Monday, 27 February 2012

LCP and “Nanny Poaching”

Filipiniana News – February 2012
RHYME & REASON

A few days ago, the Toronto Star published an article about the allegedly increasing incidence of “nanny poaching”.  That is, due to the alleged shortage of live-in caregivers, prospective employers resort to “stealing” other people’s caregivers by enticing them with higher salaries and more attractive benefits.

It is a well known fact that in the business world, headhunters and recruiters do it all the time: enticing excellent but employed candidates with better salaries and other benefits to move to other employers.  This practice is so widespread that it will hardly prove to be newsworthy. 

Now when this is happening to live-in caregivers, why is it suddenly considered newsworthy and a matter of great ‘concern’?  Are live-in caregivers less deserving of competitive wages and benefits than other workers?  Are they considered mere objects ‘owned’ by their employers that they do not have a right to choose who to work for and under what conditions?

The premise behind the so-called ‘problem’ illustrates a fundamental flaw behind the Live-in Caregiver Program (LCP).  As this news article illustrates, the LCP perpetrates a modern-day form of slavery or involuntary servitude.  Aside from extracting highly-educated people from poorer nations to serve families in a richer nation as Canada, they are required to work as full time live-in caregivers for at least two years before being deemed to qualify for permanent residence for themselves and their family members (spouses and dependent children). 

The requirement to “live-in” with the employer and to obtain an employer-specific work permit instead of being given the option to work as a “live-out” or for any other employer without need to go through administrative hoops, only exacerbates the power imbalance that exists between the caregiver and the employer.  I find it deeply disturbing therefore, to hear allegations that caregivers now have more power over their employers simply because changes were made to the LCP which were meant to protect the vulnerable caregivers from widespread abuse and exploitation in the first place.

Although I do not necessarily agree with all the reforms introduced by the present government to Canada’s immigration system, the changes to the LCP, are at least steps in the right direction.  The objective of putting measures in place to prevent recruiters from exploiting the caregivers’ desperation to work and migrate to Canada, and employers from committing egregious violations of the caregivers’ basic rights, can only be commended and encouraged. 

Although I am one for achieving a healthy balance towards protecting everyone’s rights, including employers and legitimate caregiver agencies, the latter should also keep in mind the systemic barriers and disadvantages that live-in caregivers have historically suffered and which sadly persist to this day.  Unlike employers and employment agencies, the caregivers rarely have the economic, social and political influence that could significantly make things easier to advance one’s interests.   It is only recently that caregivers’ issues have caught the public attention after many years of persistent calls and lobbying by tireless community advocates. 

For those who were not able to read the article written by Toronto Star reporter Nicholas Keung, some excerpts follow:
“The shortage of live-in caregivers has been exacerbated since mid-December when the federal government issued 14,000 open work permits to nannies who met the employment hours to apply for permanent residency.
“The open work permits allow nannies to work outside of an employer’s home and in the field they choose, and many have since given their two-weeks notice and left their jobs.
“The flood of open work permits has evaporated the local nanny market right across Canada. Nanny poaching is becoming rampant. When nannies arrive from overseas, they are more likely to leave because they know they have five families waiting,” said Manuela Gruber Hersch of the Association of Caregiver and Nanny Agencies Canada.
“It is now a nanny’s market. It will become worse before it will get better.”
“Live-out caregivers are not an option, not only because their pay, in the range of $14 and $18 an hour, is much higher than the minimum wage of $10.56 for their live-in counterparts, their hours are also less flexible, especially when care is needed overnight.
“The industry group’s Gruber Hersch said the shortage has driven up wages and families who live in sprawling suburban neighbourhoods and have multiple children are left behind as nannies can afford to pick better working conditions.” 

The above statements not only reveal current unacceptable practices but also a clear bias towards maintaining the unjust status quo for the benefit of the economically privileged.   For instance, it reveals that “flexible”, “overnight care” are still being paid minimum wage (if at all) when the law clearly requires much more in terms of overtime pay.  

Second, being a caregiver in “sprawling suburban neighborhoods” with “multiple children” would clearly entail a lot more work than being a caregiver for a single child in a more modest home.  However, the law does not at all require a corresponding increase in wages for caregivers of multiple children and for those who are also made to perform various chores in a palatial home.

Third, why is being able to “afford to pick better working conditions” such a bad thing?  Wouldn’t any worker want the same freedom or opportunity?   Wouldn’t we want the same for ourselves?

A longstanding caregiver advocate, Pura Velasco, was quoted in the same article as saying: “If employers want to keep their nannies, they must treat them well.” 

That would be ideal.  Unfortunately, even such a simple task can be a tall order within the framework of a deeply flawed program such as the LCP.

The author is an immigration lawyer in the GTA  and may be reached at deanna@santoslaw.ca.