Canada: Canada’s Temporary Foreign Worker Program Set To Change

Last Updated: May 23 2013
Article by Louise Béchamp, Karen Sargeant and Brian P. Smeenk

Canada's Temporary Foreign Worker Program (TFWP) has been under fire of late.  Temporary foreign workers sued Denny's. Latin American tunnel diggers brought a human rights complaint against SELI. A British Columbia union complained that miners from China were taking jobs in northern BC. And the Royal Bank's decision to contract out received a lot of media attention. The Canadian government has responded - by making seven changes to the TFWP.

The Changes

1. Effective immediately, cancellation of the "pilot program" that allowed employers to pay temporary foreign workers up to 15% less than the region's median wage in certain circumstances

Commentary: Mischaracterization of the pilot program by critics appears to have led to its cancellation. The pilot program allowed an employer to apply to pay temporary foreign workers up to 15% less than the median rate, subject to the requirement that a temporary foreign worker could not be paid less than Canadian workers in equivalent circumstances at the same location. The 15% pilot program did not allow employers to pay all temporary foreign workers 15% less than Canadians. However the mischaracterization stuck and appears to have made the program politically untenable.

2. Effective immediately, temporary suspension of the Accelerated Labour Market Opinion (A-LMO) process

Commentary: The cancellation of the A-LMO program will be of great concern to employers. Under the A-LMO, employers with good track records under the TFWP were able to get Labour Market Opinions within about one month (minimum two weeks advertising and about two weeks for the processing of the application). Cancellation of the A-LMO program is likely to push processing times back to 3 or 4 months or longer.  Delay of that magnitude could cause significant harm to Canadian businesses.

3. Increase the Government's authority to suspend and revoke work permits and Labour Market Opinions (LMOs) if the program is being misused

Commentary: With appropriate safeguards, this appears to be a common sense initiative.  One area of concern is the risk of penalizing a worker by revoking his or her work permit where the employer has misused the system.

4. Add questions to LMO applications to ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs

Commentary: The government has stated that, "[t]hese measures include adding new questions on the LMO application regarding outsourcing and verifying that Canadian employees are not being replaced by foreign workers." It is unclear what is intended because the TFWP is based on the premise that a LMO will not be issued "if there is a qualified Canadian available". 

5. Ensure employers who rely on temporary foreign workers have a firm plan in place to transition to a Canadian workforce over time

Commentary: This appears to be a response to the northern BC miners' situation. The government has stated that all LMO applications will have to include a transition plan. This initiative has the potential of creating additional delay in the preparation and assessment of an application. It is debatable whether a transition plan would be helpful in all situations: a short term project is different from work with ongoing labour needs; the need for a highly educated worker with expertise in a specific niche is different from a situation where a Canadian may be "trained up" in a reasonable period of time, etc. This type of across-the-board initiative may generate more work and delay than benefit.

6. Introduce fees for LMOs and increase the fees for work permits

Commentary: We do not know how much the fees will be or when they will be implemented.

7. Identify English and French as the only languages that can be used as a job requirement

Commentary: This appears to be in response to the allegation that a job posting for the northern miners indicated that Mandarin language skills were required. The government has indicated that exemptions will be granted where the employer can show that the foreign language is a requirement of the job.

What does this all mean for employers?  Immigration Minister Kenney stated in a press conference that one of the objectives of the changes was to make the Program more expensive and onerous, to encourage Canadian employers to work harder to hire Canadians. One thing is for sure - the changes will make the process more expensive and more onerous, and probably slower, for Canadian employers. Only time will tell if it will result in employers finding more qualified Canadians.

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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