Mexico - Canada: Grievance and remedy

Mechanisms for Mexican migrant workers to hold exploitative recruiters accountable are not fully developed. Under the law, labour recruiters are liable for repatriation costs if a worker is deceived regarding their working conditions overseas, but the law and the regulations make no provision for other forms of remedy or compensation for migrant workers. Workers can request an inspection of recruiters through the STPS or complain to the Public Ministry (Ministerio Público) if they have been defrauded, but in practice, inspections of labour recruiters responding to complaints are very rare. Migrant workers who file complaints face blacklisting by recruiters, and this deters others from making complaints. For SAWP workers in Canada, Mexican consulates in Canada, which operate a 24/7 hotline, are the designated first point of contact for workers who have a grievance. Their approach is to seek mediation and if this cannot be achieved, to explore options for workers to transfer employers - only raising cases with the Canadian authorities if they have reason to suspect a violation of federal or provincial law. The consulates have a heavy workload and their resources are stretched thin. Both workers and those who support them have repeatedly raised the tendency of consular staff to side with employers, apparently fearful of dissuading agricultural employers from hiring Mexican workers. Nevertheless, trade union representatives and other experts noted that Mexican consular staff are often proactive and committed to supporting workers with grievances, and most agree that the enhanced authorities the SAWP awards to origin state officials improves workers’ abilities to raise complaints, as compared to workers outside the SAWP.

Canada has a proliferation of mechanisms to accept complaints from workers. Indeed some experts argue that Canada’s labour protection systems are too heavily dependent on workers complaints and are insufficiently proactive. Complaints can be raised in a range of ways, with the nature of the issue determining the path taken: workers can for example pursue a provincial employment standards claim; provide a “tip” to federal authorities for non-compliance under the TFWP; make a claim of discrimination under provincial human rights codes; file a complaint to the national immigration consultants regulator; and/or a criminal complaint of trafficking. It can be confusing for workers to know which is the appropriate complaint mechanism to pursue. There is no funding for legal aid for migrant workers bringing employment cases, unless they can be classified as trafficking, so workers are often reliant on intermediaries in civil society organizations and unions to support them. With such support, workers can and do file cases successfully, most commonly being awarded back payment of wages owed to them. Seasonal workers can be reluctant to make complaints as processes are time-consuming, with federal complaints taking around 200 days - normally longer than their time in the country. The most important barrier to workers raising grievances is the fear of retaliation, in particular contract termination and repatriation. Employers can terminate any worker who has been employed for less than two years by providing between 7 and 14 days notice depending on the province, or by providing payment in lieu of notice. Workers who have been employed for shorter periods of time can be terminated without notice. Combined with the closed work permit that is an integral part of the TFWP, this reduces the likelihood of workers making a complaint, as employers have the ability in practice to terminate the workers and repatriate them. In 2019, the government introduced the Open Permit scheme for vulnerable workers, “to provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer.” It is currently too early to tell if the scheme will be effective in increasing workers’ confidence in accessing grievance mechanisms by significantly diminishing their fears of retaliation. Early feedback indicates that while those who do apply have a good chance of being successful, applying for the scheme is complex and challenging for workers who do not have assistance from civil society or union groups, something the government has acknowledged. Workers and worker organizations have also raised concerns that even if a worker receives an open work permit to leave an abusive employer, workers still face challenges in securing another job, applying for employment insurance and finding alternate housing.

2020 saw the introduction of an additional grievance mechanism through the Canada-US- Mexico Agreement (CUSMA) and its rapid-response labour mechanism that applies to the three governments. Two complaints under this new mechanism are currently under review.

Recommendations to the Mexican government:

• Increase resources for consulates in Canada, and explicitly instruct officials that their priority consideration must be the safety and dignity of workers. Ensure that details of all complaints by Mexican workers regarding their employers are communicated to Canadian federal and provincial authorities, even where the consulate resolves these through mediation.
• Establish accessible and effective grievance mechanisms for workers subjected to abuse and fraud, whether by licensed or unlicensed recruiters.
• Fully empower PROFEDET to assist Mexican migrant workers and job seekers who have been victims of labour recruitment fraud.
• Follow up on complaints and keep migrants notified to build confidence in the inspection processes.

Recommendations to Canada’s federal government:

• Provide federal funding for Legal Aid to assist migrant workers, in particular to help identify which entity is appropriate to raise complaints with, and to assist the filing of federal and provincial complaints and related processes, including obtaining open work permits in situations of abuse.
• Reduce the length of time taken in processing federal complaints under the TFWP, and provide feedback to workers on progress with these complaints.
• Reduce the administrative burden associated with applying to the Open Work Permit for Vulnerable Workers scheme, to allow workers to lodge complaints without fear of being repatriated.
• Carry out and publish a review into the nature of the role played by the employer-specific work permit in preventing victims of labour abuse from coming forward to make complaints to law enforcement authorities.

Recommendations to Canada's federal and provincial governments:

• Introduce measures to prevent the rapid repatriation of workers, similar to recent changes introduced by Quebec; and facilitate the continuation of inspections and compensation to workers from federal and provincial inspections even after the return to their countries of origin.