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Fonseca replies to CPCR’s position paper on caregivers

By Rodel J. Ramos

Ontario MPP Peter Fonseca was appointed Minister of Labor in Ontario September 2008. He heard of the many problems of the Live-in Caregivers Program much later from newspapers starting with the Juana Tejada case and others.

Immediately thereafter he held meetings with the Philippine Consul General Alejandro Mosquera and Labor Attache Frank Luna about the cases. Peter also called Federal Minister of Immigration Jason Kenney about the problems and asked him to fix it. He knew it was a complicated case because it is a Federal Program, yet it has a Provincial component. He wanted to wait for the Federal to act on the problems, which explains the delays of his actions and the exposé of Toronto Star reporters on the exploitation of caregivers.

MPP Mike Cole, a friend and colleague took pity on the caregivers and filed Bill 160 which has passed 2nd reading in Queen’s Park. This was adapted from the Manitoba legislation on caregivers. But then, Manitoba has only 240 caregivers and Ontario has more than 9,000. It was necessary to know the extent of the problem in Ontario before they can come out with the right Bill.

Right now, Minister Fonseca has conducted a series of Round Table Discussions with leaders of caregivers organizations and the Filipino Community.

At one meeting, Fonseca invited Filipino leaders in his Riding of Mississauga East. Pastor Julius Tiangson, Director of Gateway Centre was there with Janet Colayco, a newly arrived caregiver who was dumped by an employer at the corner of Hurontario and Ceremonial. The employer no longer needed her services. It was good that Janet met a few Filipinos who gave her shelter and food. Also, that she met Pastor Julius who was willing to help. Migrante was represented at the meeting by Diwa Marcelino and EranAtendido. Geopo Dacanay represented Peel Basketball Association (PEBA), Terry Olayta is head of the Caregivers Resource Centre, Louroz Mercader and Zeny Caibigan. Hermie Garcia represented Community Alliance for Social Justice (CASJ) and the Philippine Reporter. On the Minister’s side were Senior Policy Adviser Cara-Marie O-Hagan, Senior Special Assistant – Caucus Outreach Seema Bakshi, John Kovak and Marjorie.

At this meeting, he promised to ban the recruitment agencies in charging recruitment fees from caregivers. Penalties will be imposed on those who violate the law and blacklisted in their website. He knew this practice was already banned in Manila, Manitoba and British Columbia. However, the problems are those caregivers who exit from Hong Kong, Taiwan, Singapore, Middle East and Europe. They are not being oriented on these policies. The Government has no control on those agencies outside the province.

He also promised to have a 1-800 number soon which will be backed up by a team to investigate complains specially regarding Labor Standards in Ontario. However, he had doubts on whether caregivers will complain on their employers because their permit is tied on their stay with them, unless the caregivers are brave enough and have been oriented on their rights and know where to go for help.
Fonseca is thinking of coming out with a Manual which specifies the laws, rights and obligations of agencies, employers and caregivers. He believes the Live-in Caregivers Program is here to stay because of the aging population, the increase of babies in a growing population and the trend of the government to accept home care as an alternative to being in hospitals and nursing homes for the sick and elderly.
He promised before the year is over, a Bill will be passed into law concerning the caregivers problems but again it will not solve all the problems because it is a Federal program and they don’t support it with resources and manpower.

Before this, Fonseca met with Geopo Dacanay, Terry Olayta and Merfa Yap Bataclan of Caregivers Resource Centre and myself to discuss how we can help Cecilia Mansibang who had cancer with six months to live and was about to be deported. OHIP did not want to cover her healthcare needs because she did not have an employer. We also discussed with him how he as Minister of Labor can help our suffering people. He said that he had already talked with Minister of Immigration Jason Kenney and the Minister admitted that the system was broken and need to be fixed. So Fonseca wanted to know what the Federal was going to do first.

The Minister of Labor also asked his friend Minister of Education Kathleen Wynne, MPP of Don Mills and others to conduct consultations with their constituents to get to the root of this problem.

The Province of Ontario does not even know who came to Ontario because the Federal Government approves LCP applicants. The Federal should give them a list of those who arrive in Ontario so that they can be monitored and supervised. They have no way of learning about them until they come to complain in the office of the Ministry of Labour and most of the time, it is too late or they are in big troubles. Also, this is rare because the caregivers are afraid that their employers will not release them or even say they did not work for them. It is because of the restrictions of the Federal that limits their options.

Meanwhile Minister of Immigration Jason Kenney is scheduled to meet with leaders of the caregiver organizations and members of the Filipino community on Sunday April 26 at their Regional Office on King St. West.

We also discussed with Fonsecasome of the proposals of The Coalitiion for the Protection of Caregivers’ Rights (CPCR), led by Pura Velasco, a long time leader in the campaign to change the Live-in Caregiver Program (LCP) and for the Province of Ontario to act on some of their problems. Below are the answers of the Minister of Labour on those proposals.

To the Provincial Government

1) Set a common wage rate for all caregivers, not lower than the highest prevailing wage rate for service workers at the time of the LCP changes, and make the standard workweek hours that are applicable to the majority of workers, applicable also to live-in caregivers.

Fonseca’s answer: Ontario Minimum wage which is applicable to all including caregivers is now $9.50/hr and will be $10.25/hr on March 2010.

2) Enact regulation with respect to minimum labour standards, which distinguishes between night-time and day-time hours of work. Make sure that additional hours of work that are night-time hours be paid at one-and-one-half of the regular hourly rate. Where the services of a live-in caregiver are required all throughout the night, the caregivers should be paid one-and-two thirds the regular hourly rate.
Fonseca: This will be checked with Employment Standard Office.

3) Inspect all caregivers’ workplaces and living quarters prior to and following hiring and occupancy. Random inspections should also be mandated and occur regularly throughout the duration of the program.

Fonseca: The Privacy Act does not allow inspections on homes. However, when someone calls to complain, then the Ministry can send inspectors and will demand compliance of requirements of the law. (Will check on requirements under the law)

4) Ensure that the caregivers are eligible for continuous health insurance/health benefits from the time they arrive. Considering that the homes are unregulated and employment standards are not monitored, caregivers face risk everyday caring for the family, the sick and the disabled.

Fonseca: There is a 3 months wait in applying for OHIP just like anyone else. To be covered, caregivers are advised to get a Private Medical Insurance for 3 months and apply immediately for OHIP coverage just like new immigrants just in case they need health care services.

Under the new Regulation 552 Changes – OHIP Eligibility, Effective April 1, 2009 under the Health Insurance Act includes:

• Temporary Foreign Workers holding open work permits issued by Citizenship and Immigration Canada (CIC) who are working in full-time employment for an Ontario employer under an agreement for a period of at least 6 months will now be eligible for OHIP coverage as well as their spouse and dependents who are legally entitled to remain in Canada.

• Sponsored Family Members of Canadian Citizens or Permanent Residents (Applicants for Permanent Residence) may now receive OHIP coverage on an earlier basis as they will no longer have to complete the immigration medical as a requirement for OHIP. However, the Federal Requirement of a 2nd medical still stays since it is a Federal law which only the Federal Government can amend.

• Sponsored Family Members of Canadian Citizens or Permanent Residents (Temporary Resident Permit holders) are eligible for OHIP coverage.

5) Guarantee that caregivers, who are vulnerable to workplace accidents and injuries, are entitled to accident and income protection under the WSIB program just like other Canadian workers. It also must ensure that employer premiums are mandatory.

Fonseca: Caregivers are covered under the WSIB program just like other Canadian workers which gives them 85% of wages in case of accidents or injuries. However, employers under the caregiver program should be reminded that they take an insurance to cover accidents and injuries in their homes.

6) Immediately remove the $10,000 cap on claims for unpaid wages. Lengthen the deadline for filing claims to two years replacing the current six months deadline. These changes will give caregivers and domestic workers a better chance in filing successful claims against ESA violations. According to the 2005-2006 Ontario Ministry of Labour Report, employers had violated workers’ rights in 11,358 claims and owed $37 million in unpaid wages.

Fonseca: This is noted and an inquiry will be made.

7) Regulate and monitor the operations and practices of employment agencies and private individuals involved in the recruitment and placement of foreign caregivers and other migrant workers. Deterrents to and penalties for illegal recruitment must be legislated. Peter Fonseca: The proposed law will make it unlawful to charge applicants for caregivers fees.

To the Federal and Provincial Governments

1) The provincial Ministries of Labour should regularly monitor compliance with the employment and occupational health standards within homes where caregivers work. It will maintain a list of employers who have repeatedly violated the employment rights of the workers. The list will be shared with its federal counterpart, which has the power to deny a non-compliant employer to hire another caregiver.
Fonseca: The Federal Government has the records on these violators of employment rights of workers. The Province does not know who are coming in covered by this program and it has to be shared with the Provincial Governments. Once we have this, we will publish this on our website and share it with the public.

2) Create a Central Registry as a branch of CIC with the power to require mandatory registration by employers and employment agencies when they hire and place caregivers. This structure will coordinate with its provincial counterpart to create a system that will make caregivers visible. It will maintain a list of employers who have repeatedly violated employment contracts and have not provided suitable working conditions. This office will also have the power to confirm an employers’ authorization to hire. The resources of the Central Registry must be accessible to community organizations advocating for caregivers’ rights and welfare.

Fonseca: It is better that the Federal Government makes the Central Registry because it will cover all the provinces. They know who are coming and where. However, the Province of Ontario is willing to publish such in their website for the public to know.

3) Allow caregivers the constitutional right to the freedom to associate and bargain collectively under the provisions of the Canadian Charter of Rights and Freedom, taking into account the non-compliance with labour standards where caregivers are concerned.

Fonseca: The question here is, how can you unionize an employer who only has 1 employee?
4) Oblige those employers in the Live-In Caregiver program (LCP) to undergo a government-approved orientation on the Employment Standards, and Occupational Health and Safety Acts of Ontario and other matters concerning the employment of caregivers.

Furthermore, said employers should submit an affidavit or proof of attendance at that orientation, with a signed commitment to abide by the provisions of these Acts, violations of which shall merit stiff penalties.

Fonseca: This will be studied. However, a Manual containing Employment Standards and Occupational Health and Safety Acts of Ontario and other matters will be made for employers, agencies and caregivers so that they would know their obligations and responsibilities. It will also tell them where to go in case of problems.

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