Foreign workers can be an important source of labour supply for Canadian employers, permitting them to fill shortages in a variety of professions and industries. In an attempt to better protect vulnerable foreign workers from what the government has called unscrupulous employers and agents, the Canadian government will introduce a new regime for Canadian temporary work permits on April 1, 2011. The new regime has been described as one where "good employers replace bad employers". It will govern employers hiring temporary foreign workers in Canada - both future applications and renewals of current work permits.
The key changes to the new regime are as follows:
- A set of factors will be introduced to better assess the genuineness of employment offers made to foreign workers. The factors will cover all offers to foreign workers, whether subject or not to the Labour market opinion process. If the offer is determined to not be genuine, the work permit application will be declined. These factors include whether:
- the employer is actively engaged in the business in respect of which the job offer is made to a foreign national;
- the job offer is consistent with the reasonable employment needs of the employer;
- the employer is reasonably able to fulfil the terms of the offer; and
- the employer (or the recruiter who acted on its behalf) has complied with the federal and provincial employment and recruiting laws.
- Employers will be expected to provide wages, working conditions and functions that are "substantially the same" as those initially offered to other foreign nationals hired in the preceding two years.
- Employers who, without reasonable justification, have not complied with the terms of a former offer, will be added to a list on Citizenship and Immigration Canada's website. They will also not be eligible to hire under the Foreign Worker Program for two years. In this case, the employer would not only receive no new permits, the employer would also be prevented from renewing permits that expire within those two years.
- As a reminder that the Temporary Foreign Worker Program is designed to address temporary labour shortages, a limit of a cumulative duration of four years of work in Canada will be introduced. After four years (excluding work prior to April 1, 2011), a foreign worker will have to wait four years before becoming eligible for a work permit again. Exemptions to the maximum four-year rule will apply to some permits such as those issued under international agreements (such as NAFTA and Free Trade Agreements with Chile and Peru) or under the "significant benefits for Canada" provision, including intra-company transferees.
Implications for Employers
If having access to foreign workers is important to your business, you cannot afford to ignore these new requirements. A single violation in one business location may cause the two-year ban to apply to all of an employer's locations, right across the country.
How the new rules will be implemented is still being developed, so stay tuned. In future editions we will provide you with the details of the administrative directives, still to be published by the Immigration Department.