Dear Mr Brown,

My spouse is currently on the farm work programme in Canada. I really believe that he is being treated unfairly by his employers because they know he is vulnerable. I heard that there is a class-action lawsuit about how farm workers are being treated. Can you explain it to me?

— SE

Dear SE:

I can explain the case and issues in general terms. A class-action lawsuit was initiated against the Canadian Government for violating migrant domestic workers’ and farm workers’ Charter Rights under the closed or employer-specific work permit regime.

The Constitution

The provisions of the immigration regulations that allow the federal government to bind the workers and to restrict their rights to change employers are being challenged. The plaintiffs are asking the court to declare the provisions of the immigration law that allow such practice unconstitutional, and to award damages to migrant workers who have been subjected to employer-tying measures on or after April 17, 1982, when the Canadian Charter of Rights and Freedoms took effect.

When migrants on closed work permits are terminated they lose legal status in Canada and must secure another employer with authorisation by Employment and Social Development Canada to hire foreign workers. The process is highly uncertain. Moreover, there is unjust limitations of movement and other rights to earn a living.

Labour Market Impact Assessment

A Labour Market Impact Assessment (LMIA) states whether the issuance of a work permit to a foreign worker will have a neutral or positive effect on Canada’s economy. It is the employer that must show recruitment effort and results, explanation of how the company would benefit from a foreign worker’s employment, such as profitability, employee skills and positive spillover affecting Canadians. It considers wages, working conditions, the availability of Canadians or permanent residents to do the work, the transfer of skills and knowledge, and the creation of jobs.

The relevant factors to consider for the issuance of an LMIA include:

• Verification of a genuine employment offer.

• Recruitment efforts to hire a Canadian citizen or permanent resident.

• Job creation or job retention of Canadian citizens or permanent residents.

• Transfer of skills and knowledge for the benefit of Canadian or permanent residents.

• Filling labour shortages in the Canadian market due to a skills shortage.

• Sufficient wages and working conditions to attract Canadian citizens or permanent residents.

In general, the closed work permit limits the worker to a specific position to a specific employer in Canada based on the LMIA. Therefore, workers are normally unable to complain about bad treatment in fear that they will have to leave Canada.

Critics of the closed work permit programme contend that these workers and treated as quasi-property by employers. The lawsuit alleged that employer-tying measures were rooted in direct discrimination based on race, national or ethnic origin and colour. The employer-tied workers’ inability to change employers creates a striking power imbalance in favour of the employer, making migrant workers vulnerable to exploitation, which undermine human dignity. Employer(s)-tied household and farm workers are reluctant to resign or jeopardise their employment relationship, such as refusing unsafe work or seeking legal recourse. There have been many reported cases of inhumane working conditions and treatment, as well as racial harassment.

A United Nations Special Rapporteur on contemporary forms of slavery stated that Canada’s Temporary Foreign Worker (TFW) program is a breeding ground for slavery. I believe more has to be done to protect the rights and dignity of the migrant workers to address the Special Rapporteur’s findings. However, I am not sure whether the claim that a closed work permit is unconstitutional has merit.

Please visit JAMAICA2CANADA.COM for additional information on Canadian Permanent Residence programs, including Express Entry, The Study & Work program, Visas or Appeals, etc.

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of JAMAICA2CANADA.COM—a Canadian immigration & education firm in Kingston, and AfriCanadaServices.com in Abuja, Nigeria. Send questions/comments to documents.jamaica2canada@gmail.com