Mexico - Canada: Implementation and enforcement

The Ministry of Labor and Social Welfare (STPS) is the lead government agency on the recruitment of migrant workers seeking work overseas, working with the Ministry of External Relations (SRE) and others. The General Directorate of Federal Labour Inspections, within STPS, is empowered to carry out inspections of licensed recruitment agencies. However, officials told us that the inspectorate is mainly focused on employment standards within Mexico and that its staff are not properly trained to inspect the recruitment agents who deploy Mexican workers abroad. There is no evidence of a systematic inspection regime for recruitment agencies - civil society organisations report that STPS rarely inspects recruitment agencies, even on receipt of complaints and two recruitment agencies told us they had never been inspected. Victims of fraud by recruitment agencies have the right to report the crime to law enforcement authorities themselves, but the authorities have not invoked this provision to tackle the recruitment industry except in some rare large cases. The STPS is better resourced and empowered in relation to the SAWP, which it manages through its National Employment Service (SNE) offices around the country, in coordination with the SRE and its Embassy and consulates in Canada. There have been instances of corruption within the administration of the SAWP, with some SNE officials who control elements of the application process for the scheme charging workers for access. Officials acknowledged that such cases were “not rare”. Among the cases that have been investigated, dismissal appears to be the most serious penalty. We are unaware of cases in which SNE officials have been prosecuted for such practices.

Canada’s federal governance structure creates varying legal and enforcement regimes relating to migrant workers’ recruitment, immigration and employment, depending on the province and sector in which they work. The result can be confusion over jurisdiction and responsibility, which has been brought into sharp focus during the Covid-19 pandemic. Employment and Social Development Canada (ESDC) has been mandated since 2015 to inspect whether employers are respecting the terms under which they are approved to hire migrant workers under the TFWP - this includes complying with relevant federal and provincial laws that regulate employment and recruitment, as well as the protection of the Canadian labour market. ESDC carries out around 2800 inspections per year, representing 13% of all TFWP employers. Inspectors can issue warnings, financial penalties, a ban from the TFWP, and/or revocations of valid Labour Market Impact Assessments, which are necessary to hire foreign workers. Companies that are found non-compliant are named on the IRCC website. The programme is designed to be “remedial, rather than adversarial”. According to available data and analysis by Marsden, Tucker and Vosko, inspectors found non-compliance with almost half of the employers they inspected in 2017/18, but the vast majority were resolved through “corrective measures” such as compensation to workers. Only about 3% of employers inspected were penalised, and only in a handful of those cases were employers fined more than CAD$5,000 (US$4,100), raising questions about whether the inspection programme adequately deters poor practices. Provincial authorities carry out inspections related to employment standards, workplace safety, and recruitment. Concerns have been raised that some provinces, including Ontario, Alberta and New Brunswick, focus mainly on responding to complaints by workers rather than on proactive inspections, which means that those who find complaining more difficult - including migrant workers, whose legal status is tied to their jobs - may be covered less by the inspection programme. Legislation in Ontario, BC, Saskatchewan, Manitoba, Quebec, and Nova Scotia allows for employers to be held responsible for the actions of recruiters, which should in principle increase employer adherence to fair recruitment practices. In terms of law enforcement, prosecutions and convictions for fraud by immigration consultants and trafficking are relatively rare - an average of just under 5 per year for immigration consulting fraud and 2-3 for trafficking. CBSA and RCMP officials, which have the respective federal leads on the two issues, acknowledge that investigations of the offences are time-intensive and victims are often unwilling to come forward, something experts argue is related to the closed work permit. Provincial criminal investigations of labour recruiters are also rare and time-intensive, with only a few successful prosecutions reported in recent years.

Recommendation to the Mexican government:

• Ensure that inspection of licensed recruitment agencies and investigation of complaints by workers against recruitment agencies is carried out by an effective and sufficiently resourced labour inspectorate.
• Hold accountable any STPS or SNE official accused of demanding or accepting illegal payments for access to government migration programmes, including through referring them to law enforcement agencies, and make information publicly available on the number and nature of such cases identified.

Recommendations to Canada’s federal government:

• Undertake a greater number of employer inspections each year, to increase the likelihood of being inspected; consider increasing employer compliance fees to fund additional inspections.
• Strengthen the legislative authorities for the federal government to require employers to compensate migrant workers (if possible, under the Constitutional authorities in (s. 92.10.(c)), and formally publish information on the number of cases where employers are required to take corrective measures, the amounts of money compensated to migrant workers, and what non-compliances these amounts relate to.
• Ensure that federal inspectors always interview migrant workers, without employers or supervisors present, during inspections, and provide channels for them to communicate any threats or retaliatory measures following inspections.
• Ensure that inspectors include questions related to worker payment of recruitment and related costs that are prohibited under the TFWP; and that they hold employers accountable when workers have been charged for these costs, including by third parties contracted by employers.
• Require employers to clearly display summary feedback from completed federal inspections in the workplace, so that migrant workers can view the conclusions and outcomes of inspections.
• Increase resourcing attached to the investigation and prosecution of immigration fraud, and labour trafficking, by CBSA and RCMP respectively.
• Use federal/provincial/territorial working groups to improve coordination and information sharing between federal and provincial inspection regimes.

Recommendations to Canada’s provinces and territories:

• Ensure that businesses in sectors of the economy with significant representation of migrant workers are subject to regular and sustained proactive employment standards inspections.