There is no doubt that PNPs, as pathways to permanent residency, ultimately remove employers’ de facto ability to “repatriate” workers on temporary permits, thereby dispelling a key element of the power imbalance between employers and workers that generates some of the resulting insecurities discussed in Part II, above. However, this asymmetry in bargaining power is deflected back into the employment relationship by design of the nominee programs (or failures thereof) in at least four different ways. First, employers’ exclusive controls over nominee recruitment and sponsorship ratchets up the pressures on temporary workers before they receive nominee status. The possibility of permanent residency, without further restrains on employer discretion or a wholesale shift away from using the TFWPs as a gateway to the nominee programs, may ultimately exacerbate rather than diminish the level of coercion and resulting abuses already experienced by temporary foreign workers. Second, the institutional complexity resulting from the division of PNPs into sector-specific streams and provinces’ ability to change these programs at will favours employers and disadvantages foreign workers, who are already hindered by language barriers and access to information challenges. Third, the devolution of settlement and language training to employers makes them responsible for key elements in workers’ social and economic lives, tethers them even more closely to specific employers, and skews the distribution of the kinds of employers who are available to meet these needs. Finally, nominee programs across Canada invariably fail to address the gendered and racialized dimensions now inherent in temporary worker programs. Since the TFWPs serve as the sole gateway for lower-skilled provincial nominees, these dimensions or race and gender will inevitably carry over into the nominee processes unless provinces proactively address associated problems and challenges experienced by these workers. It is striking that policy makers have done nothing to address these realities in designing their respective PNPs.
This section elaborates on each of these four concerns in relationship to the specific design features of existing PNPs in Canada. To make the discussion concrete, I focus on PNP case studies in Alberta and Manitoba – two provinces that provide opportunities for employers to nominate lower-skilled workers. The Alberta Immigrant Nominee Program (AINP) closely resembles similar programs in British Columbia and Saskatchewan with respect to their sector-specific program streams, nomination procedures, and requirements for language and settlement service provision. Alberta’s increasing reliance on the federal TFWPs has been strongly criticized by the labour movement and others in the province for failing to protect vulnerable temporary workers, and despite the AINP’s growing accessibility to lower-skilled workers it appears to replicate many of the TFWP’s problems. Manitoba’s nominee program (MPNP), by contrast, is often held out as a successful program model. It offers the most general, and probably the most easily accessible, program streams for lower-skilled workers in comparison to other provinces. And while it is strongly employer directed, the MPNP has promoted broad involvement of municipal governments and organized labour, at least among the few larger corporations that participate heavily in the program. In an approach distinctly different from that of Alberta, Manitoba has used its nominee program to functionally reshape the TFWP into a tool for permanent immigration rather than use it as a stopgap measure to address short-term labour shortages. While outcomes for individuals appear to be significantly improved under the MPNP compared to other provinces that admit lower-skilled workers, Manitoba’s innovations have been at best partially successful in meeting the challenges posed by the employer-driven nominee model adopted by all provinces to date.
4.1 Background to the Case Studies
Manitoba’s nominee program has evolved in response to a confluence of demographic and labour market pressures. At least two major demographic factors have driven its development.[lxxvi] The first is Manitoba’s relatively slow population growth in comparison to national trends. The province’s population grew by only 3% over the past decade to 2006, in comparison to 9.6% for the country as a whole.[lxxvii] As a result, it has been a priority for Manitoba to increase immigration but it continues to do so in competition with major immigration centres in Vancouver, Toronto, and Montreal. A second factor is the dramatic concentration of new immigration in Winnipeg, the province’s major urban centre. Winnipeg currently accounts for 60-70% of the province’s total population, and has received 80% of new arrivals to Manitoba since 1996.[lxxviii] The MPNP was therefore developed with a strong motivation toward diversifying immigration in the province to promote a more geographically balanced population growth. Key labour market shortages have also been a motivating force being the MPNP’s development, from the shortage of garment industry workers that initiated the precursor to the MPNP in the mid-1990’s to more recent labour shortages in manufacturing, food processing, and transportation sectors.
While the number of temporary foreign workers coming to Manitoba increased from 2,794 workers in 1999 to 4,192 in 2008, this increase is significantly lower than national trends, which saw a 80% increase in the number of temporary foreign workers overall during the same time period.[lxxix] At the end of 2008, there were 5,357 temporary foreign workers residing in Manitoba.[lxxx] Between 2000 and 2008, the number of provincial nominees in Manitoba increased steadily from just over 1,000 to 7,968 nominees.[lxxxi]
Alberta’s nominee program was developed much more recently and under significantly different demographic and labour market conditions compared to the MPNP. Trends in Alberta have been heavily influenced by rapid growth in the oil and gas industries since the mid-2000s. High demand for workers in these sectors has had a dramatic impact on most, if not all, other sectors of the Alberta economy, leading to labour shortages and a host of other challenges.[lxxxii] In response, the Alberta government undertook a major promotion of the TFWPs to employers.[lxxxiii]
3,323 individuals were nominated through the Alberta program in 2008. While this is a significant number of immigrants, it represents only a small percentage (5.8%) of the 57,707 temporary foreign workers in Alberta at the end of the same year.[lxxxiv] Alberta’s situation more closely reflects that of Canada as a whole. While there were 251,235 temporary foreign workers in Canada at the end of 2008, there were only 22,418 provincial nominations in total, representing 8.9% of the total foreign workers. Development and expansion of the AINP has also been much less consistent than that of the Manitoba program, with slow growth in the early years of the AINP since 2002 and more rapid increases in the number of nominations since 2006. This growth in the AINP closely tracks the skyrocketing number of temporary foreign workers admitted to Alberta during the same time period, albeit with less dramatic increases.
4.2 Recruitment and Selection Processes Increase Opportunities for Abuse
Since lower-skilled foreign workers must first apply to work in Canada through one of the TFWPs before they are eligible to become nominees under both the Alberta and Manitoba programs, the mere availability of nominee programs does little to address the current problems that all foreign workers face with respect to recruitment. In fact, the possibility that temporary workers might be able to attain permanent residency at some point in the future is likely to exacerbate existing insecurities by raising the stakes for workers. This generates greater bargaining power for employers and provides increased leverage for unscrupulous recruiters to exploit workers.
At foreign workers’ point of entry into Canada, recruiters are now playing a prominent role. Recruiters and recruitment agencies offer a number of services to employers, which include locating available workers in their home countries; assessing the qualifications of potential workers, verifying references, assisting in resume preparation, arranging interviewing, and negotiating the employment contract. Recruiters may also assist workers in gathering required documents, provide information about legal rights and obligations, make travel arrangements, and assist with arrival and settlement.[lxxxv] But workers have been subjected to widespread abuses at the hands of some of these agencies. Taking advantage of individuals with limited access to information, unscrupulous recruiters charge unreasonable fees to workers, manufacture fake offers of employment, fail to provide adequate information about legal rights or provide misinformation, and renege on offers to provide settlement services and assistance.[lxxxvi] Despite these risks, lower-skilled foreign workers generally have few other options if they want to secure employment and prospects for permanent residency in Canada.
It is increasingly clear that foreign workers are coming to Canada through temporary permits with exactly this type of expectation. As one worker advocate in Alberta has noted, “of the hundreds and hundreds of temporary foreign workers I have dealt with over the last two years, almost all have come here not to work temporarily but to immigrate to this country. Because our immigration system is so dysfunctional…the only way they can come here is as temporary foreign workers.”[lxxxvii] However, it is worth noting that these same worker expectations have been a basis for demands to expand nominee programs to admit greater numbers of lower-skilled workers.[lxxxviii] In spite of the federal government’s persistent claims that temporary foreign workers should clearly understand their employment relationships as time-limited positions, advocates argue, many workers have occupied functionally long-term positions under a series of renewable work permits. The problem for workers is that as long as TFWPs serve as the only “gateway” to permanent residency, the availability of nominee programs to satisfy their expectations –without other legally enforceable protections – largely serves to exacerbate existing insecurities.[lxxxix]
Manitoba has gone some way toward protecting foreign workers against recruiter abuses. In April 2009, Manitoba became the first province to regulate recruiters through its Worker Recruitment and Protection Act.[xc] The Act prohibits recruiters from receiving or collecting fees directly or indirectly from workers they assist in finding employment, currently one of the main abuses common among these agencies. Exorbitant fees charged to workers can dramatically reduce their net earnings from employment. The Manitoba legislation also creates a registration process whereby recruiters must first register with the province before they are permitted to apply to HRSDC for LMOs. Finally, the new Act contains improved enforcement provisions to oversee the regulatory process.
But while ancillary legislation protections such as this one may protect potential nominees against some recruiter abuses, PNP selection processes themselves are likely to increase opportunities for employers to exploit workers directly. Alberta’s “semi-skilled” nominee stream for lower-skilled workers – a hodgepodge of narrow, sector-specific pathways – currently makes temporary foreign workers in the food and beverage processing, hotel and lodging, manufacturing, trucking, and foodservice sectors eligible for nomination.[xci] Employers and workers in these sectors follow a relatively complex application process.[xcii] First, employers specify the number of nominations they intend to make, and outline the job description and requirements, settlement and retention plans, and any sector-specific requirements to the provincial government. This process allocates a specific number of nominations to each employer directly, limiting the maximum number of nominations according to sector.[xciii] Once allocations are made, employers are eligible to select foreign workers who meet the basic education and worker experience requirements for nomination.[xciv] In Alberta, lower-skilled foreign workers must be employed with the nominating employer for a minimum period of six months before they are eligible for nomination. Other requirements for education and experience in workers’ home countries vary across sectors. After nominated workers have been approved as nominees by the province, they apply CIC for permanent residency status.[xcv]
The process of allocating nominations to employers before they select individual nominees disadvantages workers in at least two ways. First, it further discourages workers from accessing existing employment protections such as minimum employment standards in the face of employer abuses, by giving employers sole discretion to “reward” workers with nominations. Given that these nominations represent a direct path to permanent residence status in Canada, they are obviously extremely valuable to workers. As Yessy Byl, the Alberta Federation of Labour’s Temporary Foreign Worker Advocate, points out, some employers “use this program as a further excuse to exploit workers who desperately want to immigrate. Many dangle the possibility of nomination in the AINP to ensure acquiescence to unreasonable requests such as unpaid work, additional work, etc.”[xcvi] Second, by limiting the number of allocations made to each employer, this system is likely to increase competition among workers for nominations and may even discourage employers from participating in the nominee program altogether because they regard it as arbitrary and unfair.[xcvii]
Manitoba’s nominee program offers some improvements over the AINP but still reserves to employers a disproportionate level of control over the selection process. The MPNP provides a general employer-driven nominee stream open to both high and lower-skilled workers in all occupations.[xcviii] Employers nominate individuals directly and there is no system of sector-specific caps or nomination allocations prior to the selection process. The only substantial requirements under this program are that workers be employed full-time in Manitoba, that they have been working for the same employer for at least six-months, and that they receive an offer of long-term, full-time employment from that employer. Any training, certification, and work-experience requirements are determined by the specific job – that is, they do not differ from the requirements faced by domestic workers.[xcix]
An additional innovation is that the MPNP requires employers to notify temporary foreign workers, within their initial six months of work, that the employer intends to nominate them through the MPNP. This requirement has the advantage of minimizing worker uncertainty about their future status while they are still ineligible for nomination under provincial requirements. On the other hand, it is difficult to see how the notification requirement holds much practical significance either for employers or workers, given that employers are always free to change their mind by laying off workers altogether, resulting in the likely termination of their temporary work permit.[c]
These critiques suggest that a further reform might be for the province to remove the six-month work requirement, making foreign workers eligible for nomination as soon as they begin work in Canada. This would at least provide the opportunity to do away with the temporary “trial period”, during which workers are arguably most vulnerable. Such a reform, however, may also serve to increase employer control ever further and calls into question the overall legitimacy of a program that gives private actors such broad scope to nominate immigrants without even basic requirements to prove their bona fides. Realistically, these challenges point to the inherent inadequacy of the TFWPs as an entry point for permanent economic immigration through an employer-driven nominee program. Palliative reforms that fail to recognize underlying problems of regulatory devolution and resulting institutional mismatch are unlikely to generate the kinds of outcomes for vulnerable foreign workers that fairness and sound economic policy-making are likely to demand.
4.3 Program Complexity and Instability Increase Workers’ Uncertainty
Employers’ wide discretion in the recruitment and nomination process is clearly one source of uncertainty likely to perpetuate workers’ vulnerabilities, generating high risks for individuals who attempt to enforce their rights. Another cause of uncertainty is the institutional complexity and instability of the nominee programs themselves, such that workers, and to some extent employers, are unable to form reliable expectations about eligibility requirements or about the ongoing availability of whole program streams. The reality, however, is that workers will inevitably bear a disproportionate share of the risk that they are, or will become, ineligible for permanent residency status. Whereas lower-skilled workers face major social and economic decisions about seeking work in Canada, about bringing their families, and about applying to work in specific occupations that may all turn crucially on the availability of a clear pathway to permanency, employers invest relatively little in bringing a foreign worker to Canada and retain wide flexibility to hire new workers should program requirements change.[ci]
This issue has become a particular challenge for workers in Alberta. Constituted as a collection of sector-specific streams whose criteria for both workers and employers change frequently, the “semi-skilled” class of the AINP generates a high degree of uncertainty for all parties. For example, work experience requirements between streams differ widely. Eligible nominees in the food and beverage processing and foodservice industries must have a minimum of three years full-time work experience in their home country prior to arriving in Canada; for nominees in manufacturing, this requirement is four years and in the trucking industry nominees are only required to have previously “driven in a professional capacity”. Nominees in the hospitality sector are not required to have any prior experience, but do need to obtain professional certification or an equivalent.[cii] Many of these requirements continue to be fluid and have changed over time, increasing the inherent complexity of the system.
It is possible that some of this instability is the necessary product of legitimate experimentation by the province as it field-tests different options and attempts to adapt in the face of changing labour market conditions. But it is equally likely that at least some uncertainty is built in all nominee programs by the open-ended structure of the federal-provincial immigration agreements and by a lack of coordination between the provinces and the federal government on mechanisms for evaluation. These framework agreements and subsequent practice not only leave the provinces free to set their own agendas and to implement program steams accordingly, they largely discharge provincial governments from any real accountability for the consequences of reforms. By definition, foreign workers are formally excluded from most means of public participation and are often practically cut off from mechanisms to have their voices heard, such as organized labour regimes and other modes of collective action.
Foreign workers’ well-recognized barriers to accessing information about their rights and entitlements of further compound these uncertainties. According to the House of Commons Standing Committee on Citizenship and Immigration:[ciii]
Many of the abuses and difficulties that temporary foreign workers experience stem from their ignorance of the laws and regulations in place at different levels of government. Testimony before the Committee suggested that workers may be unaware because they were never informed, because they were informed in a language they did not understand, or because they were intentionally misinformed.
Temporary foreign workers may also lack basic access to means of communication, such as telephones and internet connections, and are unlikely to have the ability to access advice or legal counsel while in Canada. There is currently heavily reliance on employers and recruiters to provide workers with information about their rights, which can exacerbate existing problems of coercion and control over workers.
4.4 Employer Responsibilities for Service Provision Increases Risks for Workers
A third criticism of nominee program design is that the provinces have failed to contemplate the specific settlement services that these workers require, both during their period of transition (i.e. while they are still nominees) and over the longer-term, after they attain permanent residency. One of the major gaps left by failures of federal-provincial coordination over the PNPs is that during the period between when workers are nominated as provincial nominees and when they receive permanent residency status they are unable to access important settlement services, despite the fact that they are actively working to establish a permanent life in Canada. In particular, key programs funded through the federal Immigrant Settlement and Adaptation Program (ISAP) and other language training services are unavailable to provincial nominees until they formally acquire their permanent residency status.[civ]
Again, the provinces have placed heavy reliance on employers to fill in the gaps left by an absence of public regulation and service provision. There are two specific criticisms directed at this aspect of regulatory devolution. One is that obliging employers to provide essential settlement services further skews barging power to the disadvantage of workers by enmeshing their personal and family lives even more closely with authoritative decision-making processes undertaken by their employers. Jenna Hennebry has pointed out that:
[W]ith respect to status transitioning, using the provincial nominee program in conjunction with the temporary foreign worker program is good on the one hand, because it’s a channel for permanent status and it allows workers to get a regular status and get access to settlement services… However, this still is binding migrants to employers, so I’d be hesitant to use that as the only avenue for permanent residency for that group.[cv]
While employers’ participation in this area can have positive outcomes such as increasing employer-worker communication, building mutual respect, and strengthening norms of loyalty and reciprocity that promote worker retention, their activities are also seriously suspect in light of concerns about worker exploitation discussed above. A second worry is that when employers refuse to participate in service provisions or make bad faith attempts to fulfill formal requirements without actually supporting workers, these vulnerable individuals will find themselves in the vacuum left by an absence of public involvement. Likewise, while third-party actors such as organized labour provide crucial settlement supports and act as a counter-balance to employers’ interests in some workplaces, governments’ reliance on these actors implies that in non-unionized settings workers will be left without any substantial assistance.
Most lower-skilled nominee streams require employers to provide at least some form of language training and settlement services for nominees. Alberta’s nominee program requires employers to provide workers with in-house language training services or to arrange for provision by a third party. Likewise, the AINP obligates employers in most streams to design an accommodation and settlement plan for nominees that “demonstrate employer support and assistance toward successful integration of the workforce, community and society integration.”[cvi] While these seemingly modest requirements may appear to be positive developments in the direction of improving workers’ security and likelihood of successful settlement, the implied trend is clearly toward the devolution of support services away from the provincial government and toward private actors, the effects of which remain largely unevaluated.
Employers in Manitoba, for example, have been active both in lobbying for an expanded nominee program and in developing surrounding institutions and services. Maple Leaf Foods – a large, multi-national food-processing and agribusiness company – has been a particularly strong proponent of the MPNP. Soon after Maple Leaf Foods opened its major pork processing plant in Brandon, Manitoba in 1999 it became apparent that local labour shortages would require the company to seek other recruitment strategies and it turned to temporary foreign labour in the early 2000s.[cvii] By April 2008, the company was employing over 1,200 lower-skilled temporary foreign workers[cviii] with plans to nominate most of these for permanent status through the MPNP. Unique features of Maple Leaf Food’s involvement in development of the MPNP include not only its high nomination and retention rate of foreign workers, but also its collaboration with organized labour and the City of Brandon on labour protections and settlement services. These actors have developed a network of services for foreign workers that have been widely hailed as successful innovations – at least in those workplaces and urban environments where workers are able to take advantage of them. Part V, below, discusses some of the benefits and potential pitfalls of relying on third parties in these ways.
4.5 Program Design Fails to Address Dimensions of Race and Gender
There is no evidence to suggest that provincial jurisdictions who are opening their nominee programs to lower-skilled workers are seriously considering the heightened vulnerabilities experienced by foreign workers on the basis of gender and racialization. These oversights continue, despite the persistent attention being drawn to these dimensions of inequality in the context of TFWPs.[cix] It is worth underscoring the reality that because federal TFWPs provide the sole source of lower-skilled provincial nominees under current program designs, these socially-produced features of foreign worker programs will inhere directly in the relevant PNP streams. Moreover, there is no reason to believe that employers will deviate from the same criteria for selecting provincial nominees as they use for selecting temporary workers in the first place. Preconceived stereotypes about the social gender roles lead employers to choose women and men for specific jobs. Likewise, employer beliefs that individuals from certain countries of origin are better able to perform this or that job create racialized profiles within particular sectors and industries. Left to the sole discretion of employers, the effects of nominee selection processes in this area will likely be to ossify and entrench aspects of race and gender discrimination as part of Canada’s economic immigration system.
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