The Canadian Minister of Citizenship, Immigration and Multiculturalism has proposed amendments to the Immigration and Refugee Protections Regulations (“Regulations”) that, if adopted, would significantly impact Canada’s Temporary Foreign Worker Program. The amendments are considerable and are in response to an increase in the total number of temporary foreign workers entering Canada combined with rising concerns for their fair treatment.
Currently, no provisions exist in the Regulations to hold employers or third-party agents accountable for their actions regarding the treatment of temporary foreign workers (eg. where employers or third party agents pay less than that promised to the foreign worker or charge fees to the foreign worker).
The objectives of these proposed regulatory amendments are to: minimize the potential for exploitation of temporary foreign workers by employers and third-party agents; implement stricter monitoring mechanisms; and underline that employment facilitated through the temporary foreign worker program is meant to be temporary in nature. To this end, the proposed Regulations would:
- Establish a set of factors to guide the assessment of the genuineness of an employer’s offer of employment to a temporary foreign worker as follows:
(i) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
(ii) whether the offer is consistent with the reasonable employment needs of the employer;
(iii) whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
(iv) the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work;
- Make an employer ineligible to access the temporary foreign worker program for a period of two years where the employer has been found to have previously provided significantly lower wages, working conditions or an occupation different than what was offered to a temporary foreign worker;
- Provide for the publication of a list with the names, addresses and period of ineligibility of employers who are not eligible to access the temporary foreign worker program on the Citizenship and Immigration Canada’s external website, in order to inform foreign nationals as to which employers are not eligible to hire temporary foreign workers;
- Establish a limit of four years of work for temporary foreign workers, followed by a period of at least six years in which they would not be authorized to work in Canada, with exceptions for certain workers (eg. Intra-Company Transferees, NAFTA Professionals); and
- Introduce a requirement that Human Resources and Skills Development Canada’s Labour Market Opinion (“LMO”) indicate a period of time during which the opinion is in effect.
Under the new regime, an assessment of the genuineness of the job offer would be carried out regardless of whether an LMO is required for the position. Accordingly, Work Permit applications involving LMO-exempt cases (such as Intra-Company Transferees and NAFTA Professionals) will be subject to this new assessment process.
While waiting for the proposed amendments to the Regulations to be implemented, there are a few things Canadian employers can do to prepare:
- Maintain comprehensive records on all temporary foreign workers (eg. LMOs, Work Permit Applications, job descriptions, employment contracts, wage outlines) to be able to demonstrate past compliance;
- Consider encouraging important or long-term temporary foreign workers to apply for Permanent Resident status; and
- Plan future staffing requirements to take into account the impact of the proposed new four year limit and the six year minimum noted above.