Month: December 2020

Workers speak out for International Migrants Day: open letter

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The below letter is compiled from workers at farms where there are ongoing COVID outbreaks, and includes the workers’ own words in a second short letter.

TO:     Cabinet Committee on COVID-19 

The Right Hon. Justin Trudeau, Prime Minister
The Hon. Chrystia Freeland, Deputy Prime Minister, and Committee Chair
The Hon. Jean-Yves Duclos, President of the Treasury Board, and Committee Vice-chair
The Hon. Navdeep Bains, Minister of Innovation, Science and Industry
The Hon. Bill Morneau, Minister of Finance
The Hon. Melanie Joly, Minister of Economic Development and Official Languages
The Hon. Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion
The Hon. Patty Hajdu, Minister of Health
The Hon. Bill Blair, Minister of Public Safety and Emergency Preparedness
The Hon. Kirsty Duncan, Deputy Leader of the Government in the House of Commons

Ontario Command Table COVID-19

The Hon. Doug Ford, Premier of Ontario
The Hon. Christine Elliott, Minister of Health
The Hon. Merrilee Fullerton, Minister of Long-Term Care
The Hon. Monte McNaughton, Minister of Labour, Training and Skills Development
Helen Angus, Deputy Minister of Health, and Chair of the Command Table
Dr. David Williams, Chief Medical Officer of Health, Public Health Ontario
Dr. Peter Donnelly, President & CEO

RE: OUTBREAKS AT ONTARIO FARMS AND WORKERS’ RESPONSES

Today, on International Migrants’ Day, it angers us to report that there are multiple COVID-19 outbreaks at farms across Ontario. Some of these farms have had multiple outbreaks since the start of this pandemic. Since we last wrote in support of migrant farmworkers, who numbered in the thousands during the first wave, the province and federal governments have taken little to no action. Their only actions to date have been to provide funds to the employers, who we have repeatedly stated are not doing enough to protect their workers.

The following letter provides an overview of workers’ concerns. They have decided to speak about the conditions they are still made to work under, or quarantined within, because neither their employers nor provincial nor federal officials have taken this pandemic seriously enough. We have anonymized their names and their employers to protect workers’ safety.

All the workers we spoke to have stated that there are many cases of COVID at their workplace. Yet, their employers have either refused to disclose this information, or they have taken steps to protect themselves (through quarantine), while forcing their workers to continue reporting for work. One worker stated that their employer has known about outbreaks in their workplace for months, and yet only informed workers about the newest outbreak this month. Another worker only learned of COVID-positive cases in their workplace from other workers who tested positive. Some workers do not know their COVID status because their employers have not allowed them to get tested if they are not showing symptoms, or else have tested them and have not informed them of their own test results. Many workers are working without knowing whether they are COVID positive.

Multiple workers spoke of a lack of appropriate COVID-19 protocols, both in their workplaces and in the shared accommodations provided to them by their employers. Some worked with appropriate social distancing, but others had no such protections and worked in close contact with co-workers who later tested positive for COVID. At their bunkhouses, multiple people share bedrooms, kitchens, and bathrooms. Some report dozens of people using common spaces without appropriate sanitation.

Workplace protections must go beyond providing PPE, as employers are still not taking appropriate measures to sanitize workplaces, and are placing the onus on workers to take responsibility for COVID outbreaks, rather than addressing systemic workplace issues. This has created a stressful and toxic working environment, where workers are concerned for their health, and for their jobs if they are believed to violate workplace policies.

One worker reported that they were given a warning when they refused to rewear dirty masks. Other farm employers provided almost nothing at the beginning of the pandemic, forcing workers to rely on their own funds for appropriate PPE. The disinfection processes used at some greenhouses are not safe to work within, and yet a worker stated that they were made to return to freshly sprayed greenhouses and breathe unsafe air.

In the midst of COVID concerns, workers continue to deal with long-standing health and safety issues. They work long hours with few breaks, including bathroom breaks, and receive warnings if they take time off for their own health and in light of the exhausting, thankless work they do. They are told to work with chemicals they are not properly protected to use, and for long periods that are hazardous to their health – they report having skin irritation and respiratory problems, among other issues. When they inform their employers about these issues, their concerns are dismissed, or worse – they face reprisal.

The workers who spoke to us understand that their employers care more about profits than they do about the health and safety of their workers. While their employers get tested, stay quarantined, and deny COVID outbreaks to Ministry of Labour investigators, workers are told to report to work – in the conditions we illustrated above.

The workers want Canadians to know how they are being treated. Migrant farmworkers come to Canada on closed (tied) work permits, and work to support their families back home. They cannot change their employer except by applying for the open work permit for vulnerable workers, which creates additional institutional and bureaucratic barriers. Employers can take advantage of workers’ precarity and know that workers have little power to change their circumstances.

Workers have stated that this is slavery. They know that if they speak up about their treatment, they can easily be terminated and can be blacklisted from Canada’s agricultural worker programs, so they can never return to Canada for work. Some have reported that workers who have engaged in work stoppages to protest their treatment do not know whether they will be called back for the next season, now that they have been sent home.

Collectively, the workers demand the following:

  • That the government shuts down farms where there are COVID outbreaks;
  • That workers are quarantined and paid during this time, whether or not they test positive for COVID;
  • The provision of paid sick days;
  • That social distancing and disinfection protocols are implemented at workplaces and in bunkhouses to reduce the risk of transmission;
  • That employers are honest and open about COVID-19 outbreaks and workers’ COVID statuses;
  • That consular officials advocate for worker safety and protection;
  • That there are proactive inspections and changes to workplace laws that protect workers;
  • That migrant workers in the Temporary Foreign Worker Program are provided with open work permits and permanent status on arrival.

Migrant farmworkers want fair treatment and respect, which they deserve as human beings. This letter is to alert you, once again, to their concerns, which are anonymized to protect their safety. We urge you to take immediate action in protecting them, and to hold their employers accountable so that the responsibility for curbing the spread of the pandemic does not fall on workers, who have been made vulnerable by the system that brought them to Canada.

Sincerely,

Justicia/Justice for Migrant Workers

RE: OPEN LETTER FROM MIGRANT WORKERS IMPACTED BY COVID OUTBREAKS

We are workers from farms where there are current covid outbreaks. We want to express what we felt during this time of pandemic.

What we only want is fair treatment from our employer, manager and all the persons in charge.

As of now, we are waiting for word from them to inform us about what is happening to our farm. We learned that some of our co-workers are positive for the Coronavirus. That information came from those people who tested positive. While the office is still denying that fact. What they want from us workers is to continue working as long as we don’t have symptoms. They are only thinking of the company’s income and forget about the workers safety and welfare.

Same as PR and Canadian citizens, we are humans too that are prone to the virus. We are expecting them to come and disinfect the place where the positive  workers stay while they are working here, but no action at all.

They told us to work if no symptoms and if we want to make sure, we can do swab testing but no pay at all if it turns out negative.

We are addressing these concerns to the people who are willing to help and hope the government would consider us Migrant Workers too, that what we want is respect from you people. Just for humanitarian consideration, we came here to work for our family back home and to earn a living.

Not considering the abuse they are doing during work. Hope the government comes and asks us  workers about our situation. We want to cry out for help but there is this fear that if we talk, our employer will kick us out from the company, considering that we have closed permits. Without status is a big problem for us MIGRANT WORKERS.

We are the people who are greatly affected from this pandemic. And hoping this will reach the government.

Thank you.

ACTION: Send a letter to Ministers – Trinidadian workers need government support benefits now!

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As reported by the Toronto Star today, right now, hundreds of migrant farm workers from Trinidad and Tobago are stranded in Canada.

Their contracts have now come to an end as their services are no longer needed in winter. These workers are unable to go back home to their families because of travel restrictions by their sending country. They are stuck here in the Canadian cold with no form of income support and no assistance of any kind from the Trudeau government. These workers are being forced to spend precious holiday time far away from their families, with no income, no shelter, no winter clothing.

Please join us in calling on Ministers to take action NOW.

The following email template makes it easy — just enter your contact info and click “send”!

 

Over 100 migrant farm workers from Trinidad & Tobago are stuck in Canada. When will the federal government step up?

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As reported by the CBC, more than 100 migrant agricultural workers from Trinidad and Tobago have been stuck in Canada and can’t get home because of COVID-19 concerns. They now have to endure the Canadian winter with no access to any kind of income support. Justicia for Migrant Workers sent the following letter to hold decision-makers accountable. We invite you to do the same — feel free to adapt our letter and use the email addresses below.

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Open Letter re: Stranded Migrant Workers from Trinidad and Tobago

TO:     The Honourable Ahmed Hussen, Minister of Families, Children and Social Development (Ahmed.Hussen@parl.gc.ca)

The Honourable Marco Mendicino, Minister of Immigration, Refugees & Citizenship (Marco.Mendicino@parl.gc.ca)

The Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion (Carla.Qualtrough@parl.gc.ca)

December 7, 2020

Dear Honourable Ministers Hussen, Mendicino, and Qualtrough,

In March 2020, when the pandemic hit the world, your government deemed foreign seasonal farm workers to be essential and took exceptional steps in getting the workers into Canada from the Caribbean and Mexico. You then made them work under hazardous conditions with minimal support, all to ensure that Canadian farmers could make profits and so Canada gets local food on the table. Now, when they are no longer needed by the farmers because of the weather, you have abandoned these racialized migrant farm workers.

Hundreds of workers from Trinidad and Tobago have toiled through the harvest this year through the Seasonal Agricultural Work Program (SAWP). Their contracts have now come to an end as their services are no longer needed in winter. These workers are unable to go back home to their families because of COVID concerns. They are stuck here in the Canadian cold with no form of income support and no assistance of any kind from your government. They have to pay for rent, for food, for clothing and all basic necessities with no income.

Their situation is particularly unconscionable because these workers are eligible for Employment Insurance as per the regulations, which they have paid into during their service for your country, and yet Service Canada refused to use their discretion in granting them the benefits (Phone call meeting between J4MW and Service Canada December 4, 2020).

Service Canada went so far to advise that the workers should pay the fees for their work permits, even though, as per IRCC directives for seasonal farm workers and the interstate bilateral agreements, it is the employer that pays for the work permit. At the same time, migrant workers who do hold a valid work permit and have already submitted their applications for EI have received negative decisions from Service Canada, stating that because they hold a closed work permit, “they are not ready and available for work”.

In De Jesus v. Canada (AG) 2013 FCA 264, a case that dealt with parental EI benefits, the Federal Court of Appeal stated:

[13] The unique disadvantages in the Canadian labour market of agricultural workers as a whole, and migrant workers in particular, are well known. These disadvantages commonly include: ineligibility for many social benefits, including most unemployment insurance benefits; exclusion from many statutory protections of workers (including representation by a union); low educational level, functional illiteracy, and lack of knowledge of English or French; social isolation, and lack of access to telephones, computers, and urban centres; long and arduous working schedules with little free time; and fear of employer reprisal and deportation

[14] Like other employees, SAWP workers have employment insurance contributions deducted from their pay cheques. Unlike most other employees, however, they are generally ineligible for benefits, including regular employment insurance benefits, because they leave Canada at the end of their seasonal employment, and cease to be available for work or present in Canada. [emphasis added]

The SAWP workers are currently present in Canada and are therefore eligible for regular benefits as per the reasoning of the Federal Court of Appeal.  Yet, Service Canada refuses to grant them EI benefits by foisting the blame on IRCC/ESDC.

Furthermore, the Principles of Benefit Entitlement clearly states that

[A] claimant who does not currently possess a work permit is not automatically considered unavailable for work. In some cases, the claimant may be able to obtain a work permit as soon as employment is secured, because of the type of work they perform, or because of the individual’s skills. Consequently, the lack of a work permit is not the only factor to be considered when determining availability. The Commission must take into account all factors normally considered when determining a claimant’s availability.

[Digest of Benefit Entitlement Principles Chapter 10 – Section 10.2.4]

In many cases, the Tribunal has found that if the worker has taken “prompt and reasonable steps” to search for work and obtain employment, especially under circumstances beyond their control, they are eligible for EI even if their work permit has expired (See e.g. O. O. v Canada Employment Insurance Commission, 2019 SST 868; Canada Employment Insurance Commission  v. L.B., AD-13-1140).

Service Canada’s fettering of their discretion, in the face of precedent and their own principle, is a grave injustice and a perversion of the rule of law. These Trinidadian workers have gone above and beyond in taking “prompt and reasonable steps” to obtain status in Canada, even under the most extenuating circumstances beyond their control, and in fact beyond the control of the entire world as the battle against the pandemic continues. They are stuck in Canada because they are being prevented from traveling due to the pandemic.

In their desperate situation, they have pressured their government to send directives to their employers to process their LMIAs (which allows them to get a work permit) and to ask ESDC and IRCC to process them at the earliest (Notice from the Government of Trinidad and Tobago to employers, December 1, 2020). They have tried to find employers who can process their LMIAs. They have sought support for accessing benefits. As such, they have done everything humanly possible in this unforeseeable situation to show they are searching for work and are available for work. They are being made to endure circumstances that simply should not be tolerated in Canada. It is unconscionable that Service Canada is not responding to the situation and providing them with prompt benefits.

The Tax Court of Canada, in a case concerning Guatemalan workers in the agri-food industry, has held that the employment contracts of foreign workers are valid and the workers are eligible for employment insurance even if they do not comply with the work permit (Godoy Enriquez v. M.N.R., 2019 TCC 114).  The Court found that “the prohibition on work by foreign nationals without a permit is intended primarily to protect job opportunities for Canadian citizens and to prevent collective bargaining from being obstructed by the hiring of foreign nationals.” [(para 85)]. The Court stated that as per Canada’s obligation under international instruments, such as the International Covenant on Economic, Social and Cultural Rights, Canada has an obligation to protect the rights of workers to social security, including employment insurance (paras 91-93). Thus, according to the Court’s reasoning, the interpretation of IRPA, taking into account its objectives and principles, mandates that workers cannot be denied their right to EI and other benefits.

The Court further affirms that migrant farm workers “are a beneficial and critical human resource for both the economy and the greater good of all Canadians” (para 95), “an enrichment, and even a fundamental necessity to the stability and development of Canada’s agri‑food industry” (112) and that it is “a matter of general interest for Canadian society” that their important contribution to the Canadian economy be recognized and it is “unacceptable” to exclude them and abandon seasonal workers (paras 95, 14 emphasis added). The Court asserted that “it is urgent and imperative that the government… respond to seasonal workers’ problems and concerns before they arrive, upon their arrival and throughout their time in Canada” (para 14 emphasis added).  It is therefore appalling that Service Canada has instead abandoned them in the midst of a pandemic and the onset of winter.

Honourable Minister Hussen, you personally have strongly come out against Anti-Black racism and systemic racism within Canada’s borders. You said: “… the sooner we acknowledge [systemic racism], the sooner we amplify the voices of those who feel that sting of discrimination of racism as part of their lived reality, the sooner we’ll be able to tackle it and to eradicate it [Toronto Star, June 3rd 2020].” Yet, the very Ministry you lead, practices and embeds systemic racism against Black and racialized migrant workers, by discriminating against them and denying them the benefits they are entitled to, that they have paid into, during their time doing essential farm labour in Canada. We urge you to acknowledge the discrimination they face.

Honourable Ministers, the workers cannot wait anymore, insecure and without income, as you play jurisdictional football with them. We demand that you make the decision to pay the workers who are currently in Canada Employment Insurance benefits before December 10th. Any further delay is an abuse of process, abuse of discretion, and denial of natural justice.

Honourable Ministers Qualtrough and Mendicino, you have made the workers wholly reliant on their employers by making the work permit conditional on LMIAs. You have not even exempted the work permit processing fees. These workers are being forced to spend precious holiday time in Canada far away from their families, in the Canadian winter, with no income, no shelter, no clothing.  Instead of showing gratitude and compassion you have made the situation into a travesty where in their time of need, the workers are put in a worse situation of oppression and disempowerment. How are you even justifying your action? We demand that the stranded workers be immediately given open work permits,  with no conditions of requiring LMIAs to work in Canada and with no repercussions or administrative hurdles that would affect their future return to Canada.  We demand that the permit fees be waived for these workers. We also demand that they be given permanent residence status.

This incident concerning the Trinidadian workers cannot be seen as an isolated, unfortunate event; it is the outcome of a system of discrimination and oppression that is perpetuated by Canada’s Temporary Foreign Worker programs in agriculture.  Migrant agricultural workers are crucial to the functioning of the agricultural industry functioning. Many of these workers have been returning to work at the same farm each year, for many years. It is estimated that SAWP workers pay an estimated $21.5 million annually in EI premiums and have paid billions of dollars into EI since 1966, which have supported Canadian workers for decades, even as your Ministries exclude them from ever availing of the benefit through the application of discriminatory and racist regulations. The people who grow our fruits and vegetables, the people who put food on our tables, should not face perpetual impoverishment because of an unpredictable climate, and even more so, during a pandemic. We cannot simply ignore their calls for justice. Do you find it easier to do so because they are “racialized foreign migrant workers” who the government has wilfully invisibilized?

The legacy of colonialism continues to drive thousands of migrants to Canada in search of work, who your government takes advantage of, thus perpetuating colonialism and racism. In fact, just last week, the Federal Government has increased the program by expanding the definition of Primary Agriculture. This expanded definition implies that you will be excluding greater numbers of racialized migrant farm workers from basic employment standards and benefits, even as they contribute billions of dollars to the economy and revenue. This racial apartheid cannot continue.

We therefore call on the government to:

  1. Reverse all decisions denying regular EI benefits to migrant farm workers, that were made on the basis that they were unavailable to work because of their work permit status. Award benefits to all workers who have applied immediately;
  2. Remove the conditions predicating access to regular EI benefits on their work permit and their physically being in Canada. Provide equal access to the regular employment insurance benefits for migrant workers, after they go back to their countries, through the development of interstate agreements between the governments of Canada and the countries from which migrant workers originate. This access can be modelled on similar agreements that already exist with the United States and inter-state agreements globally;
  3. Restore migrant workers’ access to special EI entitlements including parental, maternity and compassionate benefits;
  4. Provide migrant workers with access to training and education and all social and income benefits in Canada and when they are back in their home countries;
  5. Waive all fees for applications for work permits for farm work.
  6. Provide all workers arriving in Canada under SAWP or the Agricultural Streams with open work permits that are not dependent on LMIAs.
  7. Provide them with permanent residence status on arrival.

Justicia for Migrant Workers (J4MW)