Wednesday, August 25, 2010

Disposable domestics for how long?

To many Filipino caregivers, Canada is heaven on earth compared with other countries of destination for overseas workers. Canada offers them a pathway to permanent resident status, and eventually, to citizenship rights. A future that is not available anywhere else. So who can ask for anything more?

This is why many among their ranks want the government of Canada to continue the Live-in Caregiver Program despite reported abuses and exploitation of domestic workers by their employers. They see any changes by the government, even if only small, as big improvements. Such as the so-called Juana Tejada Law which was a mere tweaking of the regulations by Canada’s immigration bureaucrats to remove the requirement for a second medical examination for caregivers once they qualify for permanent residence.

Juana Tejada qualified for permanent residence after completing her work contract as a live-in caregiver, were it not for her stage 4-colon cancer that was diagnosed while her papers were being processed. She was eventually accepted as a permanent resident on humanitarian grounds, an easy decision for the government to make since she was already on her deathbed. An effective PR opportunity for the government because this made it look more compassionate and the party in power more acceptable to the eyes of the public, especially Filipino-Canadians.

But Juana Tejada’s case was a statistical anomaly, and only a miniscule number would be caught in a similar situation. Even without the so-called Juana Tejada Law, every caregiver in similar situations would already be covered by existing provisions in the law allowing the government to consider the humanitarian and compassionate aspects of each case. After Juana Tejada’s death, two more cases surfaced and ailing caregivers were granted permanent residence on humanitarian grounds.

This has not deterred caregivers and their advocates in advocating for more protection for domestic workers, such as protection from abusive employers and from fraudulent practices of employment agencies, which prompted another tweaking of the regulations to accommodate these demands. Last August 18, 2010, the Canadian government announced improvements to its Temporary Foreign Worker Program, including live-in caregivers.

According to Canadian Immigration Minister Jason Kenny, the government “is taking action to protect temporary foreign workers, including live-in caregivers, from potential abuse and exploitation. We owe it to them, their employers and all Canadians to ensure that the program is fair and equitable. After all, they are an essential element of Canada’s economic success.”

Among the changes the federal government introduced were mandatory clauses in the employment contract that will benefit live-in caregivers. Whether these can be enforced remains to be seen since immigration is a federal matter while employment or contractual obligations between employers and caregivers fall under provincial jurisdiction. In the past and even until now, passing of responsibilities between these two levels of government has marked the uneasy relationship between federal bureaucrats and their provincial counterparts on matters of concurrent jurisdiction such as immigration and employment.

However, provincial governments have become more involved in regulating the hiring of foreign workers, particularly in the enforcement of employment standards and regulations. Right now, Ontario and four western provinces have legislations restricting the rights of recruiters to charge fees to workers, including caregivers.

Under Ontario’s Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), employers and recruiters of live-in caregivers are prohibited from engaging in acts of reprisal against complaints filed against them that violate the workers’ rights under the Act or the province’s Employment Standards Act. So far, there have been no complaints nor acts of reprisals reported under this new provincial legislation. It is rather doubtful or improbable that caregivers will report or call in their complaints against their employers, even if reprisal is prohibited, for fear of losing their jobs. Caregivers, in most cases, would bear their situation until their contract is completed and they have submitted their application for permanent residence for processing.

No doubt, these federal immigration regulations and provincial employment laws were all designed with good intentions. Can they be implemented to the letter of the law, i.e., for the real benefit of caregivers, given the requirement that caregivers reside in the private households of their employers for the duration of their work contract? This is a litmus test that both levels of government need to muster.

Caregivers under the current system are totally isolated from the outside world and fully under the control and supervision of their employers. Who would monitor abuses such as ordering caregivers to attend to their small wards when the little ones cry in the middle of the night? Or to iron clothes at bedtime, even when their work contract only asks them to take care of the children? Or wake up from sleep when they hear their aged or sickly employers call for help? Certainly, there are many good employers, but how about the few bad ones?

When Juana Tejada was still alive, she recounted how she looked after her employer’s new-born twins and older child. She took care of them as if they were her own, feeding and bathing them, and staying with them 24/7. She wasn’t paid for overtime work and didn’t have her own room. Most live-in caregivers work under similar conditions and choose to remain silent and bear the hardship and exploitative nature of their workplace so they can remit money to their families back home, in anticipation of becoming eligible for permanent residence and eventually becoming Canadian citizens.

No wonder a United Nations’ study described these caregiver jobs as the three Ds: dirty, difficult and demeaning. This led one Filipino worker to state that the “exploitation of domestic workers has been legalized and institutionalized.”

An advocate for reforms for live-in caregivers in Toronto has recently suggested that granting outright permanent residence to these workers might prevent abuse. But this is a very narrow prescription based on the simple understanding that the problem of caregiver abuse is merely an immigration matter. He has even misconstrued the new regulations announced by the federal government that provide for a cumulative four-year limit for temporary foreign workers as also applicable to live-in caregivers. Raising fears that caregivers may no longer qualify for permanent residence due to this four-year limit, he has strongly criticized the new regulations and has pushed for giving automatic permanent residence to live-in caregivers upon arrival in Canada. A precipitate act that now appears to alienate him from other advocates for caregiver reforms who have cautioned against a backlash for demanding too much from government.

Automatic permanent residence is laudable, which should be extended to all workers arriving in Canada, if only it would eliminate rank abuse and exploitation in the workplace. But such proposal may not sit well with Parliament, especially with the current party in power, given its record of opposing the opening of the country to more immigrants.

In any case, permanent residence will not wipe out abuse in the workplace since the Immigration Act still requires caregivers under Section 113(1)(i) to reside in the private households of their employers to qualify for permanent residence. How about removing this onerous provision and treating and valuing domestic work like any other job, with proper laws and regulations? There is nothing unacceptable or wrong in allowing caregivers to work in their employers’ homes for a minimum number of hours, provided they are paid for overtime work hours if they exceed that minimum, or to allow them to live outside by themselves or share accommodations with other co-workers.

When Immigration Minister Kenny said that caregivers are an essential element of Canada’s economic success, he is only stating the obvious: that the marginalization of caregivers in a way subsidizes the productivity and affluence of our economy.

The isolation of a caregiver’s job makes the worker more at risk for abuse or mistreatment. Without contact with anyone outside of the household, a caregiver becomes disposable labour. Yet, there is the misconception that domestic workers are happy members of their employer’s families. According to Grace Chang, professor of women’s studies at University of California-Santa Barbara and author of Disposable Domestics, it’s a fantasy to treat domestic workers like family members. It rationalizes the practice not to pay adequate wages for domestic work “believing that people are doing this work purely out of love.”

Domestic work has historical roots in slavery. It is commonly associated with women's unpaid household labour. Largely immigrants and women-of-colour constitute this workforce, and their exclusion from legal protections reinforces the notion that domestic work is less valuable than work outside the home.

Blame is usually assigned to individual employers for abuse and exploitation of domestic workers but it is the government’s responsibility to ensure that workers have safe workplaces and that they are adequately paid. The exploitation of caregivers and all temporary foreign workers hurts us all. Because workers in these programs are at the mercy of their employers for their livelihood, legal status and protection, and expectations of permanent residence in this country, these programs create a disenfranchised underclass of workers.

Common sense dictates that exploitation of domestic and other temporary foreign workers will continue as long as it makes economic sense for employers to do so. But the major responsibility lies squarely upon the government to change the status quo in a way that guarantees these workers full labour rights and protections, gives each of them the opportunity of permanent residence if not equal rights at the onset, and not to treat them as disposable labour.

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