Introduction

The Government of Canada recently announced various reforms introduced to the Temporary Foreign Worker Program (TFWP). These reforms will help in ensuring that qualified Canadians and permanent residents get the first shot at available jobs.

In 2013, the Government had introduced various changes in the Temporary Foreign Worker Program (TFWP) aimed at:

• Strengthening the labour market impact assessment process
• Imposing several new conditions on the employers
• Incorporating inspections for helping the authorities verify employer compliance and imposing the appropriate consequences for any instances of non-compliance

On June 20, 2014, the Government re-organised the Temporary Foreign Worker Program (TFWP) into two distinct programs:

• The Temporary Foreign Worker Program (TFWP)
• This refers to the streams wherein foreign workers enter Canada upon the request of employers, after receiving the approval through a new Labour Market Impact Assessment (LMIA)
• The salient features of streams that are a part of the Temporary Foreign Worker Program (TFWP) include:
• A more comprehensive and rigorous Labour Market Impact Assessment (LMIA) process
• A maximum cap on the proportion of low-wage temporary foreign workers (TFWs) that a business can employ and,
• The requirement of a transition plan of employers of temporary foreign workers (TFWs) in high-wage occupations that will highlight the measures taken by the employers to reduce their dependency on foreign workers
• The International Mobility Program (IMP)
• This incorporates streams where foreign nationals help in advancing Canada’s broad economic and cultural national interest, rather than filling various job vacancies
• Therefore, foreign nationals do not remain confined to a Labour Market Impact Assessment (LMIA) and,

As a result of these amendments, Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC) are enhancing the compliance framework. This would enable them to:

• Monitor compliance levels across the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP)
• Deter and penalise (where applicable) employers found violating the requirements and conditions of these programs

Overview

The Temporary Foreign Worker Program (TFWP) enabled employers to bring in foreign workers to Canada to fill jobs for which the employers could not find qualified Canadians and permanent residents.

In the past, the Temporary Foreign Worker Program (TFWP) included the International Mobility Program (IMP). The CIC and Employment and Social Development Canada (ESDC) jointly managed and administered these programs based on the:

• Immigration and Refugee Protection Act (IRPA) and,
• Immigration and Refugee Protection Regulations (IRPR)

The Canada Border Services Agency (CBSA) supports the CIC and Employment and Social Development Canada (ESDC) in administering the Temporary Foreign Worker Program (TFWP). Its responsibilities include:

• Assessing and issuing work permits at Canadian ports of entry
• Enforcing the requirements specified under the Immigration and Refugee Protection Act (IRPA) and,
• Making the final decision on who can enter Canada at ports of entry

With the splitting of the Temporary Foreign Worker Program (TFWP):

• The CIC and Employment and Social Development Canada (ESDC) would be jointly responsible for the Temporary Foreign Worker Program (TFWP) and,
• The CIC would be solely responsible for the International Mobility Program (IMP)

By splitting the Temporary Foreign Worker Program (TFWP), the Government wants to ensure that employers do not abuse the Program any longer. Departments can ban non-compliant employers for two years currently. In addition, the reforms of June 20, 2014, also enable the Department to issue:

• Bans of longer and shorter durations as well as,
• Administrative Monetary Penalties (AMPs)

The Background

Officers would inspect one in every four employers each year to verify the levels of employer compliance with the conditions prescribed in the Temporary Foreign Worker Program (TFWP). This could take place:

• During the employment of a foreign national or,
• Upon the termination of the employment of the foreign national

These inspections could include:

• On-site visits and,
• Interviews with foreign nationals and other employees

In case the officers found an employer guilty of non-compliance, they would:

• Ban the employer from using the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) for a period of two years and,
• Place the name of the employer on a public list

However, these penalties might not be sufficient for ensuring that employers do not reap financial benefits arising from their non-compliance. Moreover, the penalties might be inadequate or extreme, depending on the circumstances of the associated case. Therefore, the authorities have formulated a new Temporary Foreign Worker Program (TFWP) / International Mobility Program (IMP) compliance framework. This comprises various educational and preventative compliance activities. The figure below highlights the proposed compliance framework.

 

The move to introduce Administrative Monetary Penalties (AMPs) will provide officers with a range of measures to respond to a range of non-compliance. In particular, it would be effective in cases where a ban would be too severe or too ineffective.

Similarly, expanding the ranges of bans from two years to bans of one year, five years and ten years, would also be worthwhile. It would enable officers to penalise employers in proportion to the seriousness of their violation. For example, officers could award longer bans for repeated offenders to prevent them from hiring foreign nationals for longer stretches of time.

To implement these compliance-related measures, the authorities would publish policies and guidelines. These would help officers in understanding the use of each type of sanction.

The Enhanced Compliance Framework

In many cases, the provisions of the Immigration and Refugee Protection Regulations (IRPR) justify the acts of non-compliance with the:

• Temporary Foreign Worker Program (TFWP) and,
• International Mobility Program (IMP)

This is especially the case in situations where the officers come across acts of non-compliance stemming from:

• The changes to federal or provincial laws
• The changes to collective agreements
• Errors made in good faith
• Unintentional accounting or administrative errors
• Errors stemming from a force majeure (e.g. fires, floods etc.)

Similarly, officers could not award penalties to employers found guilty of non-compliance, who take the necessary corrective action.

The authorities would now introduce regulatory amendments to the existing justifications. This would enable the officers to impose the necessary consequences of non-compliance on employers, regardless of whether they take corrective action or not. However, officers would consider the employer’s response to the violation, when determining the:

• Administrative Monetary Penalty (AMP) amount and / or,
• Length of the ban

This would give the employers an incentive for taking the necessary corrective action.

The authorities will not make any changes to the following justifications:

• The changes to federal or provincial laws
• The changes to collective agreements
• The changes in economic conditions and,
• Errors stemming from a force majeure (e.g. fires, floods etc.)

Therefore, in situations where a justification is applicable, the officers would not issue any Administrative Monetary Penalties (AMPs) or bans to non-compliant employers.

The Consequences of Non-Compliance

Officers would impose the consequences of non-compliance on employers found violating the terms mention in Sections 209.2, 209.3 and 209.4 of the Immigration and Refugee Protection Regulations (IRPR). They would do this only when:

• They complete an inspection and,
• Find the employer to be non-compliant with one of the conditions listed in the sections of the Immigration and Refugee Protection Regulations (IRPR) above
• The Proposed Administrative Monetary Penalties (AMPs) system
• Administrative Monetary Penalties (AMPs) are financial penalties imposed on account of a contravention of various legislative or regulatory requirements
• They represent administrative sanctions as opposed to criminal sanctions
• They are useful in situations where employers violate the terms of the programs to accrue various financial benefits
• The Minister of Employment and Social Development and the Minister of Citizenship and Immigration intend to propose amendments to the Immigration and Refugee Protection Regulations (IRPR) by establishing:
• The situations in which officers could apply Administrative Monetary Penalties (AMPs) to employers
• The methods by which officers could determine the amount of the Administrative Monetary Penalty (AMP) and,
• The process for the administrative review of decisions
• Under the proposed changes:
• The minimum amount for an Administrative Monetary Penalty (AMP) would be $500
• The maximum amount payable for a single violation would be $100,000
• Penalty amounts would vary based on:
• The status of the employer e.g. an individual, a small business, a large business or a corporation
• The seriousness of the violation and,
• The employer’s compliance history
• Officers would calculate the penalty amounts separately, before adding them together in case:
• Employers are found to be non-compliant with several conditions and,
• The violations affect more than one foreign national
• The authorities would publish the names of all employers found to be non-compliant and issued an Administrative Monetary Penalty (AMP)
• The Proposed Length of Bans
• Bans are administrative sanctions aimed at preventing employers from hiring foreign workers for a specified duration under the:
• Temporary Foreign Worker Program (TFWP) and,
• International Mobility Program (IMP)
• Bans aim to promote compliance levels as well as to protection the Canadian labour market and foreign nationals working in Canada by denying non-compliant employers from hiring foreign workers
• Under the proposed amendments, the CIC and Employment and Social Development Canada (ESDC) propose:
• The introduction of bans for one, five and ten years – in addition to the existing two-year ban
• The introduction of a permanent ban (where appropriate)
• This would enable officers to impose consequences of non-compliance in proportion to the gravity of the violation
• Officers would impose bans on employers found to be non-compliant with conditions, for which the officers conducted inspections
• Sections 209.2, 209.3 and 209.4 of the Immigration and Refugee Protection Regulations (IRPR) contain a list of conditions that employers need to adhere to
• The length of the bans would vary based on:
• The type of violation found,
• The seriousness of the violation and,
• The employer’s compliance history
• Officers would calculate the durations of bans separately, before imposing the longest resulting ban in case:
• Employers are found to be non-compliant with several conditions and,
• The violations affect more than one foreign national
• The authorities would publish the names of all employers found to be non-compliant and issued a ban from the two program 
• The Proposals Concerning the Violations
• The authorities propose to subject the violation of all conditions under which officers could impose Administrative Monetary Penalties (AMPs) or bans
• These violations include conditions mentioned in Sections 209.2, 209.3 and 209.4 of the Immigration and Refugee Protection Regulations (IRPR) relating to:
• The genuineness of the job offer
• The employment of a live-in caregiver
• The wages, occupation and working conditions
• The labour market impact
• The reasonable efforts taken by the employer for providing a workplace free from abuse
• The reporting and document retention mechanisms and,
• The cooperation shown by the employer during inspections
• Under the proposed amendments, the officers would classify violations into three categories, based on the risks that breaching the condition could have adverse effects on the labour market or on foreign nationals
• Type A category lists violations that are less serious in nature, as opposed to Type C category, which lists the most serious violations
• Refer to the table given below for more details

 

 

• The Process for Determining the Administrative Monetary Penalty (AMP) Amounts and the Lengths of Bans
• The officers would adjust the Administrative Monetary Penalty (AMP) amount or the duration of the ban, according to the impact of the violation
• Under the proposed amendments, the officers would adjust penalties according to:
• The type of violation found,
• The severity of the violation and,
• The employer’s compliance history over the previous 10 years, concerning the violations of the conditions specified under:
• Temporary Foreign Worker Program (TFWP) and,
• International Mobility Program (IMP)
• The status of the employer e.g. an individual, a small business, a large business or a corporation (only applicable for determining the Administrative Monetary Penalty (AMP) Amount)
• The officers would evaluate these variables and assign points based on the two tables given below
• The total points would enable the officers to determine the final Administrative Monetary Penalty (AMP) amount or the duration of the ban

The Table for Assigning Points based on the Employer’s Compliance History 

S. No.	Criteria	Points
1.	The violation is a first offence (for Type A and Type B violations)	+1
2.	The violation is not a first offence (for Type A and Type B violations)	+2
3.	For Type C violations	+2

 

The Table for Assigning Points based on the Severity of the Violation 

S. No.	Criteria	Points
1.	The employer derived competitive or economic benefits	+1 to +3
2.	The violation involved significant financial harm to a foreign national	+1 to +4
3.	The violation involved abuse of a foreign national (including physical or psychological harm)	+1 to +6
4.	The violation impacted the Canadian labour market negatively	+1 to +6
5.	The violation involved a deliberate attempt to mislead through providing inaccurate information and would have affected the decision to issue a Labour Market Impact Assessment (LMIA) or work permit [for the conditions demonstrating Labour Market Impact Assessment (LMIA) accuracy {Section 209.3 (1) (c) (i)} and work permit accuracy {Section 209.2 (1) (b) (i)}]	+6
6.	The employer did not take the reasonable efforts needed for mitigating or reversing the impact of the violation (wherever possible – unless it is possible to mitigate or reverse the impact)	+2
7.	The employer has not taken adequate steps for preventing the recurrence of the violation	+2
8.	Other factor (to be listed in the Notice of Violation)	+1 to +6

 

The authorities would provide guidance documents. These documents would elaborate each criterion and provide detailed instructions and example scenarios, for helping program officers make the right determinations.

The officers would add the total number of points for determining the final Administrative Monetary Penalty (AMP) amount or the duration of the ban, as shown in the table below:

	Type A		Type B		Type C
Points	Individual or Small Business	Large Corporation	Individual or Small Business	Large Corporation	Individual or Small Business	Large Corporation
1	$500 No ban	$750 No ban	$750 No ban	$1,000 No ban	NA (All Type C violations would carry two points)
2	$750 No ban	$1,000 No ban	$1,250 No ban	$2,000 No ban	$2,500 No ban	$4,000 No ban
3	$1,000 No ban	$2,000 No ban	$10,000 No ban	$20,000 No ban	$25,000 No ban	$50,000 No ban
4	$5,000 No ban	$10,000 No ban	$20,000 No ban	$35,000 No ban	$35,000 No ban	$60,000 No ban
5	$10,000 No ban	$20,000 No ban	$35,000 No ban	$50,000 No ban	$45,000 1-year ban	$70,000 1-year ban
6	$15,000 No ban	$30,000 No ban	$50,000 1-year ban	$65,000 1-year ban	$60,000 2-year ban	$80,000 2-year ban
7	$20,000 1 or 2-year ban	$40,000 1 or 2-year ban	$65,000 2-year ban	$80,000 2-year ban	$80,000 5-year ban	$90,000 5-year ban
8 or more	$100,000 5 or 10-year ban	$100,000 5 or 10-year ban	$100,000 5 or 10-year ban	$100,000 5 or 10-year ban	$100,000 10-year ban	$100,000 10-year ban

 

The Service of Documents

• The regulatory amendments would prescribe the requirements for notices of violation, which would include:
• Notifications that confirm the determination of non-compliance
• The sanctions issued by the authorities, including:
• Administrative Monetary Penalty (AMP) amounts and / or,
• Bans
• Details on how the employer can make payments for the Administrative Monetary Penalties (AMPs)
• The amendments would also provide details on how officers could serve notices of violation and other documents to employers

The Administrative Review Process

• Under the proposed amendments, there is a proposal for providing an administrative review process to employers wishing to challenge:
• A determination of non-compliance
• The amount of an Administrative Monetary Penalty (AMP) or,
• The length of a ban
• An official, who was not involved in the original determination of non-compliance, would:
• Explain the administrative review process and,
• Conduct the process
• Employers dissatisfied with the outcome of the administrative review process, could pursue judicial review

The Publication of Employer Names

• The CIC and Employment and Social Development Canada (ESDC) can publish the names and addresses of non-compliant employers, who receive a two-year ban
• The information published would include:
• The Employer Name
• The Address
• The Date of the finding of non-compliance
• The Nature of the violation and,
• The Administrative Monetary Penalty (AMP) amount or the length of the ban

The Collection of Administrative Monetary Penalties (AMPs)

• Employers need to pay the Administrative Monetary Penalty (AMP) within 30 days of the date of the notice of violation
• For employers seeking an administrative review, this time period would be suspended
• The notice of violation would contain a process by which employers can ensure that they pay the Administrative Monetary Penalty (AMP) (for employers, who cannot pay the Administrative Monetary Penalty (AMP) within the specified time period)

Source: www.esdc.gc.ca