur St-Cyr.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Thank you, Mr. Chairman.

I'm going to continue talking about the report we adopted last week. It contains a series of recommendations on the mechanisms that should be adopted to issue working permits to temporary foreign workers. Among other things, it recommends a way of ensuring that those temporary foreign workers ultimately do not become cheap labour, that the current working conditions in the market are met and that wages and working conditions are not lowered.

I imagine the workers' representatives are as concerned as I am about this. On the whole, are you satisfied with the recommendations that were made in this area?

[Hassan Yussuff]

There are some recommendations we would concur with. Again, coming back to what I think would be the mechanism for protecting temporary foreign workers, which is the issue I think the committee has dealt with.... It is under provincial jurisdiction. We have no regulatory regime, except for Manitoba, which has now brought in legislation, to specifically deal with the situation. In many parts of the country we have no specific mechanism to deal with specific investigations. We have no process to protect these workers, because they do fall under provincial jurisdiction. Despite the fact that the federal government is one arm of government that issues a permit for temporary workers to come here, we don't have an agreement with the provinces on how the provinces will protect these workers. There's a big gap in terms of the regulatory regime right across the country.

More importantly, if we were to achieve a regulatory regime, we'd need an enforcement mechanism. As has been stated by my colleague just recently, we need to ensure that these workers aren't going to be intimidated and afraid to speak up to demand that their rights be protected. Again, it is not very clear how that will happen, because it is within provincial jurisdiction.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

As you emphasized, this is a provincial jurisdiction. That's why this report does not contain any mechanisms. As we are in Parliament, we concern ourselves with matters that come under federal jurisdiction. All parties must make submissions to the government of their province for it to establish protection mechanisms. It is not up to the federal government to address this kind of jurisdiction, particularly since there are a number of things that it is not doing to protect foreign workers, both temporary and otherwise.

I thought I understood that the enforcement mechanism wasn't a problem for you.

You talked about a province that prohibited recruitment agencies from billing fees to temporary foreign workers who come to Canada. And you said that it must be solely the employer who pays those fees.

During our consultations, we suggested transferring to the employer responsibility for recovering those illegally collected fees. In other words, workers who have been forced to pay fees to an agency, even before leaving Canada, whereas that is illegal, could ask their employer, on arrival, to be reimbursed for those fees. Then the employers would be responsible for telling the agencies they have broken the rules and that they want to be reimbursed for what they've had to pay.

Would you be in favour of that kind of mechanism?

[Hassan Yussuff]

Well, it's easier said than done. The worker certainly doesn't have the power, nor should they raise objection to paying fees, which might further jeopardize their status to remain in the country, and for that matter, remain an employee of that employer. So it's critical that we have a clear mechanism to ensure that in no way, shape, or form should the worker be forced to pay a fee in the context of coming here to work as a temporary foreign worker. The burden should be on the employer. More importantly, if it should be investigated and found that there are fees being paid, I think the employer should bear the responsibility of reimbursing those workers.

But again, we need a mechanism to ensure that would happen. In the absence of a provincial regulatory regime, we're just talking in circles. It's not going to resolve in the workers' being put in a better position unless you have some mechanism to enforce such a regulatory regime.

[The Chair, Conservative, David Tilson]

Merci.

Ms. Mathyssen, you have five minutes.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you, Mr. Chair.

Thank you very much to the witnesses for being here today. I appreciate the expertise that you bring to this.

We talked about the federal government's having an obligation to make sure that migrant workers and live-in caregivers are better protected. I've read through some of your material. You have advocated that there be health and safety coverage, better housing standards, minimum wage, the right to collective bargaining, a complete orientation, and overtime--at least time and a half--for those people compelled to work beyond the normal work week. Could you comment on that? In addition, I understand you are calling for landed status for migrant workers.

Are these important components that must be there if we're going to do the job right?

[Rafael Fabregas, Barrister and Solicitor, Mamann Sandaluk, Immigration Lawyers]

Thank you for that question.

First of all, I'd like to comment on the previous question about general opinion on the report. I'd like to applaud the committee's recommendation on the passage of the Juana Tejada law. I knew her as a client and eventually as a personal friend. I maintain close ties with her family. I can tell you they're very happy to see action is being taken to correct this manifestly unjust system right now.

In regard to your question, Ms. Mathyssen, currently live-in caregivers who are on what they call implied status are not eligible for OHIP coverage. That period of implied status is when they're in between work permits, when they're applying for an extension, or when they apply for permanent residence and apply for an open work permit at the same time without renewing their existing one. Their OHIP coverage ends as soon as their current work permit ends, notwithstanding the fact that they continue to be legally in Canada, continue to be legally authorized to work in Canada.

That's why we are recommending that the federal government step in and fill that gap. That gap could be at least six months. It could be longer should there be a question on whether or not this applicant is eligible for permanent residence. It could go up to two years. In fact Juana Tejada did not have OHIP coverage from August 2007 until December 2008. She became a landed immigrant in September 2008. But for whatever reason that she did not wish to challenge, OHIP still denied her coverage when she became a landed immigrant.

Something needs to be done about medical coverage for live-in caregivers. This needs to be looked at very closely, and the provincial government has to respond to that.

[The Chair, Conservative, David Tilson]

Mr. Flecker, we don't mean to leave you out. If you want to jump in at any time, please do.

[Karl Flecker, National Director, Anti-Racism and Human Rights Department, Canadian Labour Congress]

Fine, thanks.

[The Chair, Conservative, David Tilson]

Ms. Mathyssen.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Yussuff, do you have something to add?

[Hassan Yussuff]

I just want to make one point. Ms. Mathyssen has raised a point regarding what degree of protection temporary foreign workers and live-in caregivers should have.

I think it is generally assumed that we, as Canadians, don't distinguish among workers, that we don't have one set of rules for these workers and another set of rules for those workers. But that is the reality to a large extent in our country. It is important to state, in terms of this committee's roles and responsibilities, that we should treat workers equally and the same in every jurisdiction they work in. In other words, the law should apply. If workers work overtime they should be given overtime pay. They should be able to access the same health and safety protection as other workers who are born here in this country. More importantly, the benefits that derive from employment should flow equally to temporary foreign workers and live-in caregivers, because they shouldn't be different.

What we're essentially saying is we've got two sets of rules. Given the Charter of Rights in this country, it is fundamental we apply it equally across the board without distinction.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Calandra.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I have a lot of questions. I guess I'll focus on you, Mr. Fabregas. I'm sorry, I'm going to go very quickly because we're running out of time, so they might be yes or no answers. I'm not being rude; it's just that I want to get some of these questions out.

In order for someone to work as an employee, a temporary foreign worker, they must be legally resident in Canada, right?

[Rafael Fabregas]

They need to have a work authorization from Citizenship and Immigration Canada, yes.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

And the employer must have an LMO?

[Rafael Fabregas]

Generally speaking.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I'm assuming they need to have a work permit to work for that employer.