The Minister of Citizenship and Immigration introduced
amendments to the Immigration and Refugee Protection
Regulations effective April 1, 2011, with the policies and
procedural guidelines periodically revised since then, giving
additional responsibilities to the three government agencies noted
below that play a role in the Temporary Foreign Worker Program to
further protect temporary foreign workers while strengthening the
integrity of the Temporary Foreign Worker Program and providing for
enhanced monitoring of employers that make use of the program. The
amendments were introduced pursuant to the authority conferred on
the Minister by the Immigration and Refugee Protection Act
and are discussed below in their current form. It should
be noted that these regulatory changes will be of no real help to a
temporary foreign worker who is working for an employer that fails
to pay the wage promised. Aside from reporting the situation to the
authorities or hoping that the employer will eventually compensate
the worker voluntarily, the worker's only other options are to
file a complaint or take proceedings based on his or her employment
contract, provincial legislation, or based on the collective
agreement if there is one.
The agencies affected by the changes and the activities they engage in are:
- Human Resources and Skills Development Canada/Service Canada: analyze Labour Market Opinion (LMO) requests in order to ensure that the employer has made reasonable efforts to train or recruit a Canadian or permanent resident and that the employment offer will be positive or neutral for the Canadian job market.
- Citizenship and Immigration Canada: analyze work permit applications filed abroad in a Canadian Visa Office and within Canada.
- Canada Border Services Agency: examine work permit applications made directly at air and land ports of entry into Canada.
The tightened requirements are in the areas discussed below.
Genuineness of the Job Offer
This analytical test, which existed de facto before the amendments, must now be applied rigorously and formally by government officials in assessing a job offer made to a temporary foreign worker. The purpose is to ensure that the employer is serious and a bona fide participant in the Temporary Foreign Worker Program, by validating that it is compliant with the laws and regulations governing work and the recruitment of labour, actively engaged in a business operating in the sector in which the job offer is made and capable of reasonably fulfilling the terms of the job offer, and that the offer matches its legitimate labour needs.
To date, this exercise, which is essentially discretionary, has not been the subject of any actual guidelines published by the authorities concerned. Our experience would indicate that employers who are not well known to the authorities or are participating in the Temporary Foreign Worker Program for the first time will tend to be asked to provide documents such as articles of incorporation, contracts, operating licences or financial statements.
Compliance by the Employer in the Two Previous Years
The new regulations provide that the authorities are to formally verify the employer's compliance history by checking that it has, during the two years prior to such verification, paid and provided every foreign worker with wages and working conditions "substantially the same" as what was set out in the original commitment.
Where it is determined that the employer has failed to do this, it may be exempted by citing a change to the applicable law or to a collective agreement, the implementation of measures in response to significant economic changes directly affecting its business provided such measures do not target temporary foreign workers disproportionately, its good faith in misinterpreting its obligations provided the aggrieved workers are duly compensated, an accounting or administrative error as long as sufficient efforts have been made to compensate the affected worker, and any other similar justification.
Where the authorities are of the opinion that a reasonable justification has not been provided, the employer can be declared ineligible to participate in the Temporary Foreign Worker Program for a period of two years and the employer's name can be published on Citizenship and Immigration Canada's website. A foreign worker may then be prohibited from entering into or extending an employment relationship with an employer declared ineligible. A foreign worker whose work permit was issued while the employer was in good standing cannot be prevented from continuing to work until his or her status expires, but any renewal of the permit to work for an ineligible employer will, when the time comes, be denied automatically.
To date, no employer has been declared ineligible.
Limit on the Time That a Foreign Worker Can Work in Canada Temporarily
The government has set a cumulative cap of four (4) years on the time that a foreign worker can work in Canada under a temporary work permit. The four (4) year cap is calculated beginning on April 1, 2011 and is not retroactive. With certain exceptions, the authorities can therefore deny an application for a work permit once the four (4) year cap has been reached. Foreign workers exempted from the cap include those in managerial or professional occupations (National Occupational Classification Levels O and A), those who have applied for permanent residence and have been issued a Certificat de sélection du Québec (Québec Selection Certificate) in the skilled worker class, and certain foreign workers whose jobs may be exempted from the LMO procedure.
Impact of the Amendments
Given the acute labour shortage in certain business sectors, Canada absolutely needs temporary foreign workers. In that context, these changes mean that a more extensive examination is to be made of the genuineness of job offers, and also of the compliance record of employers that have used the Temporary Foreign Worker Program. The amendments, which seek to enhance the integrity of the program and protect future temporary foreign workers in vulnerable situations, are very general and thus open the door for government officials to exercise discretionary power, with the inherent potential for lack of uniformity in administration. For example, since the notion of "substantially the same" is not defined, and in the absence of formal guidelines, a review of a given employer's compliance could well vary from agent to agent.
It is likely that annual increases in remuneration that are in line with inflation, or whose percentage will apply to all employees in the company, may not pose a problem for compliance purposes. On the other hand, where a significant change, including a large salary increase, is anticipated, the employer would do well to make full disclosure to the authorities, or be faced with having to request a new LMO and a new work permit.
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