May 28

The Rights of Temporary Foreign Workers in Canada, Toronto Employment Lawyer

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Canada is a country distinguished by, and proud of, its diversity.  This diversity manifests itself in the employment world, as many foreign nationals travel to Canada to work temporarily and gain valuable Canadian work experience.  It is important to know that temporary foreign workers (“TFW”) have rights that must be respected in the workplace.  There are rules and regulations ensuring that they have access to fair wages, health insurance, and employment safety.  This blog post will aim to outline some of the major rights that TFWs can expect to have, and that employers must respect.

Basic Takeaways

Employers must:

– Pay for work;

– Ensure that the workplace is safe;

– Provide break time and days off; and

– Abide by the terms of an employment contract.

Employers cannot:

– Force TFWs to perform duties that they were not hired or trained to do;

– Force TFWs to work if they are sick or injured;

– Take passports or work permits away from TFWs; and

– Make TFWs pay for any fees associated with their recruitment and hiring.

Wages

Employers must pay TFWs at least the same wages that a Canadian citizen would receive to work in the same position.  Further, employees hired through the Temporary Foreign Worker Program are always hired in either the high-wage position stream or the low-wage position stream.

High-wage and low-wage is determined based on the median average wage by province (i.e. high-wage positions are those paid above the median provincial wage and low wage positions are those paid below the median provincial wage).  This type of information can be found in the Labour Market Impact Assessment letter and annex provided by the employer to apply for the TFW’s work permit.

Employment Contracts

An employment contract is a signed agreement between an employee and an employer, which establishes the rights and responsibilities of both parties, including working conditions.  Low-wage TFWs must sign an employment contract with their employer, whereas it is only recommended for high-wage TFWs.

At a minimum, employment contracts should cover the following details:

      1. Details about job duties;
      2. Deductions from pay: By law, employers must take certain deductions from pay (Canada Pension Plan, Employment Insurance and income tax). Depending on the worker category, there may be other allowable deductions;
      3. Conditions of employment: The contract should include hours of work per day and week, break times, days off, and overtime provisions.

If an individual is hired as a low-wage TFW or under the Agricultural Stream, the employer must:

      1. Pay for all transportation costs to and from Canada;
      2. Provide private health insurance until the TFW is eligible for the provincial or territorial health insurance plan; and
      3. Ensure the available housing accommodations.

Accommodations

Employers must do the following with respect low-wage TFWs:

      1. Ensure that suitable and affordable accommodation is available;
      2. Provide suitable accommodation at an affordable cost; or
      3. Offer accommodation in their primary residence.

In addition, caregivers living in their employer’s primary residence cannot be charged for rent or meals.  Temporary farm workers hired under the Seasonal Agricultural Worker Program or the Agricultural Stream should have their accommodation details in their employment contracts.

Health and Safety

All workers in Canada have the right to a safe workplace.  If TFWs will be operating equipment and/or machinery in the course of their employment, they should have the proper training and safety equipment to do so.

TFWs have the right to refuse to do work that they believe is a serious risk to their health and/or safety, until the danger is removed, they have received the proper training, or the problem no longer exists.  Employers cannot force TFWs to do work that they believe is dangerous, or fire or refuse to pay them due to same.

Health and safety concerns may also be reported to the workplace health and safety office in a given province or territory.

If there is an accident at work, TFWs should tell their supervisor or employer as soon as possible.  Provinces and territories may offer workers’ compensation, but if TFWs do not yet qualify for the provincial or territorial health care plan, employers should provide private health insurance until they are covered.

If you have any questions about the foregoing or are in need of some employment law advice, contact Monkhouse Law today for a free 30-minute consultation.

About the Author: Miguel Mangalindan is a Senior Associate Lawyer at Monkhouse Law where he practices Employment, Human Rights and Disability Insurance Law.

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