Protecting and restricting foreign workers

In April 2009, a law came into effect protecting foreign workers in Manitoba. This law, known as the Worker Recruitment and Protection Act, has now been in effect for more than three years. Has this law protected foreign workers as promised, or is it turning employers away from recruiting foreign workers? The answers to both these questions might be "yes."

The act set up a system that requires recruiters of foreign workers to be licenced and employers of foreign workers to be registered. If recruiters or employers act in violation of the law, they can be punished.

Since the law came into effect, Manitoba's Employment Standards Branch has analyzed more than 5,000 employers in search of violations. To date, approximately 400 formal investigations have been completed and about 47 per cent of these formal investigations have uncovered some form of non-compliance.

Violations that have been found range from employers not paying promised wages to workers being charged illegal recruitment fees. In total, employment standards has issued nine administrative penalty orders that have resulted from investigations that began in relations to tips or concerns about foreign workers.

The integrity of the foreign worker system makes it important that violators be pursued. Employers of most foreign workers to which this law applies must offer wages that are high enough to ensure Canadian-based workers are not undercut in place of cheaper foreign labour. As a result, the enforcement of this law is important to ensure any competitive advantage a business may get for violating the law is eliminated.

While Manitoba should be applauded in its efforts to pursue employers and recruiters who break the law, the bureaucracy that has been created by this law may be restricting the flow of workers to Manitoba.

In the 12-month period before the legislation came into force, more than 2,000 foreign workers were issued permits to work in Manitoba in jobs this law applies to.

In 2009-10, that number dropped to just over 1,300.

In 2010-11, that number dropped to just over 1,100, and in the 12 months ending March 2012, the number dropped to just over 1,000.

Is this drop in foreign workers a result of the recession? Is this drop a result of a few large employers bringing in fewer foreign workers than before? Or has the legislation itself created restrictions that may be causing this decrease in foreign workers?

Under the law, the only individuals who can recruit foreign workers are lawyers and licenced immigration consultants. Unfortunately, if a Manitoba employment agency does not employ a lawyer or immigration consultant, it cannot legally recruit foreign workers. While there are 17 recruiters licenced to recruit foreign workers, most of the bigger employment agencies are not on this list. These agencies, however, do appear on the list of more than 46 registered employment agencies that are licenced to recruit domestic Canadian workers. If a company is good enough to search for Canadians to fill jobs in Manitoba, why are these companies not good enough to search for foreigners?

In 2008, I was part of a committee of the Manitoba Bar Association that was critical of the proposal to restrict foreign worker recruiters to lawyers and licenced immigration consultants.

Back then, the Manitoba Bar Association was concerned that restricting foreign worker recruitment to consultants and lawyers would unfairly restrict human-resource professionals who are qualified to do human-resource recruitment for businesses in Manitoba from providing this service.

The time has come for Manitoba to allow more companies to recruit foreign workers. This will allow more competition in the marketplace and also allow Manitoba firms who are licenced to recruit from the domestic Canadian workforce to get involved in foreign-worker recruitment. Because the current legislation already has additional measures built in to protect foreign workers from unscrupulous recruiters, prospective foreign workers will still be safeguarded.

R. Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.

Republished from the Winnipeg Free Press print edition July 30, 2012 A10