Employers frequently resort to the use of foreign workers. In some industries, this is practically unavoidable. Faced with the new reality of foreign workers, many companies have questions about how to manage the workers they hire and the specific conditions applying to them.
Many different circumstances may lead to the hiring of a foreign worker. Often, the employer knows that it will have to make use of foreign labour for various reasons, including local shortage of labour. At other times, the foreigner may apply for a position, while confirming that they are entitled to work here.
In all cases, the employer must ensure that the person holds a valid work permit before they start working. Remember that a person whose social insurance number starts with the number 9 is a temporary worker, and that the employer is required to keep a copy of their work permit on file. The company must also ensure that the employment which is offered meets the conditions contained in the permit (employer, occupation, place of employment, expiry date, etc.).
It is often advantageous for companies to set down in writing the employment conditions offered to their employees. This is particularly true when hiring foreign workers who are less familiar with the customs and realities of the local employment market. Moreover, to satisfy the conditions of temporary low-skilled foreign worker programs, including farm workers and live-in caregivers, the parties must sign an employment contract on the prescribed form. In addition to the salary and some other expenses, the employer must undertake to cover the worker's transportation cost to travel to Canada and back to their country of origin.
For skilled foreign workers, the offer letter or employment contract will be very similar to the document used for other hires, with a few differences. Among other things, this contract should be conditional upon obtaining a valid work permit and maintaining it during the term of employment. The employment conditions should be clearly set down in the contract, and any different treatment from that set out in the original offer should be documented.
MAINTAINING OF EMPLOYMENT CONDITIONS
The regulations contain an obligation on the employer to provide substantially the same employment conditions to a foreign worker as those set out in the initial offer of employment, i.e. the offer used for the initial authorizations (labour market opinion and job offer confirmation, where applicable) and for the work permit. The competent authorities may consider any positive or negative discrepancy of more than 2% as a departure from the applicable rules.
Employers are therefore wise to inform the authorities of any such change in the employment conditions. It is easy to imagine the possibility of a salary increase of more than 2%, the payment of a performance bonus, a promotion, cuts applied to all the employees, or a reorganization resulting in the offer of similar, but nevertheless different, positions. One must therefore be very careful when a change in the business affects a foreign employee or their employment conditions are adjusted. A breach by the employer may make it ineligible to hire any foreign worker for a period of two years. This includes the renewal of the permits of workers unaffected by the infraction.
OTHER SPECIAL CONDITIONS
It is preferable to cover other special conditions applying to foreign workers in the employment contract or the company's applicable policies in order to avoid any ambiguities. A prudent employer will generally wish to specify who will be responsible for paying the expenses incurred to obtain visas and permits, travel expenses, moving expenses and the conditions thereof, etc. Furthermore, if the employer provides or contributes to the search for temporary housing in the first few weeks, or pays for return trips to the country of origin, the conditions of such special arrangements should be set down in writing.
Similarly, if the employer invests a substantial amount in the ancillary expenses associated with hiring the foreign worker, it could be useful to provide for a proportional method of repayment by the foreign worker based on the duration of the employment in the event they decide to leave within a specified time period. The terms and conditions applying at the end of the employment should also be specified, including for the return home, the expenses for the sale of the house, and any penalties on a car lease.
Also, in order to attract talent, businesses sometimes offer language or local culture courses for the employee and their family members. One may also wish to consider paying for the tuition fees of dependent children to enable them to attend a school whose program more closely resembles the education system of the country of origin. In short, there is much room for creativity, but it is best to manage expectations from the outset.
A foreign worker holding a work permit for a specific employer, that is valid for more than 6 months, is generally eligible for the Quebec Health Insurance Plan. However, unless provided under a bilateral agreement between Quebec and the foreign worker's country of origin, coverage under Quebec's public health plan only takes effect after a 3-month waiting period. Private insurance should therefore be secured to provide coverage during this period for the foreign worker and the accompanying family members to avoid any unpleasant surprises.
The eligibility criteria for the public occupational health and safety program are generally the same for foreign workers as for Canadians. The same is true of the public employment insurance program. However, foreign workers having a work permit for a specific employer are not considered to be available for employment since they cannot, technically, seek other employment without first obtaining a new work permit. Their eligibility for employment insurance can therefore become more complex.
END OF EMPLOYMENT
In Quebec, the provisions dealing with termination of employment of such legislation as the Act respecting Labour Standards and the Civil Code of Quebec are of public order. Foreign workers are therefore also protected by this legislation. However, frequently, the end of a temporary foreign worker's employment also means the end of their stay in Canada and the return to the country of origin. The employment contract and policies put in place by the employer on this subject may be useful in managing expectations and ending the relationship harmoniously.
Foreign workers are often hired to meet the critical needs of a business, but, in doing so, it is important for the appropriate documentation and requisite protective measures to be put in place to ensure this adventure is a happy and painless one. This will avoid needless risks to your business.
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.