Written by Annie Arko and Callie Matz, 2L, University of Ottawa, Common Law, Faculty of Law
As the Coronavirus Disease Pandemic of 2019 (#COVID-19) sheds light on multiple systemic vulnerabilities, Canada’s dependence on migrant workers and their inadequate regulatory protection is exposed.
Old Problem, New Spotlight
Temporary foreign workers, also referred to as migrant workers, are foreign nationals who come to Canada for a limited period for the purpose of filling gaps in our domestic labour supply. These workers compose a large portion of Canada’s food producing workforce. In 2017, temporary foreign workers accounted for 59 thousand jobs in Canada’s agricultural industry alone. The travel restrictions and exemptions for migrant workers in April 2020 delayed the arrival of migrant workers for the Spring season, creating uncertainty in the ability of Canada’s food system to match demand.
Despite the Government of Canada’s requirement that migrant workers entering Canada during the pandemic quarantine for 14 days before starting work, workplaces with high percentages of migrant workers have been hotspots for the virus. This is not a COVID-specific concern, but rather a magnification of the well researched phenomenon that unsafe living and working conditions mean many workers arrive healthy, but leave sick and injured.
Migrant workers are essential workers for Canada’s food supply and international export. The absence of regulatory oversight has led to the current unsafe working and living conditions for migrant workers in Canada. Bolstering employment standards will likely improve systemic vulnerabilities in Canada’s food system and will protect workers’ safety.
Not so Temporary
Canada first started accepting migrant workers to fill labour shortages on Canadian farms during the Second World War and continued using migrant workers to remain economically competitive.Foreign workers have become a mainstay in Canada’s agri-food industry as there is an insufficient supply of Canadian workers willing to work in such harsh conditions for low-wages.
The reality for contemporary migrant workers is that their work is often far from temporary. It has been recorded that most labour migrants return to the same Canadian communities “annually for eight months of the year, for sometimes more than 25 years.”
Canada’s Temporary Foreign Workers Program does not impose a cap on the number of migrant workers that can be hired. This results in the employers’ hiring process left largely to the freehand of the market.Employers sponsor the number of foreign nationals for work visas to match their labour demand. While demand-driven acceptance of migrant workers means that they arrive in Canada with work arranged, the current system also leaves them beholden to their employer.
Ripe for Mistreatment
The employer demand-driven system sets up migrant workers for vulnerability. From the outset, to receive sponsorship, migrant workers often accept poor “wages, working, and living conditions.” To remain in Canada, the worker must remain employed by their visa sponsor. Further, to be accepted back into Canada for future growing and harvesting seasons, migrant workers depend on positive performance evaluations and nominations to return.
On the ground, this has materialized as precarious working conditions with inadequate training and protective gear, long hours, and high levels of work-related injuries. In non-working hours, further risks arise, as we see amplified by COVID-19. High occupancy on-site living conditions sometimes lack adequate water, sanitation, and food, which creates a breeding ground for illness and disease. This is further complicated by transportation to work in vehicles loaded beyond seatbelt capacity.
Amidst the COVID-19 Pandemic, migrant workers were exempted from Canada’s border closure. This move signals the importance of migrant workers to Canada’s food security, which was reinforced by public statements by Canada’s Deputy Prime Minister and Prime Minister. In April 2020 migrant workers were front and centre in the mainstream news. The leader of the Bloc Québécois criticized that leaving quarantining measures to the private employing farms is inadequate and should be the responsibility of the state.
Despite the integral nature of migrant workers to Canada’s food system, the lax standards have resulted in the increased spread of COVID-19 and jeopardized the health of the community these migrant workers were hired to sustain.
For example, the Cargill meat processing plant in High River, Alberta hires a large proportion of migrant workers and “is the site of the largest COVID-19 outbreak linked to a single facility in North America.” As of May 6, 2020, 949 employees tested positive for COVID-19 with an additional 611cases of community spread directly linked to the plant. The reported carpooling and close living quarters of the Cargill workers is not the exception, but rather the reality for migrant workers in Canada’s agri-food industry. These conditions aggravated the spread of the disease according to Alberta’s Chief Medical Officer.
Inadequate Regulatory Protection
Generally, temporary foreign workers are protected by federal and provincial legislative instruments like Ontario’s Employment Standards Act, Labour Relations Act, and the Employment Protection for Foreign Nationals Act. However, these safeguards do not always adequately protect vulnerable segments of the workforce. In light of migrant workers’ high level of vulnerability and dependence on their employer, a robust system of checks and balances on employers’ power must be in place. Yet, the current system is only triggered through workers’ complaints.
Complaints-driven monitoring is not effective, since workers are often uninformed of their rights and the methods to report violations. Further, migrant workers face heavy pressure not to file complaints against their employer because of their dependence on the employer for continued employment and re-entry next season.
Some provincial regulations exclude migrant workers from certain protections normally in place for other workers. For example, regulations under Ontario’s Employment Standards Act exclude fruit, vegetable, and tobacco harvesters from entitlements to daily and weekly limits on hours of work, daily rest periods, time off between shifts, weekly and bi-weekly rest periods, eating periods, and overtime pay. The practical effects of these exclusions predominantly impact migrant workers because of their high participation in harvesting.
The Government of Canada has released guidance for employers to provide additional protections for temporary foreign workers during COVID-19. It remains to be seen whether these temporary measures are enough to protect Canada’s food supply chain, migrant workers, and the broader community in the short term, but more is needed in the long term.
First, the current complaints-based system could be complemented by routine audits on both the working and living conditions of migrant workers. Greater oversight over employers with migrant workers is necessary to prevent practices that jeopardize the health and safety of workers and prey on the workers’ reluctance to file formal complaints.
Second, regulations across Canada’s provinces that exclude farm workers from various minimum standards should be examined for reform opportunities. Enforcing improved employment standards for workers in the agri-food industry will likely improve conditions for those workers. As a co-benefit, this will likely improve the attractiveness of agricultural work to Canadians and increase the pool of domestic applicants for harvesting positions. The diversity and safety of workers—domestic and migrant—will make Canada’s food system more resilient to global shocks such as COVID-19.
Annie Arko & Callie Matz, “Migrant Workers in Canada’s Food Industry: Beyond COVID-19” Canadian Law of Work Forum (May 15 2020): http://lawofwork.ca/?p=12502
Nick Wells, “Lack of Protections for Migrant Workers Could be a ‘Disaster’ in the Making: Advocates” (5 April 2020)
Meredith MacLeod, “Farmers Warning of Supply Issues Due to Delay in Arrival of Migrant Workers” (10 April 2020), online: CTV News; Teresa Wright, “Concerns Raised About COVID-19 and Migrant Workers” (13 April 2020); Liny Lamberink, “Help Canada Grow Addresses Migrant Worker Uncertainty on Ontario Farms with Local Labour” (27 April 2020)
Wells,supra note 2; “40 Workers at Kent Bridge, Ont. Greenhouse Test Positive for COVID-19” (27 April 2020)
Kerry Preibisch & Jenna Hennebry, “Temporary Migration, Chronic Effects: The Health of International Migrant Workers in Canada” (2011) 189:9 CMAJ 1039.
Ibid; Lamberink, supranote 3.
Hennebry,supra note 6 at 3.
Chris Wright, Dimitra Groutsis & Diane van den Broek, “Employer-Sponsored Temporary Labour Migration Schemes in Australia, Canada and Sweden: Enhancing Efficiency, Compromising Fairness?” (2017) 43:11 J of Ethnic and Migration Studies 1854 at 1854-55.
Anelyse M. Weiler, “A Food Policy for Canada, but not Just for Canadians: Reaping Justice for Migrant Farm Workers” (2018) 5:3 Can Food Studies 279 at 279.
Hennebry,supra note 6 at 16-18.
Joel Dryden, “Filipina workers at meatpacking plant feel unfairly blamed for Canada’s biggest COVID-19 outbreak” (26 April 2020) [Dryden-a]; Joel Dryden & Sarah Rieger, “Inside the Slaughterhouse: North America’s Largest Single Coronavirus Outbreak Started at this Alberta Meat-Packing Plant: Take a Look Within”(6 May 2020)
David Staples, “David Staples: Dr. Hinshaw on Cargill outbreak” ‘I take every case that could have been prevented as an opportunity to learn” (22 April 2020)
“FAQs: Employment Protection for Foreign Nationals Act, 2009” (last visited 6 May 2020)
 Exemptions, Special Rules and Establishment of the Minimum Wage, O Reg 285/01, ss 25, 25.1, 26.
Ontario Growing,supra 20.