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 no