Canada: What HR Professionals Need To Know About Immigration Law. PART I: Is Your Company Compliant?

Last Updated: January 3 2012
Article by R. Reis Pagtakhan

Last month, an Edmonton company was fined $36,000 for employing temporary foreign workers ("TFWs") who were not authorized to work in Canada. As well, a Vancouver man was fined $8,000 for telling a group of TFWs to state they were coming to Canada to visit when they were coming for work. With over a dozen legislative, regulatory and operational changes affecting companies with TFWs coming into effect this year, is your HR department compliant?

What are the consequences of non-compliance?

As these two court cases demonstrate, courts will fine both employers and employees acting on the employer's behalf. However, there are other penalties that are more dramatic.

Under the law, an employer who employs a TFW (persons who are neither Canadians nor Canadian Permanent Residents) who is not authorized to be employed in Canada can face fines of up to $50,000, as well as a term of imprisonment of not more than two years. In addition, a person who counsels an individual to misrepresent themselves (e.g. an HR employee who counsels TFWs to lie or mislead immigration) can face fines of up to $100,000 and a term of imprisonment not more than five years.

On an administrative basis, failure to comply with immigration laws can also result in an employer being prohibited from hiring any TFWs in the future and can result in employers being listed on a publicly available employer ineligibility list.

Is your company compliant with employment and recruitment laws?

In immigration applications, employers must establish that they, and any representative acting on their behalf, have been compliant with relevant employment and recruitment laws before hiring any TFWs.

The requirement to show compliance is quite broad. Currently, Citizenship and Immigration Canada has not clarified which employment law violations result in the refusal of a work permit (the document that allows a TFW to work in Canada). When these regulations were first proposed in 2009, the Canadian Bar Association expressed concern that a minor provincial Health Act violation (like an employee not wearing a hairnet) could be the basis of determining noncompliance as a similar situation occurred under Alberta's Immigrant Nominee Program. As a result, it is possible that violations of laws unrelated to the work a TFW will do can result in the refusal of a work permit.

Has your company made sure all employees are legally entitled to work in Canada?

Compliance also means that an employer must ensure that all workers are legally entitled to work for them in Canada. In Manitoba, this also means that TFW recruitment must comply with the Worker Recruitment and Protection Act and the employer maintains all necessary records under this legislation.

Has the employer offered substantially the same wages and working conditions to all TFWs in the past?

The law also requires employers to prove that they have provided "substantially the same" wages, working conditions and employment to past or existing TFWs. As a result, employers must establish that for two years prior to any new application to employ a TFW, there were no substantial changes to employment contracts of any of their current or past TFWs.

This requirement does not depend on whether a work permit is being sought for a new or existing employee. Noncompliance with respect to one TFW can affect the ability to hire new TFWs.

For instance, if an employer represents that it will hire a TFW as a mechanic at $25/hour and only pays the mechanic $20/hour, the employer would fail this test. If, within two years of this violation, the employer seeks to hire another TFW to be its company's president, the failure to pay the mechanic the stipulated wage could result in the refusal of a work permit to the president.

Stay tuned for Part II in this series "Implementing Systems to Ensure Compliance".

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.

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