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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.
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