The Auditor General of Canada, Karen Hogan, recently issued a scathing report on Employment and Social Development Canada’s (ESDC) lacklustre enforcement of the pandemic regulations designed to protect temporary foreign farmworkers.
These essential workers, on whom Canadians depend for their local food supply, are highly vulnerable to COVID-19 infection as they work elbow to elbow and inhabit crowded bunkhouses provided by the farm owners who employ them.
Workplace outbreaks were common, resulting in deaths and high caseloads among migrant agricultural workers. None of this should have happened.
At the beginning of the pandemic, the Canadian government amended the regulations to place additional responsibilities on the employers of temporary foreign workers to help prevent the spread of COVID-19.
These included a requirement that employers provide appropriate housing and pay wages during the mandated 14-day quarantine, and provide separate accommodations for workers who became infected or showed symptoms of COVID-19.
These regulations were in addition to existing obligations to comply with applicable employment laws, including occupational health and safety regulations and housing standards, amplified in amendments to the regulations in the Immigration and Refugee Protection Act adopted in 2015. Recognizing the added enforcement burden these COVID-related regulations imposed, the government allocated an additional $16.2 million in July 2020 to cover the cost.
Why, then, did migrant agricultural workers suffer so greatly when the government had supposedly taken such care to ensure their safety?
What the report had to say
The Canadian government failed to enforce the law even after it was advised that its system of inspections and enforcement was deeply flawed.
In 2020, the ESDC evaluated almost all employers as compliant even though most quarantine inspections had little or no evidence to support that assessment. Even worse, in the presence of evidence that employers might not be following the rules, there was indication of no further enforcement action. Instead of conducting follow up inspections or imposing penalties for violations, these employers were labelled “compliant.”
The Auditor General notified senior government officials of her concerns in December 2020 and February 2021, but the problem got worse. An even greater percentage of inspection reports lacked evidence to support a finding that employers were compliant or that further enforcement action was taken when there was evidence of non-compliance.
But the problem was not limited to quarantine inspections. Outbreak inspections often failed to provide enough information to determine whether employers were providing sick or symptomatic workers with separate accommodations. And regular workplace inspections, including those related to housing, were also often of poor quality and incomplete.
These are shocking findings. But why did the Canadian government fail to live up to its commitment to protect the health and safety of temporary foreign workers while they grew the food we needed?
The Auditor General doesn’t fault individual inspectors — nor do we. Rather, she points to managerial problems, including misunderstandings of the urgency of pandemic requirements and poor quality control, among others.
Flawed by design
We think the problems run deeper. Along with Sarah Marsden, a law researcher at Thompson Rivers University, we published a report and an article, Flawed by Design, critically scrutinizing the federal enforcement regime for temporary foreign workers before the pandemic.
Based on data obtained through freedom of information requests, we discovered that onsite inspections were optional. In the first six months of the 2018-19 fiscal year (the last year for which we had data) only about 55 per cent of inspections were onsite.
The outcome of these inspections was also surprising. When we looked at all completed inspections for the 2.5 years for which we had data, nearly half of all employers were found to be in violation the first time. However, of those non-compliant the first time, 90 per cent were labelled “compliant with intervention,” meaning in the end only 10 per cent of inspected employers were deemed non-compliant.
The most common reason an employer was labelled non-compliant was for administrative reasons, signifying they likely had not co-operated with the inspector.
Lacklustre enforcement
The data demonstrate a continuity between the light-touch enforcement regime that prevailed before the pandemic and the one that followed it. Inspectors are instructed to focus on education and compliance assistance, not law enforcement.
As long as employers exhibit cooperative behaviour, it is assumed they have or will comply with the law without requiring further evidence.
This pattern of lax enforcement is not unique to this agency. We’ve studied employment standards enforcement regimes in Canada since the late 19th century and more recently were part of a team that conducted a multi-year, multi-methods study of employment standards enforcement in Ontario.
In the context of the federal inspection regime, lax enforcement at the provincial level compounds the problem because federal regulations require compliance with provincial and local standards, which federal inspectors are unable to directly enforce.
While the details vary, the basic story repeats itself. Until we recognize that the problems with our enforcement systems require more than a few managerial tweaks, the kinds of problems identified by the Auditor General will persist and the basic promise we make to workers that they will be protected at work will once again be broken.
Eric Tucker received funding from the Social Sciences and Humanities Research Council's Partnership Grant Program for a study on employment standards enforcement in Ontario. He is also a member of the Migrant Worker Health Expert Working Group formed in 2020 to provide expert evidence-based advice to both federal and provincial governments so they establish adequate standards and practices to protect the health and safety of migrant agricultural workers.
Leah F. Vosko received funding from the Social Sciences and Humanities Research Council of Canada's Partnership Grant Program for her participation in "Closing the Enforcement Gap: Improving Employment Standards Protections for People in Precarious Jobs." She is also a member of the Migrant Worker Health-Expert Working Group.
