Last Updated on août 11, 2015
The hiring of a temporary foreign worker begins with employers requesting Human Resources and Skills Development Canada (HRSDC) for a positive « labour market opinion » (LMO). Without an approved LMO, Citizenship and Immigration Canada cannot issue a work permit.
The LMO assessment includes verifying whether the foreign worker fills a labour shortage, whether the employer has advertised the job for a minimum of 14 days on the national Job Bank, and whether wages offered are commensurate with what Canadians or permanent immigrants are earning for similar work.
In addition to this, for low-skilled foreign workers – for jobs that require no more than a high school diploma or up to two years of on-the-job training – employers must sign a contract with the worker outlining wages and working conditions. The contract must also indicate that the employer will pay for travel costs from the home country and back, will not recoup recruitment costs from the worker, will help the worker find suitable and affordable housing, and will provide medical coverage until the worker is eligible for provincial health coverage. Taxes are deducted from worker pay cheques. But they’re not eligible for welfare if laid off. They can receive unemployment insurance, but in practice, few who apply do. And in Alberta and Ontario, seasonal agricultural workers are barred from joining unions.
Under 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.
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.
Interested employers: Kindly contact us here to receive further information.
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