January 24, 2019 – British Columbia has recently announced plans to boost protection of its nearly 50,000 temporary foreign workers in the province.
The province passed Bill 48, the BC Temporary Foreign Worker Protection Act, which will see the creation of licensing requirements and registries for recruiters of foreign workers and employers.
The majority of temporary foreign workers work in B.C. through a number of federal programs, including the temporary foreign worker program (TFWP), the seasonal agricultural worker program (SAWP) and the international mobility program (IMP). In 2018, the federal government issued more than 50,000 work permits to foreign nationals destined for B.C.
Industries in agriculture, forestry, fishing and hunting account for nearly half of the temporary foreign workers in British Columbia.
Through the TFWP, employers bring in Temporary Foreign Workers to Canada to hold jobs for which they cannot find Canadian citizens or permanent residents.
A major part of the process is obtaining a positive Labour Market Impact Assessment (LMIA), which includes stringent requirements to advertise the position in multiple mediums.
Bill 48 received royal assessment in November 2018. Regulations are expected early in 2019 to bring the act into force.
Two registries will be created for:
- Employment Recruiters, and
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The new law will will require employment recruiters and agencies to hold licences, while employers recruiting foreign workers, must hold provincial government registration certificates.
Registration will be online and free, with both licences and certificates valid for three years.
The act also provides for an expansion of enforcement tools available to BC provincial officials.
It expressly prohibits certain practices, such as misrepresenting employment opportunities, threatening deportation without cause, and retaining passports.
Under the act, recruiters must also only charge employers for their services. Employers are also prohibited from recovering recruiting expenses from workers via the reduction of wages or benefits.
Tougher penalties for those who violate the act include fines of up to $50,000 for individual employers, as well as a year in jail, while companies face fines of up to $100,000.
B.C. joins a growing list of provinces (Nova Scotia, Ontario, Manitoba, Saskatchewan, Alberta), which regulate foreign worker recruitment which expressly prohibits charging foreign workers a fee to find a job.
Federal Government Oversight
British Columbia’s move to increase protection of TFWs comes following changes made at the federal level, where the TFWP comes under the jurisdiction of Employment and Social Development Canada.
Canada’s auditor-general, Michael Ferguson, criticized the federal government in a 2017 report that found not enough was being done to ensure employers across Canada, respect strict TFWP rules.
Key Conclusions of Ferguson’s Report
- ESDC did not do enough to ensure that employers hired temporary foreign workers only as a last resort.
- ESDC did not use all existing labour market information to determine whether Canadians could fill available positions.
- ESDC made limited use of its expanded powers to identify employers that did not comply with program requirements.
- ESDC did not measure the results of the program and its impact on the labour market.
The Federal government commissioned a parliamentary report to review the program, which came up with 21 recommendations, many of them overlapping with Ferguson’s criticisms.
As a result, several changes were made to the TFWP program.
Key Temporary Foreign Worker Program Changes
- Abolishment of the cumulative duration rule that limited a worker under TFWP to remain in Canada for four years, after which they could not return under the program for another four years.
- 10 per cent workforce cap for employers who began using the TFWP after June 20, 2014. Those who have been using the program prior, were capped at 20 per cent.
- Employers required to do more to hire Canadians. Special emphasis focuses on youth, new permanent residents, women, indigenous people and the disabled.
- Users of TFWP to help government transition Canadians into the workforce through more use of outreach and training programs.
- Elimination of Labour Market Impact Assessment fee for:
- Families seeking caregivers for persons with high medical needs.
- Families earning less than $150,000 seeking childcare.
- Increased compliance inspections of firms employing temporary workers.
- Making sure workers know their rights and protections on arrival.
- Improved communication with provinces and territories.
- Establishment of the Global Talent Stream, allowing work permits for high-skilled workers to be processing inside two weeks.
|1.||209.2(1)(b)(i)||Be able to demonstrate that any information provided in respect of a work permit application was accurate during a period of six years, beginning on the first day of the foreign national’s employment||Type A|
|2.||209.2(1)(b)(ii) and 209.3(1)(c)(ii)||Retain any document that relates to compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment||Type A|
|3.||209.3(1)(a)(iii)(C)||For employers of a live-in caregiver: have sufficient financial resources to pay wages that were offered||Type A|
|4.||209.3(1)(c)(i)||Be able to demonstrate that any information provided for the assessment was accurate during a period of six years, beginning on the first day of the foreign national’s employment||Type A|
|5.||209.4(1)(a)||Report at any time and place specified to answer questions and provide documents||Type A|
|6.||209.4(1)(b)||Provide required documents||Type A|
|7.||209.4(1)(c)||Attend any inspection, unless the employer was not notified, give all reasonable assistance to the person conducting the inspection and provide that person with any required document or information||Type A|
|8.||209.2(1)(a)(ii) and 209.3(1)(a)(ii)||Comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the foreign national works||Type B|
|9.||209.2(1)(a)(iii) and 209.3(1)(a)(iv)||Provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment||Type B|
|10.||209.3(1)(a)(iii)(A)||For employers of a live-in caregiver: ensure that foreign national resides in a private household in Canada and provides child care, senior home support care or care of a disabled person in that household without supervision||Type B|
|11.||209.3(1)(b)(i)||Ensure that the employment of the foreign national will result in direct job creation or retention for Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit||Type B|
|12.||209.3(1)(b)(ii)||Ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit||Type B|
|13.||209.3(1)(b)(iii)||Hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit||Type B|
|14.||209.3(1)(b)(iv)||Make reasonable efforts to hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit||Type B|
|15.||209.2(1)(a)(i) and 209.3(1)(a)(i)||Be actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as a live-in caregiver||Type C|
|16.||209.3(1)(a)(iii)(B)||For employers of a live-in caregiver: provide the foreign national with adequate furnished private accommodation in the household||Type C|
|17.||209.2(1)(a)(iv) and 209.3(1)(a)(v)||Make reasonable efforts to provide a workplace that is free of abuse within the meaning of paragraph 72.1(7)(a) of these Regulations||Type C|
|Item||Total Number of Points||Type A Violation||Type B Violation||Type C Violation|
|Individual or Small Business ($)||Large Business ($)||Individual or Small Business ($)||Large Business ($)||Individual or Small Business ($)||Large Business ($)|
|1.||0 or 1||none||none||none||none||none||none|
|9.||9 or 10||30,000||45,000||50,000||60,000||60,000||70,000|
|10.||11 or 12||40,000||60,000||60,000||70,000||70,000||80,000|
|11.||13 or 14||50,000||70,000||70,000||80,000||80,000||90,000|
|12.||15 or more||100,000||100,000||100,000||100,000||100,000||100,000|
|1.||For Type A and Type B violations — first violation||1|
|2.||For Type A violations — second or subsequent violation||2|
|3.||For Type B violations — second violation||2|
|4.||For Type C violations — first violation||2|
|5.||For Type B violations — third or subsequent violation||3|
|6||For Type C violations — second violation||3|
|7.||For Type C violations — third or subsequent violation||4|
|1.||The employer derived competitive or economic benefit from the violation||0 to 6|
|2.||The violation involved abuse of a foreign national (physical, psychological, sexual or financial)||0 to 10|
|3.||The violation negatively affected the Canadian labour market or the Canadian economy||0 to 6|
|4.||The employer did not make reasonable efforts to minimize or remediate the effects of the violation||0 to 3|
|5.||The employer did not make reasonable efforts to prevent recurrence of the violation||0 to 3|
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