Written by Talia Joundi, Student at McGill Faculty of Law, with Jerlie Pascual, Myriam Dumont Robillard and Jade Fabiano.
From their country of origin, through transit, and once arrived at their destination, the journey of migrant workers exposes the ongoing conflict between human rights and immigration laws. In Canada, migrant workers are confronted with federal and provincial laws that reinforce the precariousness of their status at each step of the labor migration cycle – from recruitment, to obtaining a work permit in a Canadian province, to seeking renewal of their permit and eventually repatriation.
A recent report produced by The Metcalf Foundation found that since 2000, the number of migrant workers employed in Canada has more than tripled (see Faraday, “Made in Canada,” 2012) A growing number of these migrants are foreign domestic workers who enter Canada through the federal Live-in Caregiver Program (LCP). Migrant domestic workers must complete an equivalent of 24 months of full time work, or 3900 hours of caregiving work all the while residing in the private household of their employer before they can apply for permanent residency status. This process must be completed within four years after entry.
The LCP allows migrants a direct path to permanent residency. The legal requirements outlined in the terms and conditions of the employment contract make it a precarious route; one that leaves domestic workers vulnerable and subject to exploitation. The path is also costly, riddled with employers, recruiting agencies and immigration consultants who disguise the challenges migration can involve, while also demanding exorbitant sums for their services. Migration is an emotional struggle – workers are separated from their families and are then faced with a lack of permanent status and isolation upon arrival to Canada.
Domestic workers in Canadian households often take complete responsibility of children in the absence of parents, or care for the elderly or persons with special needs. Once employed, their contract obligates them to live in the same house as their employer, and denies them the right to change employers. Workers are effectively tied to the employer whose name appears on their work permit. And yet, since employers do not have to register themselves, there is actually no official record of caregivers or where they work. The lack of control over their employment situation means domestic migrant workers are vulnerable in a number of ways. Members often face difficulty securing payment, accessing public programs, or meeting their work permits requirements and deadlines. Abuses range from being over-worked, not receiving the salary they deserve, as well as physical or verbal abuse.
The Association des Aides Familiales du Quebec (AAFQ) is a non-profit community organization dedicated to having the work of temporary workers recognized in Canadian society while also helping them to secure their rights. “Ce qu’il faut comprendre c’est que la relation employeur-employés est totalement inégale principalement à cause des critères imposés par le programme,” commented Myriam Dumont Robillard, President of the Board of the AAFQ.
The power afforded to the employer keeps caregivers in a constant state of paranoia and terror. Workers not only face the threat of being dismissed from their only source of employment, but also the ever-present threat of having their permits confiscated and being deported. The AAFQ has found that many workers work up to twenty hours per day. Caregiving is also a racialized and gendered occupation, with 97% of workers being women, 80% who are originally from outside of Canada and 95% from the Philippines. On average, immigrant women in Canada earn 20% less than Canadian women.
The LCP sustains dependence in migration relationships at the cost of accountability and a more sustainable approach to immigration. With little attention paid to the rights of migrant workers in employment relationships, the exploitation that begins at the recruitment stage is only compounded at each successive stage of the migration cycle. The result, as the Metcalf report shows, is that “the laws construct the migrant worker – and migrant work experience –in ways that predictably produce significant insecurity and undermine the possibility of decent work.”
« L’impossibilité de quitter son emploi librement, sans mettre sa propre survie en danger en ne pouvant travailler pour quiconque au Canada durant plusieurs mois, revient à légitimer une forme de travail forcé dans les ménages canadiens, » says Dumont-Robillard. Although the Canadian government claims that temporary workers enjoy the same rights as other Canadian workers, these formal rights remain elusive as long as foreign workers are unable to enforce them.
« Dans ce contexte, nous pouvons soutenir que les critères du programme sont effectivement anticonstitutionnels en violant plusieurs droits fondamentaux, tel que le droit à la liberté et le droit à la vie privée, puisqu’elles ont également l’obligation de résider chez leur employeur, » added Dumon-Robillard.
Nevertheless, there are those working to support and bring attention to the experiences of migrant caregivers. The AAFQ has represented workers under the LCP at the political level both locally and internationally. They understand that it is imperative to provide live-in care givers an effective means of organizing in order to communicating their concerns to the public.
Jerlie Pascual arrived to Canada in 2000 under the LCP, started volunteering at the AAFQ and after receiving her permanent residency, began working as a full-time case-worker. With an open door policy and a busy telephone, catching her with a free moment is not easy. Her days revolve around supporting members emotionally as well as with their applications. “It’s a learning process – and it’s the caring, and the understanding and the never ending knowledge that I’m here for,” Pascual said.
Pascual explains that women from the Philippines are encouraged to grab any opportunity to migrate in order to earn money to send back home. Entry to Canada as a skilled worker is difficult, and so, the LCP is a valued alternative. Nevertheless, Pascual is familiar with the dangers of the system. Once the women secure a job with a Canadian employer, they live under the threat of losing their chance to file for residency and are thus unlikely to speak out against unfair treatment.
“If you don’t put in the requisite months, they will deport you – so what’s the point of getting justice against the employer? They would rather embrace the abuse, because the alternative is seen as worse,” she said.
Jade Fabiano is a third year law student at the University of Montreal works with the AAFQ helping members fill in immigration forms and work permits, while also informing them of their employment rights. “I think that as future female lawyers, we are given a voice to instigate social mobilization, to get the government’s attention and eventually amend the live-in caregiver program’s regulations,” Fabiano said.
Canada has not incorporated conventions adopted by the ILO or the United Nations, such as the most recent International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Nevertheless, the principles laid out serve important policy guidelines.
“Notwithstanding our important legal corpus and several advances in combatting discrimination here in Quebec, achieving equality will require political leadership to translate this principle within the specific policies,” added Fabiano.
Dumont-Robillard adds that,“À partir du moment où les lois canadiennes ne respectent pas les critères minimaux de réglementation de cet emploi fixés et acceptés par la grande majorité des pays à l’international, il devient difficile de légitimer le traitement que l’on réserve à ces femmes chez nous ; ces femmes qui, ne l’oublions pas, s’occupent de nos enfants, aînés et autres personnes qui nous sont chères afin de nous permettre de mener notre vie sans contrainte.”
The experience of migrant workers under the LCP makes clear that foreign caregivers must be granted protection of their rights, which includes the right to change employers, the right to choose their place of residence, and the right to unionize as well as fundamental rights to security, liberty and dignity. Migrant works must be able to access adjudicative mechanisms in order to enforce their rights. The Metcalf Foundation recommends legislative amendments to ensure that all terms of migrant workers contracts and the right to a hearing on termination are enforceable before a competent administrative body. “Il s’agit bel et bien d’une vulnérabilité qui est choisie, créée et imposée par les lois canadiennes. En s’opposant à cette forme d’esclavage moderne, chaque individu peut faire pression pour que des modifications soient apportées à la loi. De très simples modifications peuvent faire toute la différence,” says Dumont-Robillard.
Simply because the situation of migrant workers is shrouded in silence or misrepresented does not make the difficulty or their situation any less real or urgent. In order to make the situation recognizable to Canadians the situation of temporary workers needs to be confronted. This is the responsibility not only of NGOs and community groups but also, of policymakers, unions, solidarity networks and individuals across Canada.
The AAFQ launched a legal clinic this month to facilitate workers’ access to justice, in particular, access to legal information, open to all caregivers working under the LCP. The clinic will be held twice a month in conjunction with la Clinique Juridique Juripop and Service Employees Union local 800 (Union des Employés de Services). Visitors are welcome at the AAFQ (20, Boulevard de Maisonneuve Ouest) anytime Wednesday to Saturday, or can learn how to support the AAFQ by visiting their website at aafq.ca.