As was widely publicized last week, effective April 24, 2014,
the Honourable Jason Kenney, Minister of Employment and Social
Development Canada (ESDC), directed officials to establish a
moratorium on the Food Services Sector's access to the
Temporary Foreign Worker Program (TFWP). In recent weeks, the
Government of Canada became aware of some serious allegations of
abuse of the TFWP. In response, officials investigated these
matters urgently to determine the facts, Labour Market Opinions
(LMOs) were suspended, and employers in question were placed on a
public blacklist. Despite these actions, there remain serious
concerns regarding the use of the TFWP in the Food Services Sector.
As such, ESDC/Service Canada will no longer process new or pending
LMO applications for this industry sector until the completion of
the on-going review. A list of all affected occupations and job
titles has been published online by ESDC.
In order to crack down on employer non-compliance with the TWFP,
the Minister issued three Ministerial Instructions on December 31,
2013, one of which is the ability to issue a Refusal to Process
LMOs if there is new information indicating that employing foreign
workers in Canada in any portion, sector, region, or occupational
group, may have or will have a significant negative effect on the
Canadian labour market.
The Minister also announced on December 31, 2013, that
ESDC/Service Canada will have the authority to conduct inspections
to verify an employer's compliance with the Immigration and
Refugee Protection Regulations (and confirmed in the LMO
letter and annexes) for a period of 6 years, beginning on the first
day of the period of employment for which the work permit is issued
to the foreign worker. Employers should be aware that, when
conducting inspections, ESDC/Service Canada has the authority
Require that employers provide documents to verify their
Conduct on-site visits without a warrant; and/or
Interview foreign workers or other employees, by consent.
Where there are reasonable grounds to suspect non-compliance,
ESDC also has the authority to suspend LMOs, temporarily removing
the force or effect of an LMO during its period of validity and
prior to a corresponding work permit being issued.
ESDC/Service Canada continues to be authorized to review an
employer's compliance (regarding wages, working conditions, and
occupation) by conducting an ECR as part of the LMO assessment at
the time of an LMO application, and may now review the 6-year
period prior to the receipt of the LMO application (previously
authorized to go back two years).
Best practices for employers to ensure they remain compliant
Retaining all documents to demonstrate LMO conditions were met
from the first day of employment of the foreign worker and up to 6
Contacting ESDC/Service before changing conditions set out in
the LMO letter and annexes, even if the foreign worker agrees to
Cooperating with ESDC/Service Canada during investigations and
Working with the advice of your lawyer or authorized third
Keeping on top of regulatory updates and changes.
While there appears to be a growing public concern over TFWs,
they remain vital for many employers to maintain and grow their
businesses. Ensuring compliance is important to protect
employers' access to this source of labour and to respond to
criticisms that may be made (rightly or wrongly) against the use of
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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