In April 2011, regulatory changes that significantly alter the Temporary Foreign Worker Program came into force. Each employer hiring foreign workers is subject to these changes and must since abide by the new standards.
The growing importance of this workforce on the labour market and the vulnerability of some of these workers have led to the amendments. To make sure that the competent authorities have the means to protect the integrity of the Temporary Foreign Worker Program and thus ensure that employers do not commit abuse, the regulatory changes include a new step in the work permit issuance process: the assessment of the genuineness of the job offer.
Unless he benefits from an exemption, the employer who wants to hire a foreign national must first obtain a labour market opinion (LMO). Even though technically the assessment of the genuineness of the job offer occurs when the work permit application is submitted, the officer's decision is based upon the opinion of the department of Human Resources and Skills Development Canada (Service Canada). It is therefore the LMO application processed by Service Canada that will most of the time trigger a more thorough verification by the authorities.
When assessing the genuineness of the job offer, the authorities make sure, among other things, that the employer has complied with the federal and provincial laws that regulate employment, or the recruiting of employees, in the province where the foreign national will be employed. Employers who have been sanctioned for certain offences regarding occupational health and safety, labour standards or infringement of rights and freedoms, among others, may be deemed ineligible to hire foreign nationals, even if that offence is not related to a foreign worker.
It is important to point out that this restriction also applies to a recruiter acting on behalf of the employer. The use of third party recruiters with regards to foreign workers is increasingly common. Considering that a past violation by the recruiter could result in a work permit denial, one needs to be cautious when choosing a recruiter and should provide for a verification and compensation mechanism.
In addition, before issuing a work permit, the authorities will verify if the employer, during the two years prior to filing the application, has complied with the working conditions (including wages and occupation) set out in the job offer to the foreign nationals he employs. The verification powers of the authorities in this respect apply to all foreign nationals employed and not only to those for whom he has obtained a LMO. Consequently, any change in the working conditions during the validity of the work permit should be brought to the attention of the Canadian authorities before coming into force. If not, the employer faces sanctions, even if the new working conditions are more advantageous to the foreign worker. These sanctions include a two-year prohibition from hiring temporary foreign workers and the publication of the name of the non-compliant employer on the Citizenship and Immigration Canada website.
To this end, a possible preventive approach could be to include, in any job offer made to a potential foreign worker, a provision providing that working conditions can be modified from time to time, including based on an employee's job performance. This way, it would be possible to make wage adjustments and other changes considered to be common practice. The wording of such a provision should be carefully drafted.
The employer targeted by a verification or an inquiry conducted by federal authorities will be required to prove, with proper supporting documents, that he has complied with his commitments to foreign workers he hired and that all representations to competent authorities with respect to LMO applications and work permits are truthful.
A record should be kept for every foreign worker. In addition to a copy of a valid work permit, this record should include the documentation submitted to the authorities and proof of a thorough follow-up regarding compliance with working conditions. A cautious employer will keep a copy of all notices and communications forwarded to the authorities in order to demonstrate, in the event of a verification, that he has complied with the requirements of the Temporary Foreign Worker Program.
To sum up, each employer using foreign workers must establish and maintain internal processes for verification and tracking, to be ready in the event of an inquiry conducted by the authorities or when making representations to the authorities with regards to a work permit or LMO application. In order to hire a foreign worker, an employer must now have clean hands, keep them clean and be able to prove it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
