Submission on Foreign Workers

By Mike Gomez,2014-04-05 21:56
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Submission on Foreign Workers

    S U B M I S S I O N










    British Columbia and Yukon Territory

    Building and Construction Trades Council #204 4333 Ledger Avenue, Burnaby, B.C. V5G 3T3

    Tel: 604-291-9020 Fax: 604-291-9590

Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 2 of 11


    Construction labour markets across the country are the tightest they have been in many years. Record prices for commodities combined with low interest rates are driving a boom in construction. New investments are being made in the Alberta tar sands, mining, and large new infrastructure investments including pipelines, ports, roadways, and hydro-electric projects. Residential growth is reaching peak capacity. Unique regional circumstances, such as venue and infrastructure construction for the 2010 Winter Olympics, have added to the BC labour market demand.

    In spite of this, the current pressure on construction labour markets is manageable. Skills shortages can never be taken in isolation from the economy as a whole. It makes no sense to discuss skills shortages without also addressing wages/benefits and work conditions. For instance, the skills shortage is severe for employers expecting to hire tradesmen at $10 per hour. The “shortage” dissipates when

    employers offer $50 per hour. Even in the current tight market, rates for skilled trades have not soared through the roof. In British Columbia Building Trades unions have recently agreed to wage and benefit packages that average 5% per year over four years. The contract will expire in 2010.

    In this submission Building Trades unions give a balanced perspective on the issue of importing foreign workers to solve immediate cyclical demand. We will look at a variety of issues including the application process and criteria involved in deciding on foreign worker visas, assessing and credentialing foreign workers, proposals from industry to amend the Temporary Foreign Worker program and Skilled Worker category for permanent resident applicants, and finally, monitoring and enforcing federal regulations.

The application process and inappropriate use of Temporary Foreign Workers

    According to Federal regulations temporary work permits may be issued to foreign workers only if;

    ; there are no qualified Canadian workers available;

    ; they have the same or equivalent qualifications as skilled Canadians;

    ; it doesn‟t undermine contractors and current collective agreements

    by providing wages and benefits that are lower than what qualified

    Canadians would receive for doing the same work; and,

    ; equal allowances for transportation, food and lodging are made to

    Canadian workers if they are offered to foreign workers.

    The Building Trades Council is not opposed to the importation of temporary foreign workers as long as these criteria are respected.

Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 3 of 11

    In addition, foreign workers must not adversely impact apprenticeship training and new construction career opportunities for First Nations, youth, women, and other Canadians in low-wage jobs wanting to become tradepersons.

    It is worth pausing here to take note of the unique nature of training for a career in the construction industry. Construction is cyclical; it is tied to booms and downturns in the economy. Apprenticeship and training in construction takes place on the job. Only 20% of trades training is in a classroom setting. Hands-on trades training requires employment and job opportunities. Training must take place when boom time opportunities present themselves. If we fail to take advantage of training opportunities during boom periods we lose our chance to prepare construction workers for the future.

    The LMO process is applied to just 25% of all foreign workers issued work permits. Exemptions from the LMO process exist for employers who hire through labour mobility or labour co-operation agreements such as the North America Free Trade Agreement, the Canada-Chile Labour Co-operation agreement, other bi-lateral agreements, and inter-Provincial agreements.

    Employer applications for foreign workers are reviewed by HRSDC before a work permit is issued. This is to ensure that the foreign worker will not displace Canadians. HRSDC conducts a Labour Market Opinion (LMO) to assess the impact of foreign workers on local construction employment needs and requirements. The LMO considers the following.

    ; that the job offer is genuine;

    ; the wages and working conditions are comparable to those offered

    to Canadians working in the occupation;

    ; the employer has conducted reasonable efforts to hire or train

    Canadians for the job;

    ; the foreign worker is filling a labour shortage;

    ; the employment of the foreign worker will directly create new job

    opportunities or help retain jobs for Canadians;

    ; the foreign worker will transfer new skills and knowledge to Canadians;

    ; the hiring of the foreign worker will not affect a labour dispute, or the

    employment of any Canadian workers involved in such a dispute.

    If the LMO is positive and the job offer is approved, a confirmation will be sent from the employer to the worker. At this point the worker can apply for a work permit from Canada Immigration. A positive LMO weighs heavily in favour of an approval of the work permit. As long as the applicant meets CIC security, criminality, and health requirements, a positive LMO will usually lead to issuing a work permit.

    In addition, to assist with the LMO, the HRSDC sometimes uses National Occupational Classifications. The NOC rates the skill level for given occupations. There are four levels; A, B, C, and D. “A” levels denote university education; “B”

Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 4 of 11

    level indicates college and/or technical school apprenticeship training (this is the classification for skilled journey level trades workers); “C” requires some secondary

    school (i.e. High School) and at least two years of on the job training; and “D”

    requires some hands-on experience.

    In BC, the Foreign Worker unit of the HRSDC uses a shortage or imbalance list of selected National Occupational Classifications (NOC). This list is not a public list. The list has been expanded recently based on economic analysis inside the department that shows skills shortage in some construction trades. The BC Building Trades Council would like to have input into the determination of trades included on the NOC imbalance list. The Building Trades unions dispatch halls are uniquely positioned to gauge employment opportunities at any given time. The Building Trades have offered to submit quarterly surveys of dispatch hall reports to the BC Regional Foreign Worker Unit for consideration in the preparation of LMO‟s.

    Providing quarterly input to Foreign Worker Units would be an extension of Building Trade partnering with the HRSDC. The construction labour movement is already an active participant with both non-union and union employers to find common agreement on labour market conditions. The Construction Sector Council Labour Market Information Committees (CSC-LMI) across the country have produced sound statistical information to confirm labour requirements today and into the future.

Certification Assessment

    The Building Trades recognize the new federal commitment to facilitating assessment and recognition of foreign credentials. The investment of $18 million to this project is a positive first step towards ensuring that workers are certified to “Canadian” standards. Certification assessment poses a challenge for the federal government. The difficulty is that every province has its own, widely variant, certification standards and requirements. In Quebec twenty-four trades require compulsory “red-seal” certification. In Alberta there are thirteen compulsory

    trades. In B.C. none of the trades, not even the crucial public safety trades such as electrician, gas fitters, sprinkler system installers, steamfitter-pipe fitters and elevator construction and maintenance, require compulsory certification (the attached chart illustrates the variations between provinces).

    The fundamental challenge for the federal government will be to determine standards and requirements for immigrants and temporary foreign workers. What certification standards will meet the national interest? Will the provincial requirements supersede federal standards? What will the role be for the national “red-seal” standard?

    Aside from its certification standards and requirements each province also has its own process of assessment and recognition of foreign qualifications. Provincial barriers and other systematic obstacles verifying foreign worker skills have been

Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 5 of 11

catalogued by the Construction Sector Council (CSC) in its Study of Assessment

    and Recognition of Foreign-Trained Worker Credentials in the Construction Industry

    (2004). Barriers include, inefficient dissemination of information on the assessment process, insufficient knowledge of the trades and apprenticeship procedures among settlement workers, insufficient flexibility by provincial training authorities in understanding foreign training, difficulties in attaining credits for prior learning and work experience, lack of re-training or of bridging opportunities for education abroad, the cost of credential assessment and finally, for the workers themselves, the difficulty in translation and access to foreign documentation.

    As suggested above the biggest barrier for the foreign worker is language. Without fundamental English or French language skills the foreign worker and immigrant is isolated and dependent on interpreters and translators for every communication he/she faces. Challenging qualification exams is just the tip of the iceberg. The foreign worker is unable to access job opportunities and apprenticeship training without French or English language skills. Challenging certification through exams is difficult enough for Canadians. It is estimated that only 50% of those working in the trade are able to pass challenge exams (p. 21 CSC Foreign Trained Worker Credentials).

    The BC Building Trades experience working with foreign workers corroborates the experience of owners, contractors and employers. According to the CSC study...

    The most common reason for rejecting foreign-trained workers is

    lack of English skills. … For companies that did not feel language

    was an issue, it is possible the selection process ensures those with

    weak language skills are screened out (CSC, p. 23)

    Assuming that immigrants and temporary foreign workers will access language training is not in tune with reality. Any amendments to improve the Foreign Worker program would be amiss not to include and prioritize English as a Second Language (ESL) training.

    Documentation is another serious obstacle for foreign workers. Technical skills are not measured and certified by authorities in many developing world countries. Letters of recommendation from past employers are very difficult to access for these workers. As employment in construction is often short-term, past employers and companies may have gone out of business. Construction employment is spread out across a country. For the foreign worker past employment is likely to have been in a region or city far away from the worker‟s home. In many cases it is

    simply impossible for foreign workers to access the letters of recommendation that might serve as substitutes to official documentation from a government authority.

    For many, whether immigrant or foreign temporary worker, the pursuit for credential recognition will be abandoned. The worker settles for a job in the construction industry with minimal skills outside of their trade specialization or they


Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 7 of 11

    Legal firms and immigration consultants that represent employers looking to recruit foreign workers are experts in finding exemptions from foreign worker regulations. The exemption is used by labour brokers and consultants as a first option so as to avoid the Labour Market Opinion process. Experts in the field know that over 75% of all temporary foreign worker visas are issued as exemptions. Labour mobility agreements and Free Trade Agreements open the door to exemptions from LMO‟s.

    Labour co-operation agreements for North America (Canada-USA-Mexico), Canada-Chile, Canada-Costa Rica, Canada-Central America, Canada-Brazil and Canada-Singapore all open the door for exemptions. We urge the Minister to review the use of exemption clauses by savvy third party representatives for employers wishing to import temporary foreign workers. Regulations that safeguard Canadian prevailing wage rates, skill requirements, working conditions and labour relations must not be subverted by legal maneuvers that hide the intention of employers looking for cheap foreign workers.

    The federal government must take more than a passing interest in the plight of abused foreign workers. While provincial Ministries of Labour, WCB, and Human Rights Tribunals play a fundamental role, federal jurisdiction is overarching and remains supreme. The federal government authority stems from its jurisdiction over inter-provincial and extra-territorial labour mobility. Canada is not a signatory to international conventions with clear obligations for the host country. The

    International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN Resolution 45/158) and the Lisbon Convention on the

    Recognition of Qualifications concerning Higher Education in the European Region

    (EC and UNESCO) are two examples. Labour contractors, lawyers and immigration consultants operate in a completely unregulated environment. These third party consultants must not be allowed to participate in employment contracts that exploit workers or obstruct their rights.

Proposed Changes to Skilled Immigrants Assessment

    The BCYT-BCTC does not support a return to the “targeting” certain trades for expedited entry. Providing exemptions for “targeted” trades, a feature of the 1978

    Immigration Act, was a failure. Under the previous Immigration Act immigrants with targeted trades or professions were unable to find jobs that matched their training or were unable to adapt to Canadian culture and lifestyles. Notorious examples of PhD engineers forced to drive taxis or medical doctors working as health technicians are a fallout that still haunt the old Immigration policy. Targeting trades for “fast-tracked entry does not solve the problems of credentialing,

    language, adaptability, and most importantly, employability. The current skilled worker immigrant category gives twenty points to workers who have a commitment from an employer, or who are already employed in Canada under the Temporary Worker Program.

    Targeting specific construction trades is a short sighted patchwork solution to temporal shortages. Such an amendment will build false expectations,

Building Trades Perspectives And Proposals On Amendments

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    shortchange immigrants and contribute to new imbalances for construction labour markets.

Adapting the Seasonal Agricultural Worker Program to Construction

    Recently the Canadian Construction Association called on the federal government to expand the Seasonal Agricultural Worker Program (SAWP) to the construction industry. The Building Trades unions are opposed to any move that would adapt similar criteria and processes from SAWP to the construction industry.

    The BC Construction Sector Council Labour Market Information Committee (CSC-LMI) predicts tight markets through 2008. Construction activity will ease beginning in 2009 with a stabilization then decline in construction workforce through until 2014. Current shortages, in some construction trades, will not last.

    The experience of the SAWP has been to replace Canadian agricultural workers with foreign workers. The tomato and tobacco industry in Ontario is now fully dependent on the importation of seasonal foreign workers. Those industries would not exist without the access to these foreign workers.

    Adapting SAWP to construction would destabilize construction labour markets. In a rush to compete with low wage foreign workers apprenticeship training would be thrown into turmoil, occupational health and safety would be jeopardized, pension health and welfare funds would further weaken, and building quality including crucial safety systems, would be put a risk.

Monitoring and Enforcing

    Regulations and criteria that govern the use of foreign workers are useful general guidelines for civil servants charged with the responsibility of preparing LMO‟s or

    evaluating an employer‟s application for an exemption. There is however a need

    for more specific direction from the regulations.

The regulations call for “wages and working conditions comparable to those

    offered to Canadians working in the occupation.” At a minimum, foreign workers

    should be paid according to federal fair wage schedules. If the prevailing wage rates are good enough for the federal government why shouldn‟t they apply to all work sites where foreign workers are employed?

    The rules, however, can easily be subverted by cunning employers. Employers are motivated by any savings they can make on their construction project. Importing cheap offshore labour is too great a temptation for some employers to ignore. The recent example of exploited Costa Rican, Colombian and Ecuadorian workers on the RAV Canada Line rapid transit extension in Vancouver is an example.

Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 9 of 11

It‟s not enough for the Federal government to simply screen applications, validate

    and make approvals of seemingly honest foreign worker applications. Without an effective monitoring and enforcement mechanism the government sends a message that non-compliance will be tolerated.

    Relying on complaints from abused and exploited workers is naïve. As mentioned earlier in this submission, workers themselves are ignorant of their rights while working in Canada. Even if the non-English, non-French speaking foreign worker is aware of their rights there is little chance that the worker will seek redress. The worker is too intimidated and vulnerable to take on the government and their employer.

    Relying on complaints from third parties, unions, concerned citizens and the religious community is also a weak response. Third party complainants have no authority or capacity to conduct spot-checks on suspected employers who exploit their workers and flout federal and provincial laws. In most cases the third party complainant just happens to have stumbled across cases of exploitation. The third party complaint is a spontaneous act of compassion. This is anything but a systematic approach to monitoring and compliance enforcement.

    Building Trades unions are calling on the federal government to institute a comprehensive monitoring strategy with enforcement teams to send a message to all employers that the Foreign Worker Program will be fairly administered. In order to minimize expenses a monitoring and enforcement program could combine several federal and provincial Ministries and Departments.

In 2001 and 2002 the BC Employment Standards Branch and Workers

    Compensation Board collaborated in a pilot project with federal officials from HRSDC and CCRA in an initiative to reduce the underground economy in residential construction in the Lower Mainland. Black-market activities in construction are common place. Non-payment of EI, CPP, and Federal income taxes were the focus of the federal participants. Provincial officials were concerned that employers abide by minimum wage and work conditions for employees while WCB monitored workplace safety. The joint (federal-provincial) compliance team conducted spot-checks on over 1,500 residential housing construction sites. The Joint Compliance Team recovered over $80 million in unpaid provincial taxes and WCB premiums. More importantly the JCT sent a message to all contractors that authorities were serious about compliance with taxation, EI, CPP, and WCB deductions and safety regulations.

    The Building Trades urge the federal government to re-initiate a joint compliance team, this time with the participation of CIC and the Canadian Border Security Agency (CBSA) that would include monitoring and compliance with the terms of Foreign Worker Permits. A newly formed JCT would have the added benefit of monitoring the employment of illegal migrant workers in the construction industry.

Building Trades Perspectives And Proposals On Amendments

    To The Temporary Foreign Worker And Skilled Worker Programs Page 10 of 11

    Honest contractors and businesses lose confidence in the federal government every day they watch their competitors take advantage of the system. Non-enforcement tempts honest contractors to join in the illegal exploitation of workers. The system becomes insidious when honest contractors, in order to survive, give up and join in with those who cut corners, cheat on taxes and fail to make contributions to EI and CPP.

Conclusions and Summary

    The Building and Construction trades want to make clear our support for immigration. We recognize the important contribution immigrants make to this country.

    Our opposition is to the use of temporary foreign workers when qualified Canadian workers are available. When inter-provincial mobility cannot make up a demonstrated skill shortage the use of temporary foreign workers is justified.

    The Building Trades are asking for improvements to the HRSDC Labour Market Opinion process that would;

    ; Include quarterly reports from Building Trades affiliate union dispatch

    halls to ensure that labour market information is up-to-date.

    The Building Trades call on the federal government to continue discussions with the provinces to find agreement on the assessment and recognition of foreign trained worker credentials. Specifically we call for;

    ; Increased priority and funding of ESL training opportunities for Skilled

    Worker Immigrants and Temporary Foreign Workers.

    ; Outreach programs to ensure that skilled workers from abroad are not

    abandoned and trapped in employment that fails to take advantage

    of their training and skills.

    The Building Trades call on the federal government to institute regulations and monitoring of labour contractors and legal counsel involved in the recruitment of foreign workers.

    ; Labour contractors and legal advisors must be monitored to ensure

    that claimed exemptions provided under bi-lateral agreements are

    not misrepresentations and do not jeopardize employment and

    apprenticeship/training opportunities for Canadian trades workers,

    First Nations, Youth and Women.

    ; Foreign workers must be provided with information about protections

    available under employment standards, WCB, human rights and

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