Canada's Temporary Foreign Worker Program Has Changed
February 21, 2014
Posted by: Kit Mazurak
Canada’s Temporary Foreign Worker Program Has Changed
by Kevin Wilson, Q.C. Monday February 10, 2014
Effective December 31, 2013, amendments to the Immigration and Refugee Protection Regulations (IRPR) came into force which impact the Temporary Foreign Worker Program (TFWP) and the use of Labour Market Opinions (LMOs). As part of these amendments, the power and administration of the TFWP has been transferred from Human Resources and Skills Development Canada (HRSDC) to Employment and Social Development Canada (ESDC).
All LMOs issued on or after December 31, 2013 are subject to these amendments.
1. New Conditions Imposed on Employers:
Employers will be required to:
-Provide the same occupation as stated in the employment offer and confirmed in the LMO. Employers can no longer provide an occupation that is substantially the same. Other employment conditions provided, such as wage and hours, can still be substantially the same, however, any change of these conditions must be more favorable.
-Retain any document that relates to compliance with the conditions set out in IRPR and the LMO for a period of 6 years. For this same period, the employer must be able to demonstrate that any information provided in the context of an LMO application was accurate.
-Hire or train, or make reasonable efforts to hire or train, Canadians or permanent residents, if that was one of the factors that led to the issuance of the work permit.
2. Increased Authority to Conduct Employer Compliance Reviews Pre-LMO
ESDC will have an increased authority to review an employer’s compliance for the six years prior to the receipt of an LMO application.
3. Greater Inspection Powers Post-LMO
ESDC will have the authority to conduct inspections to verify an employer’s compliance with the conditions of IRPR and the LMO for a period of six years, beginning on the first day of the period of employment for which the work permit is issued to the foreign worker.
During an inspection, employers will be required to demonstrate that they are compliant with the conditions set out in IRPR and the LMO. In order to verify compliance with the conditions, ESDC will have the authority to:
-require employers to provide documents that relate to compliance with those conditions;
-conduct on-site inspections without a warrant (private dwellings excluded and in the majority of cases, advance notice will be given to employers); and
-interview foreign workers or Canadian employees, by consent.
A finding of non-compliance can result in the following:
-be deemed ineligible to hire foreign workers for two years, and have their name, address and period of ineligibility published on a public ban list;
-be issued negative LMOs on any pending LMO applications; and/or
-may have previously-issued LMOs revoked.
Employers who utilize the TFWP and LMOS should take steps to understand these amendments and review their current foreign worker polices to ensure they are maintaining compliance with IRPR and their LMOs.