How a one-size-fits-all approach is making Filipinos uncompetitive in Canada

The Philippines is one of Canada's chief sources of permanent residents, citizens, and temporary foreign workers. The latest census data from 2016 showed that the Philippines was the top source of new permanent residents in Canada.

Provinces in Western Canada have signed 5 memoranda of understanding (MOUs) in the last decade, with two signed by Manitoba and one signed each by British Columbia, Alberta, and Saskatchewan. The purpose of the MOUs is to ease labor shortages and strengthen labor and employment links in the provinces by providing jobs to Filipino workers. It should be noted that the MOUs are not legally binding but serve as general guidelines for labor mobility.

The MOUs set out recruitment processes, protection mechanisms for workers, and bridge discrepancies in employment standards between Canada and the Philippines.

The aspired-to goal of having a smoother recruitment and enforcement process is made harder due to recent changes in exit requirements for Filipinos working abroad.

In the past, Canadian companies hiring foreign nationals from the Philippines do so directly. But in 2018, the Philippine Overseas Employment Administration (POEA) banned granting overseas employment certificates (OECs) to any worker directly recruited by an employer. Exemptions may be requested for skilled workers through an application at the corresponding Philippine Overseas Labor Office (POLO). The ban on direct hiring that started in 2018 rendered the MOUs almost worthless.

The POEA has effectively prolonged the employment process. While the overall policy goals of securing overseas Filipino workers (OFWs) are admirable, the Philippines should not apply a one-size-fits-all policy with respect to the countries of deployment.

Canada is a country that respects the rule of law. Mind you, it is not perfect – there are abuses in Canada. However, mechanisms exist for its workers, including temporary foreign workers. Rights are protected and preserved through employment standards that are set by each province.

Referencing provincial legislation, employment standards

In Canada, employment standards are largely the jurisdiction of provinces. The MOUs reference compliance with provincial employment standards. The "Offers of Employment and Contracts" clauses in each of the MOUs state that employment contracts must comply with provincial minimum employment standards; indeed, this is noted by the Philippines' Department of Labor and Employment. 

The minimum standards do not make a distinction between Canadians, permanent residents, and temporary foreign workers. This means foreign workers enjoy the same protections against employer abuse. Abused workers may seek relief under the provinces' robust employment standards legislation, typically through the courts or through the various provincial ministries of labor.

Further reinforcing protections are foreign workers' rights to be a part of a union. This is a right guaranteed by the Canadian Charter of Rights and Freedoms. Yes, foreign workers can join Canadian unions.

The "Protection of Workers" clause in the MOUs state that the POLO "will monitor workers recruited under the MOU with the view of ensuring their protection and welfare."

In Toronto, for example, the POLO staff work closely with civic organizations such as immigration settlement agencies and social workers who volunteer their time to help advance cases of worker abuse and find justice and reparation.

What should be done is to facilitate Filipino workers' access to the Canadian justice system, and the POLO can be a bridge. Indeed, the MOUs contemplate this as noted in the previous paragraphs. 

Reactionary policies, red tape: The OFW's burden

The direct hire ban is a reaction to the diplomatic crisis of early 2018 between the Philippines and Kuwait. At the time, Joanna Demafelis was found dead inside a freezer in her employers' abandoned apartment in Kuwait.

The work done by the POLO in various jurisdictions is admirable and undoubtedly a thankless job. The goals are laudable – the POEA now rightly insists that workers be properly compensated. They also put a harder onus on employers and recruiters. However, this is a double-edged sword. We have assisted clients to comply with burdensome and sometimes redundant requirements set by the POLO.

In one case, a Filipino worker was hired directly by a Canadian company. An employment contract had already been executed and closed, vetted by employment lawyers in Canada. Legal requirements were met in Canada, and the visa was granted by the Canadian Embassy in Manila. 

Instead, the POLO insisted on a word-per-word addendum to the contract that mirrors the POEA's memorandum circular. The addendum clauses were redundant. Canadian provinces offer robust protection for its workers and remedies should abuses arise. These redundant clauses only muddied the employment contract. The resulting vagueness harms the worker.

In addition, we had to find information from the POLO, the POEA, and even the Overseas Workers Welfare Administration, regarding requirements. Unsurprisingly, they had different and contradictory checklists. In the end, the process left the Canadian employer rattled by Philippine red tape. 

The bottomline: this process creates a thick layer of uncertainty and makes high-skilled Filipinos uncompetitive for high-paying positions.

The OEC requirement should be removed and the Philippines should honor its word when it signed the MOUs with various Canadian provinces. The understanding between these provinces and DOLE is that foreign workers in Canada enjoy equal protection offered by Canadian employment standards. 

The POLO does incredible and important work. In Canada they should be retooled and capacity increased to encourage a more direct dialogue between Filipino temporary foreign workers and the Canadian justice system. There are remedies available through the courts, human rights tribunals, and various ministries of labor.

Should the Philippines insist on an unwise one-size-fits-all approach on direct hires, it stands to lose out to other foreign national candidates who are going to dash through the door once COVID-19 is contained. I have had the unpleasurable task of making excuses for the Philippine government to Canadian employers; high-skilled and high-salaried competitive positions will likely look to other foreign nationals, rather than Filipinos, to fill the labor shortages in Canada. – Rappler.com

Lou Janssen Dangzalan is a Canadian immigration lawyer practicing in Toronto, Canada. He focuses on economic and family class immigration, taking on cases for caregivers, students, skilled workers, and future permanent residents in Canada.

Lavaniya Rajah is a former journalist and is currently a law student at the University of Ottawa.