A RankandFile.ca series on the Temporary Foreign Worker Program
By Andrew Stevens
Nearly two years after the provincial government launched its consultation paper on labour law reform, the Saskatchewan Employment Act (SEA) was finally proclaimed at the end of April. With it, the province’s symbolic Trade Union Act was put to an ignominious end, and what once was the most progressive labour relations charter in Canada, now appears as a lonely Part 6 in the omnibus SEA. Meanwhile, the new floor of employment standards, or Part 2 of the Act, brings with it an indexed minimum wage and provides some solace to workers who occupy the growing low-wage industries. Even interns were rightly recognized in the new legislation and guaranteed compensation for their toil. Employers can now negotiate an extension to the working day and alter their commitment to overtime by averaging hours over a several week period, with the consent of employees. But is the SEA a model of modern and simplified legislation, as the government intended?
Let’s be clear that the Act came to pass when times were good and workers generally content, yet set up to confront unions and their influence when the boom ends. To this point we need to consider if the Act has satisfied the conditions of being a “modern” set of employment standards. On the labour relations front, some of the language, like that of a supervisory class of employee, was pulled out of the Conservative Grant Devine-era from the early 1980s, and can hardly be called new. And, changes to the union certification process introduced in 2008, which makes it more difficult for workers to unionize, have been in and out of fashion throughout Canada since at least the early 1990s. There is certainly something new about the Public Service Essential Services Act, but whether the provisional suspension of the right to strike is particularly modern is another question.
Most importantly, is the SEA equipped to deal with the reality of an economy increasingly reliant on foreign workers? Between 2003 and 2012, the number of foreign workers employed in Saskatchewan has increased by over 500%, from 1,500 to 9,300. An estimated 10,000 foreign workers now call Saskatchewan their (temporary) home. Despite this trend, daily cases of foreign worker abuse have caught the provincial and federal governments in the lurch. A symptom, it seems, of a hands off and quiet approach to enforcement and regulation at both levels. It is also clear that because of the Conservative and Saskatchewan Party commitment to free market principles, the Temporary Foreign Worker Program is actually working as intended. Unfortunately the outcome of this business-guided immigration policy is unpalatable to both social conservatives and the left in Canada.
Saskatchewan’s progressive Foreign Worker Recruitment and Immigration Services Act (FWRISA) offers some protection from malicious recruiters and immigration agents, but it stops short of making the exploitation of foreign workers and new Canadians a labour issue. The Ministry of Economy, which managers the FWRISA, and the program integrity unit established to oversee the legislation, has a short-lived history with the practices of investigation and enforcement. Only two weeks ago, the Saskatchewan Federation of Labour documented the scandalous fees imposed on a foreign worker privileged enough to find work in a major fast food establishment making $11 an hour. Since 2008 there have been no less than 200 “program integrity cases” involving the mistreatment of skilled and unskilled foreign workers in Saskatchewan. Third party representatives are at the heart of these infractions. Offenders might lose their right to legally offer services to foreign nationals coming to Saskatchewan, but otherwise these problems simply disappear. Compare this to the 61 prosecutions initiated by the province’s Labour Standards Division over the same period, and the posting of details on a government website.
Now, recruitment agencies like International Manpower are warning clients of the woes associated with foreign workers making “Canadianized” demands on their employers. Perhaps the new employment standards will function as an antidote for just such ambitious requests. The modified work arrangements allowed by the SEA could very well be creating more precarious conditions for Saskatchewan’s vulnerable workers, namely young people and temporary foreign employees.
Sadly, the proclamation of the SEA was met with little fan fare or resistance. Part of this is due to the seemingly innocuous nature of the new law. The most contentious, and arguably vile, language feared by unions, like the end to automatic dues check off, was quickly ditched before the consultation process wound up. With the pragmatic guidance of Minister of Labour, Don Morgan, the PSES Act is being re-crafted under the auspices of consultation to no doubt meet minimal constitutional standards. Such is the brilliance of a critical piece of legislation that at once satisfies the ideological marker of a conservative government, and their political allies, yet stops short of the evidently union busting laws attempted by the province’s Wildrose neighbours.
Still, there is much to learn from the process that brings us to the SEA, and the lessons it offers for the rest of Canada. Ontario’s Progressive Conservatives have watched somewhat enviously the Sask Party’s delicate, yet successful tackling of labour relations reforms since at least 2011. Our province’s PSES Act has also served as a model for Nova Scotia and that province’s attempt to rein in the power of nurses and the influential Nova Scotia Government and General Employees Union. Even the federal government turned to a blanket “essential service” designation as a means to arbitrarily suspended workers’ rights, although in a far less sophisticated manner.
Organized labour in the province, like other jurisdiction across Canada, also needs to revisit the word “modern” to establish strategies for dealing with emergent challenges. The UFCW has a long-standing history of organizing foreign agricultural workers employed under the SAWP (Seasonal Agricultural Worker Program), and their struggle for collective bargaining rights led to the landmark Fraser decision by the Supreme Court of Canada in 2011. In B.C., the Hospital Employees’ Union (HEU), CUPE’s health care division in the province, has even established contract language that requires the employer to give notice to the union when TFWs are hired. Both the Saskatchewan and B.C. federations of labour have, at least nominally, establish a pro-immigration position as a response to the rampant exploitation that has come to define the TFWP. With the fear amongst some temporary foreign workers that their status in Canada has been jeopardized by Minister Jason Kenney’s decision to suspend the food services and hospitality sector from the Program, an immigrant and employment rights based campaign by organized labour is urgently needed. This is the modern reality that employment standards legislation needs to address.
Saskatchewan has certainly become a model of change, but to what end we cannot yet be sure. What is certain is that the progressive legacy of our Trade Union Act has quietly vanished amidst the pages of a law that bears the mark of a “modern” political era in the province. Now let’s see how it works.