Foreign Workers’ Supply Chain: Keep it Clean From ‘Labour Human Trafficking’
It seems that RTL Service of Barrie in Ontario (RTL Service) found that the line between criminal charges and not having a workplace legal infrastructure is very thin.
Earlier this year, CBC reported that the Ontario Provincial Police (OPP) freed 43 Mexicans workers brought to Canada by alleged ‘human traffickers’ under the promise of work visas and permanent residency status. These workers were freed after an investigation of about 250 officers that included Barrie’s Police and the Canada Border Services Agency (CBSA).
As a result of this investigation “four Barrie residents [yes, RTL Service’s owner(s)/staff - ages 54, 51, 24 and 19] have now been charged with several offences as part of ongoing labour human trafficking investigation.”
RTL Service is a company alleged to have supplied foreign nationals as forced labour to unaware Ontarian businesses who needed these workers. A match made in heaven … or in hell, if you were one of the foreign workers, allegedly trafficked for labour, who reportedly said to an investigator: "Last night, I went to bed a slave. This morning, I woke up a free man."
The four Barrie residents are facing more than 100 charges contrary to the Immigration and Refugee Protection Act (IRPA) and the Criminal Code (Code), including trafficking in persons. According to the Code, trafficking in persons is committed by: “Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation […]”
Failed Workplace Legal Compliance
Whether the four Barrie residents would go to jail or not is a matter for the courts to decide. But I’m certain that the residents’ attempt to stay out of jail would include going through their workplace legal infrastructure (or lack thereof). For foreign workers recruiters like RTL Service, and their business clients, staying away from jail may not be a matter of immigration alone, but an endeavour that includes compliance with workplace laws.
News media outlets reported that the police found that the victims lived in poor conditions, wages were mostly withheld, and workers had to pay a fee for accommodation and transportation. These findings suggest that there were at least three related businesses in the supply chain of these 43 foreign workers: (i) recruitment; (ii) housing; and (iii) transportation.
Here is the problem. RTL Service seemed to have received payment from their clients to pay out foreign workers’ wages, and instead of paying foreign workers’ wages in full, RTL Service seemed to have collected payment and fees for the related businesses (accommodation and transportation), after which they payed whatever was left to foreign workers, as wages.
The supply chain of foreign workers is complex, and usually includes different related businesses or operations inside and outside Canada. Each of these operations are controlled by Canadian laws, for example, Ontario’s Employment Protection for Foreign Nationals Act, 2009 (EPFNA).
To answer who the employer is under different laws may be challenging. A recruiter and its client may be treated as one employer for the purpose of EPFNA, while a temporary help agency is an employer for the purposes of Ontario’s Employment Standards Act, 2000 (ESA), together with its business client who is jointly liable and ultimately responsible for complying with the ESA.
And, even though a business represents itself as a temporary help agency (and liable under the ESA), the business may be liable as well under EPFNA. This would happen when operations fall within the four corners of what a recruiter is for this Act, namely, a person who finds an individual for employment or a person who finds employment for an individual.
Consequently, the laundry list of things that these operations must do or not to do to comply with which law, will shift based on its true operations: is it a recruiter? Is it a temporary help agency? Or is it a client?
I speculate that RTL Service would not be in this position if it had sought (and followed) workplace related legal advice and services. Now, it seems too late, and everything they gained from RTL Service’s operations would have to be invested in defending themselves to stay out of jail.
Complete Rigorous Checks
Canadian clients doing business with similar recruiters as RTL Service, would begin to complete rigorous checks before retaining these services. The Georgian Bay Hotel, one of the Ontarian business who inadvertently dealt with RTL Service, said that it has severed all ties with the recruiter and that it is reviewing its “standards around contractual agreements … with particular emphasis on fair treatment of workers.” A similar position was taken by the Blue Mountain Resort who also dealt with RTL Service.
There are many great businesses out there, but stay vigilant and engage with foreign workers’ recruiters (and temporary help agencies) that: (1) satisfy your questions about immigration and employment compliance; and (2) have a healthy and wealthy workplace legal infrastructure in place.
Antonio F. Urdaneta is a marathon runner, a workplace lawyer, investigator, compliance coach, and thought leader at Workplace Legal. He uses coaching skills and tools to inform, advice and represent workplaces in digital and physical legal challenges and endeavours. He writes his own posts.
This article was originally posted at BEST Magazine: http://online.flipbuilder.com/rfif/phzf/ where you will find this and other great articles!