As we reported earlier, Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC) have stepped up enforcement in response to increasing concerns about the Temporary Foreign Worker Program (TFWP).
At least three employers (in British Columbia, Ontario and Newfoundland) have had their Labour Market Opinions (LMOs) revoked or suspended and been placed on what some are calling the “the black list". Audits of employers are becoming more common (on both a random and complaints-made basis). And complaints about misuse of the TFWP are front page news in British Columbia, Ontario and elsewhere across the country.
Employers’ Obligations for Temporary Foreign Workers
It is a good time for employers to recall their obligations under the TFWP and ensure they have the proper systems in place. The employers’ obligations include:
- Employers must retain documents to verify compliance with the Immigration and Refugee Protection Act and the terms and conditions of the LMO for six years. This documentation includeS the job posting and responses, job description, employment agreement, proof of compliance with the terms of employment (compensation, benefits, etc), payroll records, records of hours of work, and other such records.
- Employers must provide a safe workplace.
- Employers must provide training, if promised in the LMO application.
- Employers must continue to monitor the Canadian labour market. There is no guidance on how to do this, but the Ministerial Instruction of November 26, 2013 states that an LMO may be revoked if new information becomes available after the LMO is issued that indicates the TFW is having or will have a significant, negative effect on the labour market of Canada.
“Substantially the Same” Terms and Conditions
In addition, an employer is required to provide “substantially the same” terms and conditions of employment as set out in the application for a LMO, the employment contract submitted with the application (where applicable), and the LMO. As a result, an employer may have little ability to adjust scheduling of TFWs to meet changing circumstances.
The obligation to provide “substantially the same” terms and conditions contemplates some, albeit limited, flexibility. There are also circumstances where variances are justified. They include:
- a change in federal or provincial law;
- a change in a collective agreement;
- changes made even-handedly for Canadian workers and TFWs in response to a “dramatic change in economic conditions that directly affects the business of the employer”;
- a good faith error that is corrected or compensated for, to the extent possible;
- an unintentional accounting or administrative error, that is corrected or compensated for to the extent possible; or
- similar circumstances.
But employers should keep two points in mind:
- The “economic circumstances” justification applies only where there is a “dramatic change” that directly affects the employer’s business. A general slowdown or an event that temporarily affects business will not justify providing less than the promised wage or fewer hours to a TFW. This may put the employer in the difficult position of either continuing to provide full shifts to TFWs while giving Canadians fewer hours (and thereby negatively impacting the Canadian labour market), or reducing wages or shifts for all workers (Canadians and TFWs) and thereby run afoul of the obligation to provide substantially the same terms and conditions to the TFW.
- A TFW cannot consent to a change of terms and conditions. Consent is not an accepted justification. Consent was excluded to protect vulnerable TFWs who may not have (or not believe they have) the right to refuse a proposed change to the terms or conditions of employment. However, the exclusion of consent from the list of acceptable justifications does not only apply to workers who are vulnerable. ESDC cannot consider proof of consent as a justification for a failure to provide “substantially the same” terms of employment, even where there is no power imbalance and it is clear the TFW freely supports the variation.
Advice for Employers using the TFWP
So where does that leave employers using the TFWP? If you want to continue to be able to use the program, proceed very carefully.