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.
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
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
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
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
5. Ensure employers who rely on temporary foreign workers have a
firm plan in place to transition to a Canadian workforce over
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
6. Introduce fees for LMOs and increase the fees for work
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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