CIMM Committee Report

THE LIVE-IN CAREGIVER PROGRAM

Section 112 of the Immigration and Refugee Protection Regulations explains the requirements for obtaining a work permit as a live-in caregiver:

112. A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they:

1. applied for a work permit as a live-in caregiver before entering Canada;
2. have successfully completed a course of study that is equivalent to the successful completion of secondary school in Canada;
3. have the following training or experience, in a field or occupation related to the employment for which the work permit is sought, namely;
1. successful completion of six months of full-time training in a classroom setting;
2. completion of one year of full-time paid employment, including at least six months of continuous employment with one employer, in such a field or occupation within the three years immediately before the day on which they submit an application for a work permit;
4. have the ability to speak, read and listen to English or French at a level sufficient to communicate effectively in an unsupervised setting; and
5. have an employment contract with their future employer.

People who enter Canada under the Live-in Caregiver Program are eligible to apply for permanent resident status if they have completed two years (24 months) of authorized full-time employment as a live-in caregiver within three years from the date of entry into Canada under the program. Additional eligibility criteria such as a valid work permit and valid passport and admissibility criteria for permanent residency must also be met.^[1]  The Immigration Levels Plan tabled in the House of Commons includes a target for 8,000 to 10,000 live-in caregivers to be granted permanent resident status in 2009.

ROLES OF THE FEDERAL GOVERNMENT IN THE LIVE-IN CAREGIVER PROGRAM

As is the case with other temporary foreign worker programs, the LCP is jointly administered by Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development Canada (HRSDC). 

The role of HRSDC is to ensure that there are no Canadians or other temporary workers already in Canada who are willing, qualified, and available to take a job being offered to a foreign worker.  An employer who wants to hire a foreign live-in caregiver must first submit an application for a foreign live-in caregiver to HRSDC.  In addition, to hire a live-in caregiver, an employer must: “have sufficient income to pay a live-in caregiver; provide acceptable accommodation in [his or her] home; and make a job offer that has primary care-giving duties for a child or an elderly or disabled person.  (A job offer for a housecleaner, for example, is not acceptable under the Program.)”^[2]  If the employer’s application is approved, HRSDC will notify CIC of the approval and the caregiver may then apply for a work permit.  The work permit is a document that allows a person to legally work in Canada.

CIC is responsible for determining whether a foreign caregiver is eligible to come to Canada under the LCP.  Citizenship and Immigration Canada will approve an application and issue a work permit to the caregiver if the applicant meets the program criteria and satisfies all other immigration requirements.

THE ROLE OF PROVINCES IN THE LIVE-IN CAREGIVER PROGRAM

Under section 92(13) of the Constitution Act, 1867, provincial governments have jurisdiction to regulate employment standards, including wages and working conditions, as well as housing.  Regulating includes setting standards and enforcing those standards.  Temporary foreign workers, including live-in caregivers, have the same rights as other Canadian workers.  Temporary foreign workers are also subject to provincial eligibility criteria for health insurance and workers compensation coverage.

RECOMMENDATIONS FROM THE STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION - REPORT no. 7

In its report Temporary Foreign Workers and Non-Status Workers^[3], the Standing Committee on Citizenship and Immigration made a number of recommendations to improve the temporary foreign worker program.  The recommendations most relevant to this report are included as Appendix 1.  Two recommendations related specifically to live-in caregivers; one would allow for the possible extension of the three year period in which employment conditions have to be met in order to be eligible for permanent resident status (no. 4), and the other would exempt live-in caregivers from the second medical exam required in order to obtain permanent resident status (the “Juana Tejada” law, recommendation no. 5).  The Committee’s recommendations also addressed administrative improvements to the program, including work permits that are province and sector specific, rather than employer specific (no. 20).  Other administrative measures intended to ease periods of unemployment by making the names of employers with positive labour market opinions available (no. 16) and creating a fund for emergency situations of unemployment (no. 21). 

The report includes a series of recommendations related to worker protection, including mandatory orientation abroad (no. 22) and a meeting with a settlement organization in Canada three months after arriving (no. 23).  Protection would also be enhanced by the proposed recommendations of providing information on laws applicable to recruiters (no. 24), greater enforcement of existing laws (no. 26), and the establishment of monitoring teams at the federal level (no. 28).  Finally, of relevance to this study, the Committee recommended in its previous work that temporary foreign workers not be required to live with or on the premises of their employer (no. 34) and that accompanying family members be eligible for an open work permit (no. 8).

REACTIONS OF INTERESTED PARTIES TO THE 7TH REPORT OF THE STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

At its hearings, the Committee heard reactions to its report, Temporary Foreign Workers and Non-Status Workers. Committee members are pleased to note that many of its recommendations to improve the temporary foreign worker program are supported by those who appeared before it. While not all witnesses commented directly on the recommendations, they did make suggestions that are consistent with many of them.

In particular, some witnesses stressed the need to eliminate the requirement that temporary foreign workers live with or on the premises of the employer, thus validating the Committee's recommendation on that subject.^[4]  The residence requirement is considered one of the major causes of the vulnerability of caregivers with respect to their employers.

Similarly, the recommendation that work permits issued to temporary foreign workers henceforth be sector-and province-specific rather than employer-specific was well received. Some witnesses urged that caregivers be issued an open work permit^[5] to avoid problems with wait times for the issuance of a new work permit and to make it easier for caregivers to leave a job in which their rights are not respected.^[6]

With respect to the transition from temporary resident to permanent resident status, some witnesses expressed satisfaction with the recommendation to eliminate the second medical examination required of applicants for permanent residency.^[7]  In addition, a few witnesses pointed to the importance of ensuring that the three-year period during which a caregiver must accumulate 24 months of work can be adjusted to reflect events beyond their control.^[8]  In this connection, they supported the Committee’s recommendation that the period be extended by one year when there are good reasons the caregiver cannot meet the job requirements. Some witnesses, however, while they supported the recommendation, suggested going further and granting permanent resident status to caregivers upon arrival in Canada.^[9]  This concern will be addressed in the next section.

Most witnesses stressed the importance of providing information to caregivers.^[10]  Thus, the Committee’s recommendations that all caregivers be required to attend an orientation session before leaving for Canada, and three months after their arrival, were well received. On the other hand, some pointed out that despite all efforts to inform caregivers of their rights, they are not always in a position to assert their rights and make use of the information.^[11]  Lastly, some witnesses suggested that the government promote family reunification by making it easier for members of the immediate family to come to Canada. In this connection, the Committee was moving in the right direction in recommending that family members of foreign workers be able to obtain an open work permit in Canada and in recommending that an advisory committee address the issue of family separation related to the temporary foreign worker program.

Despite their satisfaction with many of the Committee's recommendations, those consulted did identify a few factors that remain to be addressed, and pointed to new avenues that remain unexplored. The Committee wishes to respond to these concerns with a further series of recommendations specifically with regard to the live-in caregiver program.

RECOMMENDATIONS

During the consultations, most witnesses mentioned problems with the temporary resident status of live-in caregivers.^[12] They felt that this status places caregivers in a vulnerable position with respect to their employers. Since caregivers have to accumulate 24 months of work during their first three years in Canada, some of them are said to be prepared to put up with abuse and exploitation by some employers in order not to spoil their chances of obtaining permanent resident status. Witnesses appearing before the Committee suggested a few solutions to this problem.

Some witnesses recommended that caregivers be granted permanent resident status upon arrival in Canada.^[13]  They felt that this option would make it easier for caregivers to leave situations in which they were abused by their employer. Taking into consideration concerns about a caregiver who, after arriving in Canada and becoming a permanent resident, might refuse to work as a caregiver, one witness suggested that caregivers be granted permanent resident status on certain conditions.^[14]  Upon fulfillment of the conditions, and with the necessary documentation, a caregiver could become a full permanent resident. However, no suggestions were made as to what conditions caregivers should have to meet.

Previously, the Committee recommended that live-in caregivers arrive as temporary foreign workers but be given an additional year to meet the requirements for permanent resident status. Now, we wish to go further and recommend that live-in caregivers be granted permanent resident status with conditions upon arrival.  Having permanent resident status upon arrival in Canada would enable caregivers to enjoy the same rights as other permanent residents: mobility, the right to go to school, to live where they wish, to bring their family members or to change employers.  Further, it would be easier than under the present system for caregivers to escape from abusive situations.  

Recommendation 1

The Committee recommends that the Government of Canada grant live-in caregivers permanent resident status on certain conditions. In order to retain permanent resident status, a caregiver must accumulate 24 months of work as a live-in caregiver during the first three years in Canada. Once the conditions have been met, caregivers have to provide evidence to Citizenship and Immigration Canada in order to have the conditions lifted.

The Committee recognizes that implementing the change to permanent resident status will require some time.  In the interim, changes could be made that would allow the transition from temporary to permanent resident status to function more smoothly.  The following two recommendations address this interim period.

At its hearings, the Committee learned of a concern about provincial health insurance and coverage for caregivers while in implied status. After applying for permanent resident status, while waiting for it to be granted, some caregivers lose their entitlement to provincial health insurance for up to six or eight months.^[15] While this is a matter under provincial jurisdiction, witnesses suggested that the federal government could have a role to play through the Interim Federal Health Program.^[16]

Recommendation 2

The Committee recommends that the Government of Canada extend coverage under the Interim Federal Health Program to caregivers denied coverage under a provincial health plan.

Currently, live-in caregivers, like most foreign students, must obtain a study permit in order to take a course or program lasting more than six months.^[17]  Although the opportunity to study while in Canada is available to them, CIC’s website states: “it is important to remember that you are in Canada to work as a live-in caregiver.”^[18] During its consultations, the Committee heard suggestions that caregivers be allowed to take academic courses or programs if their schedules allowed.^[19] The Committee believes that it is in the interests of the Government of Canada to allow caregivers to go to school to develop their knowledge and skills and facilitate their integration, especially given that they have an opportunity to apply for permanent resident status and may eventually become Canadian citizens.

Recommendation 3

The Committee recommends that the Government of Canada waive the requirement to obtain a study permit for live-in caregivers.

Witnesses reported that pay practices vary from employer to employer. Some use cheques, while others pay their employees in cash. This situation can arise from the desire of either party to use a particular method of payment, or the fact that some caregivers do not have bank accounts.

Moreover, some employers do not provide their caregivers with a statement of earnings and deductions. In order to become a permanent resident, however, a caregiver must be able, among other things, to present a statement of earnings and deductions sent by the employer to the Canada Revenue Agency.^[20] Moreover, the CIC website states that the employer is required to provide a statement of earnings with each paycheque.^[21]

In its report Temporary Foreign Workers and Non-Status Workers, the Committee recommended that temporary foreign workers be required to attend an orientation session before departure, and another three months after their arrival in Canada. The Committee sees this as a good opportunity to inform caregivers about statements of earnings and pay cheques and unacceptable behaviours under the program.

Recommendation 4

The Committee recommends that the Government of Canada ensure that orientation sessions for caregivers address the following subjects:

• The requirement that the employer provide a statement of earnings with each pay cheque;
• The need for the caregiver to have access to complete statements of earnings and deductions in order to meet the conditions for becoming a permanent resident; and
• The procedure for opening a bank account.

Furthermore, in these orientation sessions, it should be made clear that the following behaviors are unacceptable, and in many cases subject to sanction. It should also be explained to which bodies each of these inappropriate behaviours should be reported:

• Confiscating passports;
• Failing to comply with the Canada Revenue Agency rules regarding pay and record of employment;
• Failing to make required deductions;
• Employing a caregiver without a work permit to work in their homes;
• Paying less than the minimum required by provincial legislation;
• Requiring caregivers to work longer than reasonable work hours; and
• Assigning caregivers tasks entirely unrelated to their prescribed role.

Copies of the materials used for this orientation session should be provided to all provincial governments to make them aware of the types of behaviors that might be reported to them, and so that they can note that they should act on these reports.

Most witnesses referred to the importance of providing information to live-in caregivers about their rights.^[22] However, some suggested that briefings also be provided to employers.^[23] The Committee believes that such orientation sessions could be very useful, since abuse is not always intentional and sometimes results from a lack of information. While abusive situations do exist, some could probably be avoided if employers knew more about their responsibilities, the rights of their employees and the terms of the program. Requiring employers to attend information sessions could help eliminate abusive situations. Moreover, familiarity with the legal consequences of failure to comply with the terms of the program and provincial labour standards could have a deterrent effect on employers who are tempted to exploit or abuse their employees.

Recommendation 5

The Committee recommends that the Government of Canada require employers to attend a briefing on the live-in caregiver program and the rights and responsibilities of all concerned, before a caregiver can start work.

Furthermore, in this briefing, it should be made clear that the following behaviors are unacceptable and in many cases subject to sanction:

• Confiscating passports;
• Failing to comply with the Canada Revenue Agency rules regarding pay and record of employment;
• Failing to make required deductions;
• Employing a caregiver without a work permit to work in their homes;
• Paying less than the minimum required by provincial legislation;
• Requiring caregivers to work longer than reasonable work hours; and
• Assigning caregivers tasks entirely unrelated to their prescribed role.

LIVE-IN CAREGIVERS IN THE DHALLA RESIDENCE

In addition to hearing witnesses on the live-in caregiver program in general, the Committee also heard testimony about one situation in particular: live-in caregivers in the residence of Neil, Ruby, and Tavinder Dhalla.  Two caregivers, Ms. Magdalene Gordo and Ms. Richelyn Tongson, told the Committee about their experience as employees for the Dhalla family^[24].  They explained their concerns, including long hours and what they perceived to be inappropriate chores such as cleaning other peoples’ homes and snow shovelling.  Ms. Gordo indicated that she quit her job with the Dhalla family because she was unhappy and because the Dhallas had not yet obtained the required labour market opinion (LMO) to authorize her employment.  Both women expressed concern about requests for passports or holding passports purportedly for the purpose of the LMO and work permit application processes.  A later witness indicated she had intervened to help Ms. Tongson secure the return of her personal documents.^[25]

In her appearance before the Committee, Member of Parliament Ruby Dhalla, gave a different perspective.  She denied any involvement with the employment or immigration status of the caregivers and claimed that the allegations made against her were false.^[26]  She addressed some of the specific claims made by the caregivers concerning pay, tasks, and passports and asserted that people entering the family home were treated well and with respect.

The Committee regrets that such situations may occur under the live-in caregiver program. 

Recommendation 6

The Committee recommends that the Government of Canada implement as soon as possible the changes set out in the Committee’s 7^th Report as well as those of this report in order to ensure that all participants have the necessary knowledge and opportunity to participate in the live-in caregiver program to their advantage and to ensure that the rights of temporary foreign workers are upheld.

Recommendation 7

The Committee recommends that the authorized bodies in the provincial and federal governments investigate the allegations of the former live-in caregivers in the Dhalla residence and take measures as appropriate. Further, the Committee requests that these government bodies, upon completion of their investigations, send the result to the Committee.