Canada's Season Agricultural Worker Program Is Encouraging Mexican Farm Workers To Go To Canada Instead Of To The United States
The American H-2A Temporary Agricultural Workers program[i] permits the temporary admission of foreign workers to the United States to perform agricultural labor or services of a seasonal or temporary nature. The United States issues between 55,000 and 65,000 H-2A visas per year,[ii] most of which go to Mexican workers. Over the years, both farmers and labor advocates have criticized this program. Farmers complain that it is administratively cumbersome, expensive, and ineffective in meeting their labor needs. Labor advocates argue that the program provides too few protections for workers. The last time Congress considered significant reform to lower-skilled temporary worker programs, it did so in the context of comprehensive immigration reform legislation in which guest worker programs were an ancillary focus. Current discussions about possible guest worker reform are focused more squarely on the programs themselves and on the needs of the employers and the workers. The tension between these competing needs lies at the core of the debate about how to proceed with reform.[iii]
To qualify for participation in the H-2A program, the American employer must, among other things, submit a valid temporary labor certification from the U.S. Department of Labor (DOL).[iv] DOL must certify that there are not sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and that employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.[v]
People look to Canada’s Seasonal Agricultural Worker Program as a model because of its success at making temporary workers truly temporary, according to David FitzGerald,[vi] an immigration expert at the University of California at San Diego. FitzGerald explains that the way the workers are prevented from staying is by socially isolating them to an extreme degree, controlling their movements and systematically preventing them from interacting with Canadian society. From a labor rights perspective, it is troubling, but it is appealing to policymakers because it keeps the workers temporary. Despite the drawbacks, many of the workers do not complain, saying the work is fair, the pay is good, and some protection is available. When treated unfairly by their employers, the Mexican consulate steps in.[vii]
Canada’s Seasonal Agricultural Worker Program seems to be thriving. Last year, more than 17,600 Mexicans worked in the ten Canadian provinces, an increase of 6.8% over the total for 2011. This represents a record high for the 38 years the program has been in operation. Moreover, Mexico has considerably reduced the processing time for workers, thereby streamlining the hiring and documentation processes. The number of hospitals doing medical checkups for the farm workers before their departure from Mexico has been increased from 15 to 54, and a free support service has been created in Mexico to assist the workers both while in Mexico and during their stay in Canada. The program facilities have been modernized and a system has been created for employers and workers to evaluate each other. And training courses are given on job rights and responsibilities and on safety and health concerns at work.[viii]
The Government of Canada has published a pamphlet for the workers entitled, Temporary foreign workers, Your rights are protected.[ix] It welcomes foreign workers to Canada and informs them of their rights as temporary foreign workers. Among other things, it tells the workers that their employers:
- Must pay them for their work (including overtime, where required);
- Must make sure that their workplaces are safe;
- Must give them proper break time and days off;
- Cannot force them to perform duties for which they were not hired or trained;
- Cannot take their passports or work permits away from them; and
- Cannot threaten to have them deported from Canada or to change their immigration status.
The pamphlet also explains that in Canada, employment in most occupations is covered under provincial and territorial laws. Every province and territory has an office that deals with labor and employment laws. A person at a local employment or labor standards office can talk to foreign workers about fair pay, hours of work, rest periods, working conditions and acceptable job duties, and may also provide other services. Some occupations are federally regulated under the Canada Labor Code.[x] A list of federally regulated workplaces is provided at the end of the pamphlet.
According to Ofelia Becerril, a professor and researcher in anthropology at the Michoacán’s college[xi] in Mexico, the growth of temporary employment programs for foreign workers in Canada has not reflected an increase in the quality of employment, wages, or working conditions for the foreign workers. Temporary employment systems are based on flexible models and use strategies related to gender, race, class, ethnic group, nationality, citizenship and immigration status in order to reduce salaries in the highly competitive industries that participate in the program.[xii]
In Made in Canada, How the Law Constructs Migrant Workers Insecurity,[xiii] the Metcalf Foundation[xiv] explains that a significant challenge arises in Canada’s Seasonal Agricultural Worker Program because the regulation of migrant workers lies at the intersection of employment and immigration laws. While the entry of migrant workers and their right to remain in Canada are governed by federal immigration law and policy, their employment and social rights are governed primarily by provincial laws and policy; and in Canada, every province has its own labor and employment laws and agencies. Provinces in Canada are similar to states in other countries, but they have more autonomy in relation to the federal government. There are 10 provinces and three territories. In each province, there are different kinds of agencies to enforce different kinds of labor and employment rights.[xv] For instance, provincial occupational health and safety and labor legislation does not apply uniformly. In Ontario, migrant farm workers are covered by the Occupational Health and Safety Act, but in Alberta, agricultural workers are exempt from similar legislation. Migrant workers have been able to unionize on some farms in British Columbia and Quebec, but in Ontario, agricultural workers are prohibited from collective bargaining. Consequently, enforcing the rights of foreign workers involves advocating at a range of administrative tribunals and courts in both federal and provincial jurisdictions, giving rise to disputes about which level of government has responsibility or accountability for which dimensions of the relationship.[xvi] One of Canada’s employee unions, United Food and Commercial Workers Canada (UFCW),[xvii] a long-time advocate for migrant workers' rights, endorses the findings in the Metcalf Foundation’s report.[xviii]
Canada’s Seasonal Agricultural Worker Program
Introduction. Canada’s Seasonal Agricultural Worker Program (SAWP)[xix] allows Canadian employers to hire temporary foreign workers (TFW) from Mexico or a participating Caribbean country[xx] when Canadian citizens and permanent residents are not available. It operates according to bilateral agreements between the Government of Canada and the governments of the participating countries. The agreements outline the roles of the foreign governments, which include making sure workers have required documents; maintaining a pool of qualified workers; and appointing representatives to assist the workers when they are in Canada. The participating governments also ensure that the men and women selected for the program meet all of its requirements.
Scope and Period of Employment for Mexican Workers. Among other things, the agreement between the Government of Canada and the Government of Mexico[xxi] provides that the normal workday is eight hours, but the worker may agree to extend his\her hours when the urgency of a situation requires it. Overtime requests shall be in accordance with the customs of the district and the spirit of the program, giving the same rights to Mexican workers as are given to Canadian workers. For each six consecutive days of work, the worker is entitled to one day of rest, but where urgency to finish farm work cannot be delayed, the employer may ask the worker’s consent to postpone that day until a mutually agreeable date.
During an initial fourteen-day trial period, the employer is not permitted to discharge the worker except for sufficient cause or refusal to work. Following completion of the trial period of employment, the employer, after consultation with the worker’s government agent, is permitted to terminate the employment for non-compliance, refusal to work, or any other sufficient reason.
Obligations of the Worker Under the Contract for Mexican Workers. The Mexican worker must agree to work and reside at the place of employment or at such other place as the employer, with the approval of the government agent, may require; to perform the duties in a workmanlike manner; and to obey and comply with all rules set down by the employer relating to the safety, discipline, and the care and maintenance of property. The worker also must agree to return promptly to Mexico upon completion of his\her authorized work period.
Wage Provisions for Mexican Workers. Employers agree to pay the worker weekly wages at a rate equal to the following, whichever is the greatest:
- The minimum wage provided by law in the province in which the worker is employed;
- The prevailing wage rate for the type of agricultural work being carried out by the worker in the province in which the work will be done; or
- The rate being paid by the employer to his Canadian workers performing the same type of agricultural work.
The employer is required to maintain and forward proper and accurate attendance and pay records to the Mexican government agent and to provide the worker a clear statement of earnings and deductions with each pay check.
Recruitment of the Foreign Workers. The recruitment of TFWs is the responsibility of the governments of the participating countries. Employers cannot use the services of a private recruiter.
Transportation. Employers must arrange and pay for the round-trip of the worker to the location of work in Canada, and back to his country of residence, and pay the work permit-processing fee. These expenses will be deducted from the pay of the Mexican workers, but the aggregate reimbursement to their employers for travel and the work permit-processing fee cannot be greater than $739.00.
Lodging, Meals, and Rest Periods for Mexican Workers. The employer must provide suitable accommodation to the worker, without cost. Such accommodation must meet with the annual approval of the Canadian government authority responsible for health and living conditions in the province/territory. The employer must furnish meals for the worker and, where the worker prepares his own meals, furnish cooking utensils, fuel, and facilities without cost to the worker. The employer also must provide at least two rest periods of ten minutes duration, one such period to be held mid morning and the other mid afternoon.
Health and Workplace Safety Insurance. Employers must ensure that all TFWs are registered for provincial/territorial health insurance as soon as they become eligible, and the employers must arrange and pay for workplace safety insurance coverage from either the provincial/territorial workplace safety insurance provider or a private insurance provider.
Employment Contract. Employers must complete and sign the employment contract and send it with a labor market opinion[xxii] application to Service Canada.[xxiii] The employment contract also requires the signature of the liaison officer for the foreign government and the TFW identified on the labor market opinion application. The purpose of the employment contract is to specify each party's rights and obligations, as well as to ensure that all parties understand and agree to the working conditions and their respective responsibilities. In the event that differences arise between the employer and the TFW, the contract will guide the resolution of their disputes.
Transfers. Employers can transfer a worker from one farm to another, provided the employer has the worker's consent; prior written approval from the foreign government representative in Canada; and prior written approval from Human Resources and Skills Development Canada (HRSDC).[xxiv] Employers cannot informally transfer TFWs from one employer to another or share them with other employers. Transferring or sharing TFWs informally violates sections 124(1)(c) and 125 of the Immigration and Refugee Protection Act[xxv] and is punishable by a fine of up to $50,000 and imprisonment.
Efforts to Recruit a Canadian or Permanent Resident Before Hiring a TFW. Employers are required to conduct recruitment efforts to hire a Canadian citizen or permanent resident before offering a job to TFWs. This includes posting vacancy announcements on the national Job Bank[xxvi] or its provincial/territorial counterpart in British Columbia, Newfoundland and Labrador, the Northwest Territories, Quebec, or Saskatchewan. Employers also are expected to advertise on recognized Internet employment sites; in local and regional newspapers, newsletters; in ethnic newspapers and Internet sites; in local stores, places of worship, community resource centers; or at local and regional employment centers. The advertisements must be posted for a minimum of 14 calendar days during the three-month period prior to applying for a labor market opinion. The advertisements must include the following information:
- Company operating name;
- Business address;
- Title of position;
- Job duties (for each position, if advertising more than one vacancy);
- Terms of employment;
- Wage (refer to Wages, Working Conditions and Occupations tab[xxvii] to determine the established rate for the specific commodity);
- Benefits package being offered (if applicable);
- Location of work (local area, city or town);
- Contact information: telephone number, cell phone number, email address, fax number, or mailing address; and
- Skill, education, and work experience requirements.[xxviii]
How to Apply for TFWs. Employers who want to hire a TFW must submit a labor market opinion application along with all the required supporting documentation to Human Resources and Skills Development Canada (HRSDC)/Service Canada.[xxix]
Checklist. A step-by-step checklist is available to ensure that all required documents are submitted.[***]
Nolan Rappaport was a counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he does temporary and part time work occasionally.