The Government of Canada has introduced new changes to the Temporary Foreign Worker Program, which will come into effect on April 1, 2011. These changes will give the government greater authority to monitor temporary foreign workers (TFW’s) and their employers and to impose serious penalties on employers who fail to comply. The amendments are part of a growing trend by policy makers to give more emphasis on the temporary foreign worker program to meet Canada’s overall immigration objectives.
These changes are aimed at protecting foreign workers against employer abuse and to ensure employer compliance with the workers’ terms and conditions of employment. It includes a more rigorous assessment of the genuineness of job offers, a two-year prohibition from hiring temporary foreign workers for employers who fail to respect their commitment to foreign workers and a limit on the length of time foreign workers may work in Canada.
Employers hiring Caregivers under the Live-in Caregiver program are also affected and will have to provide additional facilities and services to their employees.
Two year penalty for employers
To hire a TFW under the current process, an employer must satisfy a Service Canada officer that the offer of employment is “genuine” before obtaining a positive Labour Market Opinion (LMO). For an offer to be “genuine” it must meet various requirements including salary standards, the occupational description and the employer’s documented efforts to hire local Canadians.
In addition to existing requirements a more rigorous and far reaching standard is being applied to ensure that examining officers have the necessary tools to determine the “genuineness” of a job offer. Where the officer determines an offer is not “genuine” the employer could be barred from recruiting any TFWs for a period of two years.
Where an employer is found to have breached its commitments to the TFW, all of its work permit applications will be refused for a two-year period. Additionally, the employer’s name will be posted to a list on a public government website and foreign workers would be prohibited from accepting employment with listed employers. Even violations to provincial and federal labour laws can result in penalties for the employer. Under these new regulations, employers will bear responsibility to closely monitor all of its activities pertaining to their TFWs, hired directly or indirectly through a recruiter.
Changes in the terms and conditions of employment through promotions, salary increases or job descriptions must be carefully reviewed with Service Canada before implementation. Reliance on legal counsel will become more paramount for human resource managers.
Criteria for “genuine” of job offers
The government has established additional criteria to determine if a job offer is “genuine”. These criteria include the following:
- Whether the employment is being made by an employer that is actively involved in the field which the job offer is being made;
- Whether the offer is consistent with the employer’s labour needs;
- Whether the employer can reasonably fulfill the terms of the job offer; and
- Whether the employer, or recruiter acting on behalf of an employer, has previously complied with provincial and federal laws regulating employment or recruiting of workers.
Employers who incur a two-year TFW penalty will have all subsequent offers deemed to be “lacking in genuineness” for the duration of the penalty period, regardless of whether the above criteria are met. Prior violations of provincial or federal laws regulating employment (irrespective of whether those violations were connected to a TFW or a local worker) could also result in an officer determining that the job offer lacks genuineness.
The new rules appear far reaching and employers and by extension human resource managers will be required to maintain a close review of their foreign worker portfolios.
TFWs can work for a maximum of four years
The new rules will limit the number of years that a TFW may be authorized to work in Canada. Most foreign workers will be allowed to extend their work permit for a maximum cumulative period of four years. Once this cap is reached workers will be required to wait four years before they can reapply. However, certain categories of foreign workers are exempted from this limitation. These include workers employed in specific fields of significant social, cultural or economic benefits to Canada and TFW’s working under specific international agreements like NAFTA or GATS.
As a result of this new cap employers will be encouraged to initiate the process of applying for permanent residence on behalf of their foreign workers well in advance of the four year limitation.
Live-in Caregiver’s work permits
Under the new regulations, a number of regulatory and administrative changes will affect the Live-in Caregiver Program.
Employers will be required to include mandatory clauses in their employment contracts that address employer paid benefits, accommodations, duties, and hours of work, wages, holiday and sick leave entitlements and conditions for termination.
Caregivers will benefit from additional facilities that must be paid by their employers. This will include transportation costs from their country of residence to Canada, private medical insurance prior to provincial health coverage, workplace safety insurance and recruitment fees associated with their hiring.
Caregivers must continue to accumulate two years of work experience to become eligible for Permanent Residence (PR). However, under the new rules they will have four years to meet this requirement instead of the current three years. They may also avail their overtime working hours to apply for PR earlier. They will become eligible to apply for PR after working for two years at regular full-time rates or after accumulating 3,900 hours over a minimum of 22 months with a maximum of 390 overtime hours.
Implications of new amendments
In the post recession, employers face increasing challenges to meet labour force hiring and retention objectives. These challenges will be compounded by a regulatory environment in the immigration industry which is complex. Human resource managers who are dependent on the global labour market must become more aware of this new landscape and work with their corporate hiring authorities and legal counsel to develop corporate policies that will ensure compliance in a manner that maintains cost effectiveness and competitiveness for top talent.
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