Guest post by Catherine Dauvergne, Professor of Law, University of British Columbia. This post was originally published on In Due Course: A Canadian Public Affairs Blog on 3 June 2014.

I admit to being a bit surprised about how just how the temporary foreign worker program hit the front pages over recent weeks. For migration policy wonks, the myriad problems with temporary foreign worker programs are well known, and usually do not centre on putting citizen workers out of jobs.

I’ve been mulling it over and have come to the conclusion that the current uproar might even have been deliberately provoked to provide a politically palatable way to end to the most progressive aspect of the temporary foreign worker program.

Temporary foreign worker programs are not new. Canada has relied on temporary foreign workers off and on for much of the last century. Many other Western democracies have done the same.

Source: rabble.ca
The basic idea behind a temporary non-citizen worker program is to create a category of workers who have fewer rights than citizens or permanent residents. This framework ensures that the workers can be directed to particular employers or sectors, and can be compelled to leave when their work is finished. Temporary foreign workers are typically guaranteed the same minimum wage as national workers and have very similar work rights. Not surprisingly, as their right to remain is tied directly to their work, this group of employees is very unlikely to exercise labour rights tied to working conditions, work safety and other industrial baselines.

Which some employers could see as convenient.

I’ve done some writing about this with Sarah Marsden recently, see here and here (gated, SSRN version here).

Canada's agricultural sector relies on thousands of temporary foreign workers during harvest time (Source: CBC News)
The Canadian temporary foreign worker program is employer driven. Once an employer can demonstrate that she has made good efforts to hire national workers (in compliance with all rules about work rights and pay), but has been unable to, she can then have permission to hire foreign workers on a temporary basis. This linchpin of the process is known as a ‘labour market opinion’ or LMO. LMOs are requests that come from employers, they are not assessments about a labour market written by government analysts. The idea of the ‘labour market’ is variable (ask any two economists and you’ll see my point). It could be an idea about people looking for work in the Lower Mainland of British Columbia, or it could be about Japanese-speaking sushi chefs with 20 years experience currently unemployed.

The degree of scrutiny can also vary. Duh.

The typical critiques of temporary foreign work programs over the past quarter of a century have been a) it is hard to get people to leave when the work ends; and b) temporary workers are routinely exploited. Most critics care about one of these problems more than the other, depending on their political bent.

In 2009, for the first time, Canada allowed more temporary foreign workers than permanent economic migrants. A couple of years later, the government started a pilot program for low-skilled workers. This is significant because temporary foreign work is most often about the highly skilled, and thus creates opportunities and global mobility that contribute to the global gap between the rich and the poor. The opportunity to work in a prosperous Western country is, comparatively, worth a lot more to a woman with a high school education from the global South than it is to a pipefitter weighing the choice between the Scottish and the Canadian oil patch.

A containable scandal about restaurant workers in Alberta is all about those who are categorized as ‘low-skilled’. It might just prove to be the government’s reason to shut down the one, very small, part of Canada’s foreign work program that actually has some potential to ameliorate rather than exacerbate global inequality.  Certainly public opinion is currently being roused to support closing the program to those defined as ‘low-skilled’, across all parts of the political spectrum.

Which is wrong, because the true fix would be to the ‘duh’ factor.

But the issue is also confusing to object to, because of the way it splits the opinions of those of us who currently work in this area, and leaves (some of) us in the awkward position of having to defend temporary foreign work in order to object to the current discourse.  And that is distasteful as temporary foreign work is just a bad idea all round.

Even railway workers who paid the head tax, ended up with a right to remain permanently in Canada.

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