The fatal crash of a van carrying migrant farm workers in southern Ontario has raised questions about the kind of workplace protections Canada offers to such workers.

At this time, there is no evidence that Tuesday's accident was related to issues of workplace safety, but those familiar with the world of migrant workers say they are not adequately protected and that the problem lies less with a lack of rules than with a lack of enforcement and inadequate sanctions for employers who violate them.

"Compliance with regulations is either voluntary, or it depends on the employer to show compliance, or it's complaints-based," said Jenna Hennebry, associate director of the International Migration Research Centre at Wilfrid Laurier University in Waterloo, Ont., who has done extensive research on migrant workers in Canada.

"You end up having enforcement issues."

When employers are found to be violating labour regulations or health and safety guidelines, often their only punishment is that they are barred from bringing in foreign workers the subsequent year or for another stipulated period of time.

"Really, the consequence is: you can't get workers next year, but you can get them the year after that," Hennebry said.

The migrant workers who work on Canadian farms come into the country under one of two programs: the Seasonal Agricultural Workers Program (SAWP) or the Agricultural Stream of the Temporary Foreign Workers Program for Occupations Requiring Lower Levels of Formal Training.

Each of the programs has specific rules governing employers and workers. Foreign Agricultural Resource Management Services (F.A.R.M.S.), a non-profit representing the food growers industry that helps employers hire migrant workers, has compiled a comparison of the two programs.

Seasonal Agricultural Workers Program (SAWP)

The Seasonal Agricultural Workers Program (SAWP) was established in 1966 as a way of bringing Jamaican workers to Canada to help make up for a shortage of apple pickers.

The majority of migrant farm workers, about 26,000 a year, come to Canada through this program, with the greatest number coming from Mexico and heading to Ontario.

SAWP is open only to workers from Mexico, Jamaica, Barbados, Trinidad and Tobago and the nine countries of the Organization of Eastern Caribbean States.

The program is overseen by Human Resources and Social Development Canada (HRSDC). In Ontario, Quebec and the Maritime provinces, F.A.R.M.S., and its French-language counterpart, F.E.R.M.E., administer it for employers for a fee of $35 per worker, paid by the employer.

Under SAWP, workers can get work permits of up to eight months, and employers can request to have specific workers return to work for them in subsequent years, prior to approval by the home country.

One of the main differences between SAWP and the low-skill foreign worker program is the involvement of the countries supplying workers. The source countries are responsible for recruiting the workers and are signatories to the workers' employment contracts. Source country consulates within Canada are supposed to act as contact points and advocates for workers in terms of ensuring the conditions of their contracts are upheld.

Workers in the SAWP program have a standard employment contract that has been negotiated between the source countries, employers and the Canadian government — there is one general agreement for Mexico and another for Caribbean countries.

As with the low-skill foreign worker program, work permits are issued by Citizenship and Immigration Canada and are tied to one specific employer, which means workers are effectively barred from working for anyone else, even in off-periods when their main employer has no work for them.

Such lulls can happen in some agricultural sectors, such as poultry, where a certain type of work might be needed for a set period but not for the full, uninterrupted duration of a work visa. Currently, the government does not verify in advance that an employer has enough work for the full duration of a migrant's work permit.

"That's one of the problems we've had in the past with workers being laid off for a period of time," said Hennebry. "And when they're laid off, they're not legally allowed to work for somebody else, but they're legally allowed to stay in Canada for the duration of the work permit.

"They need money to support their family, and changing employers on your work permit is very difficult. Most end up working under the table and hoping that another employer with permission to hire foreign workers will hire them."

Workers take a risk by taking on these unofficial jobs since their usual workplace safety and health insurance won't apply should anything happen at a job site that is not the one they've been approved for.

'Prevailing wage'

Wages for SAWP workers are set annually by the HRSDC and are supposed to reflect the "prevailing wage" in the labour market for the type of agricultural work being done. For 2012, the prevailing wage rates in Ontario for most agricultural commodity sectors included in the program (including fruit, vegetables, apiary, greenhouse, tobacco, canning) is $10.25 an hour, according to F.A.R.M.S.

Migrant workers are subject to standard payroll deductions such as pension, income tax and employment insurance.

Under SAWP, the employer must enrol workers in a provincial health plan and register them with the workplace safety insurance board. Employers provide free housing (except in B.C., where it is partially deducted from workers' wages) but can deduct the cost of a worker's visa, utilities and part of their transportation from their pay. Extended health coverage is paid for by the source country.

'A big problem is regulation and monitoring and not really having any teeth with respect to enforcement.'— Jenna Hennebry, International Migration Research Centre, Wilfrid Laurier University

When it comes to workplace health and safety, standards vary from place to place and a mix of federal, provincial and municipal authorities are responsible for enforcing them.

Some of the problems that have been identified with regard to inadequate housing and unsafe working conditions for migrant workers can be attributed to the lack of co-ordinated monitoring of migrant work sites to ensure employers have complied with the conditions of the program, says Hennebry. There is no single agency responsible for monitoring migrant workers.

Workers' housing, for example, is supposed to meet certain building and health codes, but it is municipal authorities who are responsible for conducting housing inspections, which means they tend to vary from one area to the next, and often, they happen before the workers actually arrive in the country, with no follow-up.

Provincial occupational health and safety and labour legislation also doesn't apply uniformly. In Ontario, migrant farm workers are covered by the Occupational Health and Safety Act, but in Alberta, agricultural workers are exempt from similar legislation. Migrant workers have been able to unionize on some farms in B.C. and Quebec, but in Ontario, agricultural workers are prohibited from collective bargaining.

"A big problem is regulation and monitoring and not really having any teeth with respect to enforcement," Hennebry said.

Temporary foreign workers program

A pilot project to bring various classifications of low-skilled temporary workers into Canada has existed since 2002. It's called the Temporary Foreign Workers Program for Occupations Requiring Lower Levels of Formal Training, and in January 2011, the federal government created an "agricultural stream" within this broader program to streamline applications from the agricultural sector.

The program is still technically a pilot project, although it is expected to become permanent soon.

The program gives employers much more leeway than SAWP in hiring agricultural workers from abroad. For one, it is not limited to specific countries. The Peruvian workers killed in Tuesday's crash would have come to Canada under this program.

Under the temporary foreign workers (TFW) program, employers can hire from anywhere and can bring workers in for up to 24 months. Workers can be rehired through the program for another 24 months before they have to take a four-year hiatus, during which they are not eligible to work in Canada. 

One of the main differences between the TFW program and SAWP is that there is no standard employment contract. Each employer draws up an agreement with the worker, and although it must be approved by HRSDC, "the government has no role in regulating the contents or compliance of those contracts," said Hennebry.

There is also no formal role for the worker's home country under this program. Unlike with SAWP, employers generally rely on private recruiters, not government officials, to find workers, which leaves workers vulnerable to exploitation and exorbitant finder's fees and also means they usually don't get adequate information and training on work safety and their rights before leaving their country, says Hennebry.

"In the SAWP, at least you have sending-country involvement, and you also have an ongoing relationship and sets of expectations around … standards," she said. "With the [TFW program], you're not going to have anybody necessarily advocating for the workers. … There's no formal role for the sending country.

"That has an impact on the ability of the workers to assert rights and protect themselves."

Unlike with SAWP, employers who hire workers through the TFW program are responsible for the full cost of their airfare to and from Canada, but do not have to pay for housing. They do have to provide "suitable and affordable" accommodation at a cost of $30 a week (or less if specified by provincial standards), which can increase by one per cent a year.

They also have to pay for the worker's health coverage until the provincial health plan kicks in.

Job offers must be genuine

Wages are supposed to follow the same "prevailing rate" guidelines as SAWP, although unlike with SAWP they are not set by the HRSDC, and until recently there has been no clear mechanism for monitoring that employers are actually paying prevailing rates.

In April 2011, however, the government tightened the program's rules governing employer compliance with the terms and conditions of their employment contracts with migrant workers and the genuineness of job offers. Under the new rules, if a worker's wages, working conditions or occupation change substantially from those specified in their original job offer, an employer can be barred from the program for up to two years.

But labour rights groups point out that workers are unlikely to be the ones to point out such discrepancies because of the looming threat of being sent back to their home country. Under both SAWP and the TFW program, employers can repatriate workers if they do not meet the conditions of the employment agreement.

Still, the new rules do require employers who are reapplying to the program to demonstrate they've been compliant with the rules in the past, meaning they could be asked to provide payroll records, proof of payment of health coverage and transportation costs and other documentation.

Hennebry says that while SAWP is still the more popular program for agricultural sector employers looking to bring in foreign workers, interest in the TFW program is growing, which is not necessarily a good thing for workers.

"Both programs are basically operating in the same sector, which is …potentially problematic in terms of employers shopping for the country of origin or group of workers that are going to accept the contract that they want," she said. 

Critics of both programs have pointed out the unfairness of a system that allows foreigners to keep returning to Canada year after year to work but won't allow them to apply for permanent residency in the same way that it does skilled workers, entrepreneurs and investors under the Provincial Nominee Program.

In its 2010-11 report on the status of migrant workers in Canada, the United Food and Commercial Workers union described the migrant worker system as a "system of perpetual rotation .. that keeps ... workers in a perpetually precarious position" and called on the federal government to compel provinces to include migrant workers in the PNP.

"The PNP upholds the principle that if a person is good enough to work in Canada, then they are good enough to stay," the report said.