Canada: Government Of Canada Announces Significant Overhaul Of The Temporary Foreign Worker Program (TFWP)

On June 20, 2014, the Honourable Jason Kenney, Minister of Employment and Social Development, and the Honourable Chris Alexander, Minister of Citizenship and Immigration, announced a comprehensive overhaul of the Temporary Foreign Worker Program (TFWP).

The reforms cover three key areas: reorganizing the TFWP structure, restricting access to the TFWP to ensure Canadians are first in line for available jobs; and adopting increased enforcement measures and penalty regimes.

The Government of Canada's announcement comes after months of controversy and adverse media coverage involving the TFWP. It appears that the overhauled TFWP is attempting to achieve a balance between an adequate influx of temporary foreign workers and satisfying concerns over the protection of domestic workers' rights. However, the Government of Canada has made a point in emphasizing that the new TFWP will be a "last resort" for employers to fill jobs for which qualified Canadians are not available. The efficacy of these changes has already been questioned by several small business advocacy organizations.

To track these changes, Employment and Social Development Canada (ESDC) will publicly post data on the number of temporary foreign workers approved through the TFWP on a quarterly basis starting in the fall of 2014. The names of corporations that receive a positive Labour Market Impact Assessment (LMIA) will also be posted.

Restricting Access to the TFWP

The TFWP will now refer to only those streams under which foreign workers enter Canada at the request of employers following approval through  a new Labour Market Impact Assessment (LMIA). This is distinct from the new International Mobility Programs (IMP) which will include those streams of foreign nationals who are not subject to an LMIA.

The new LMIA is considered more comprehensive and rigorous than the old Labour Market Opinion (LMO). Employers must provide additional information, including: (i) the number of Canadians that applied for their available job, (ii) the number of Canadians the employer interviewed, and (iii) explain why those Canadians were not hired. Employers must now also attest they are aware of the rule that Canadians cannot be laid-off or have their hours reduced at a worksite that employs temporary foreign workers.

Wage levels will also replace the previous National Occupational Classification (NOC) as the main criteria for administering the TFWP. Jobs for which wages are below the provincial or territorial median wage will be considered "low-wage," while those being paid at or above the provincial/territorial median will be considered "high-wage."

Province / Territory

Wage ($ / hr)

Newfoundland and Labrador

$20.19

Prince Edward Island

$17.26

Nova Scotia

$18.00

New Brunswick

$17.79

Quebec

$20.00

Ontario

$21.00

Manitoba

$19.00

Saskatchewan

$21.63

Alberta

$24.23

British Columbia

$21.79

Yukon

$27.93

Northwest  Territories

$32.53

Nunavut

$29.96

LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries will be provided within a 10 business day service standard.

This contrasts significantly with the new TFWP cap to limit the proportion of low-wage temporary foreign workers that a business can employ. Effective immediately, employers with 10 or more employees will be subject to a cap of 10% on the proportion of their workforce that can consist of low-wage temporary foreign workers. This cap will be applied per employer worksite and is based on total hours worked at that worksite. Effective immediately, employers who apply for a new LMIA but have more than 10% of their employees in the low- wage TFWP category will be limited at 30% or frozen at their current level, whichever is lower. This transition measure will be further reduced to 20% on July 1, 2015 and reduced again to 10% on July 1, 2016.

ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. This applies specifically to applications for positions that require little or no education or training in economic regions with an unemployment rate at or above 6%. This is effective immediately.

All LMIAs will now be limited to a maximum of one year for low-wage positions, instead of the two year duration under the old TWFP.

Employers who want to hire temporary foreign workers in high-wage occupations will be required (with limited exceptions) to submit transition plans with their LMIA application to ensure that they have a firm plan in place to transition to a Canadian workforce to reduce their reliance on temporary foreign workers over time. Employers will need to report on  the success of their transition plan should they reapply to hire high-wage temporary foreign workers. Employers must also report on the results of their transition plan if they are selected for an inspection.

Raising the LMIA Fee

The LMIA fee is increasing from $275 to $1,000 for every temporary foreign worker position requested by an employer. It also appears that ESDC is seeking the authority to impose an estimated $100 privilege fee on employers processing open work permits during the LMIA process. Further fee adjustments may be expected.

Increased Inspections and Monetary Penalties

Effective immediately, ESDC is increasing the number of inspections with a target goal of inspecting one in four employers who use the TFWP each year. Inspector authority has also been expanded to include: (i) immediate inspections upon receiving complaints, (ii) warrantless on-site visits, (iii) temporary foreign worker interviews with employee consent, (iv) an extension to the time for verifying wages/ working conditions from two years to six years, and (v) TFWP bans for employers who break the rules.

The updated inspection regime requires employers to keep all documents related to applications (including recruitment documents) for six years. As of fall 2014, ESDC will also be able to compel banks and payroll companies  to provide bank records and payroll documents to ensure employer compliance with TFWP rules. Employers should be aware that since December 31, 2013, inspectors can review all 21 TFWP program requirements when conducting inspections.

ESDC also has the authority to suspend or revoke the employer's LMIA. LMIAs are suspended when an employer is suspected  of breaking the rules and LMIAs are revoked when, following an investigation, an employer is found to have broken the rules. Beginning in fall 2014, the Government will impose fines of up to $100,000 (depending on the severity of the offence) on employers who break TFWP rules. ESDC will also publicly disclose the names of employers who have been fined  and the amount of that fine on a publicly accessible Blacklist website.

Conclusions

Employers, particularly those in the Information  Technology, Telecommunications Accommodation, Food Services and Retail Trade sectors, will likely see dramatic short-term impacts in response to the  above TFWP changes. The increased risk of inspection and the expanded penalty regime (maximum $100,000 fine) will also likely require employers to critically review the decision to bring in foreign workers over local candidates. Employers should also be mindful of the expanded LMIA criteria and $1,000 application fee.

View the PDF of the government's action plan here.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions