On June 8, 2013 the Government of Canada published a number of proposed amendments to the Immigration and Refugee Protection Regulations that will affect how Canada’s Temporary Foreign Worker Program (TFWP) is administered and regulated. If the proposed amendments are implemented, they will have significant implications for employers who make use of the TFWP.
Employers will need to meet new and increased requirements for hiring foreign workers, and mechanisms for ensuring employer compliance with the program will be strengthened. These regulatory changes, according to the Government of Canada, are intended to ensure that the integrity of the Canadian labour market and the TFWP is protected by ensuring that foreign workers are only hired when Canadian citizens and permanent residents are not readily available for a position, and that temporary foreign workers are better protected from abuse and exploitation.
The proposed amendments are extensive, but some of the key changes pertinent to employers include the following:
Labour Market Opinions
- Employers will be required to undertake increased recruitment efforts to hire Canadians before hiring foreign workers on Labour Market Opinions (LMOs). The required time span and reach of job advertising requirements will be increased;
- Employers will only be permitted to include proficiency in non-official languages in job requirements in very limited circumstances;
- Employers will be required to work with the Government of Canada to implement a plan to transition to a Canadian work force over time;
- User fees will be implemented for employers applying for work permits through the LMO process.
Employer Compliance Reviews and Conditions on Employers
Employer compliance reviews or audits were implemented in 2011 as a means of ensuring that employers were complying with the conditions set out in LMOs and providing foreign workers with wages, working conditions and job duties substantially the same (STS) as those set out in LMOs, and complying with provincial and federal employment laws.
With the proposed regulatory amendments, employers will be required to comply with increased conditions for maintaining compliance with the TFWP:
- The compliance verification period will be increased from two years to six years, meaning that employers may need to maintain records and documentation to demonstrate STS and compliance for up to six years after hiring the foreign worker;
- Employers may be required to demonstrate that each TFW was provided with wages, working conditions and job duties that are substantially the same as those in job offers;
- Employers will be required to ensure that the employment of a TFW will result in direct job creation or retention of Canadians if that was one of the factors that led to the issuance of an LMO;
- Employers will be required to hire or train Canadian citizens and permanent residents, or make reasonable efforts to do so, if this was one of the factors that led to the issuance of the LMO and work permit;
- In addition to requiring employers to provide specified documents and information, Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development Canada (HRSDC) will also be given the authority to enter and inspect any premises or place where a TFW works, and may ask any relevant questions or inspect relevant documents for the purposes of verifying compliance with the TFWP;
- Information sharing provisions will be added to the regulations to allow CIC and HRSDC to obtain information from provincial and territorial authorities and ministries for the purposes of verifying compliance;
- Employers must make reasonable efforts to provide TFWs with a workplace free from physical, sexual, psychological and financial abuse.
Consequences for Non-Compliance
Employers who are found to be non-compliant with the TFWP already face a potential two-year ban from the program, in addition to being placed on a list of ineligible employers on CIC’s website.
With the proposed amendments, employers will also be prevented from providing offers of employment to Federal Skilled Trades or Federal Skilled Worker applicants applying for permanent residence in Canada.
Please click here for a link to the full Regulatory Impact Analysis Statement and the proposed amended regulations from the Canada Gazette.
For more information on how these changes may affect employers making use of the TFWP, please contact Green and Spiegel, LLP