( Disponible en anglais seulement )
Canada has joined the ranks of other countries such as the UK, the US, and Australia, in imposing compliance measures on employers who bring foreign workers to Canada. Effective April 1, 2011, employers must demonstrate compliance with new regulations for Canada’s temporary foreign worker program. These changes have been brought in to ensure the fair treatment of temporary foreign workers. Charities and not-for-profits that employ foreign workers should familiarize themselves with these changes. These new measures provide that employers must demonstrate the following:
- that a job offer is genuine;
- that the wages, working conditions, and job description is substantially the same as the terms and conditions of the job offer; and
- that for many workers, there is\ now a maximum cumulative period of four years that a worker can be in Canada.
As a result of these new regulatory provisions, workers in the foreign worker program will be assessed by all parties in the foreign worker program, including Human Resources and Skills Development Canada – Service Canada (HRSDC-SC), Citizenship and Immigration Canada (CIC), and Canada Border Services Agency (CBSA). HRSDC-SC assesses an employer’s application for a Labour Market Opinion (LMO) to determine whether there are persons within the Canadian labour market available to fill this position. An LMO will only be issued in those circumstances where the employer can demonstrate a shortage of suitably qualified Canadians. CIC assesses work permit applications where HRSDC-SC has issued a positive LMO, or in those instances where an applicant is exempt from the need for an LMO. When applicants arrive to enter Canada, they are once again assessed by CBSA agents, who will, again, apply the same criteria. Accordingly, employers and foreign workers will have their work arrangements assessed at least on two occasions, by CIC or CBSA, and in many cases, by all three parties.
At any point, a determination can be made with respect to the genuineness of the job offer, and whether the duties, wages, and working conditions in employment in an occupation are substantially the same as those items set out in the employer’s offer of employment to this particular foreign national, or any foreign national within a two-year period. And lastly, they will assess whether or not a specific worker has surpassed the four-year cumulative duration for working in Canada.
In assessing LMO requests to HRSDC-SC, or for all LMO-exempt work permit applications processed by CIC, a determination will be made as to whether or not an offer of employment is genuine. There are four factors upon which genuineness is assessed:
- that the job offer is made by an employer who is “actively engaged” in the business;
- that the job offer is consistent with the reasonable employment needs of the employer;
- that the employer is reasonably able to fulfill the terms and conditions of the job offer; and
- that the employer or the authorized recruiter has demonstrated past compliance with all Federal, or Provincial or Territorial laws concerning employment or recruitment in the Province or Territory that the individual will be working in.
Substantially the Same
In assessing an LMO or work permit application for a particular applicant, all three government departments are able to look back retroactively for a two-year period to all work permits that have been issued to that particular employer to determine whether, in all cases, the wages, working conditions, and employment in a particular occupation were substantially the same as those set out in the offer of employment for those foreign workers. It is not merely the individual application that is being considered at the time, but all applications within a two-year period of a particular employer that may be assessed. In those circumstances where employers are not able to demonstrate that wages, working conditions, and occupations are not substantially the same, they must demonstrate that there has been a reasonable justification for the failure to be compliant.
Reasonable justification includes:
- A change in Federal/Provincial law or change to a collective agreement;
- Changes an employer had to make in response to a dramatic economic change that was not disproportionately directed to foreign workers;
- A good-faith employer error in interpreting obligations for wages, working conditions, or occupation, and demonstration that the employer has made sufficient efforts to rectify any such error;
- An administrative accounting error by the employer, and the demonstration that the employer has made sufficient efforts to rectify any such error; and
- Circumstances similar to any of those set out above.
As an employer, you will need to ensure that you have met the terms of your offer of employment and that these are consistent with Federal and Provincial or Territorial employment legislation. If you work with recruiters, you will need to ensure that they comply with these requirements as you will be held accountable for their actions.
Where it is determined that an employer has not honoured their commitment to workers that are substantially the same as their contractual obligations, and the employer is further unable to demonstrate that such failure is justified, in accordance with the regulations, the particular application will be denied and an employer will be found to be ineligible to make further applications for foreign workers for a period of two years. Furthermore, ineligible employers are then identified on the CIC Temporary Foreign Worker employer eligibility website.
Four-Year Cumulative Duration
The regulations further provide for a four-year cumulative limit on the time a foreign worker can spend working in Canada. There are numerous exemptions to this four-year limitation.
Skilled workers who are not exempt and who have met the four-year cumulative limit are ineligible to reapply until they have been outside of Canada for a further 48 months. You will want to be certain which of your foreign workers are subject to the four year ban. The responsibility of demonstrating that the employee has not yet met the four-year limit on actual time spent working in Canada (regardless of the length of the validity of the work permits) falls upon the employee. Employers will want to encourage employees to keep vigilant records of their travel, boarding passes, and exits and entries in order to clearly demonstrate their actual time spent working in Canada. Employers are also urged to consider options for permanent residence for key personnel to avoid meeting the 48-month limit.
Given the serious ramifications to an employer of a potential two-year ban from employing foreign workers and the potential for being blacklisted, employers will want to ensure that they are compliant with these new regulations. Employers will need to ensure that they do that which they have said they will do. Deviations from the offer of employment or employment contract may result in a determination that the employer has not provided wages, working conditions, and job duties which are substantially the same as set out in the offer of employment or the employer contract. It is recommended that employers set up internal audit procedures with their human resources department to ensure consistency with their foreign workers and with the terms of employment that have been offered to foreign workers. The onus of demonstrating compliance, where requested, falls upon the employer.
Miller Thomson is pleased to be able to assist employers, human resource managers, and foreign workers to meet the new compliance provisions of Canada’s temporary foreign worker program.