Legal Update: More Changes to Federal Temporary Foreign Worker Program
January 21, 2014
By Blair Pritchett, at McInnes Cooper
On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal Temporary Foreign Worker Program took effect:
- New Conditions. Employers seeking to hire foreign workers are subject to new – and additional – record keeping, training and workplace condition obligations.
- Sex-Related Trades. Employment and Social Development Canada (ESDC) – the Federal agency that administers the Program jointly with Citizenship and Immigration Canada – will not issue LMOs (Labour Market Opinions) to employers in sex-related trades.
- Increased Powers. ESDC has increased powers to suspend, revoke or refuse to issue LMOs – and has increased inspection and verification powers to ensure compliance.
- Non-Compliance. Employers that don’t comply with the new conditions are subject to consequences.
- LMO Application. Employers must now complete and submit an updated LMO application.
These changes may not increase the time or effort required to obtain an LMO – but employers will have to put in up-front work to ensure that Canadians and permanent residents have first crack at available jobs. Employers will also be subject to more conditions once an LMO and subsequent work permit are issued, and may need to adjust their processes to comply with the conditions to keep it.
These are some highlights of the changes relevant to most employers:
New Employer Conditions. The changes impose new conditions on employers seeking LMO’s from ESDC, including that they must:
- retain documents relating to compliance with the Regulations for 6 years, beginning on the first day of the employment period for which ESDC issued the work permit;
- show that any information they provided in an LMO application is accurate for this same 6 year period;
- make reasonable efforts to provide a workplace that is free of abuse;
- hire or train Canadians or permanent residents, or make reasonable efforts to do so, if this is a factor that led to issuance of the work permit; and
- ensure job retention, creation or skills transfer benefitting Canadians or permanent residents if this is a factor that led to issuance of the work permit.
No LMOs in Sex-Related Trades. To protect foreign workers from exploitation, ESDC will not provide LMOs to employers who regularly offer striptease, erotic dance, escort services or erotic massages.
Increased Ministerial and ESDC Powers. The changes give ESDC more powers in relation to both issuing LMOs and ensuring compliance:
- LMO Processing. Under the new Instructions, ESDC has the power to suspend, revoke or refuse to process LMO applications based on public policy considerations, including refusing to process LMOs because of public policy considerations related to selected sectors, regions or occupational groups.
- Increased Inspection Authority. ESDC has increased authority to conduct inspections to verify an employer’s compliance with the conditions. ESDC will use various methods to verify compliance including: obtaining documentation; conducting on-site inspections without a warrant; and interviewing employees.
Triggering Compliance Verification. ESDC can randomly select employers for compliance verification, and can inspect employers if there is reason to suspect a violation or if the employer has been in violation of conditions before.
Non-Compliance. Employers can respond before ESDC makes a determination they have not complied with the Regulations. Where ESDC does find an employer has not complied, the employer will:
- be ineligible to hire foreign workers for 2 years; and
- be included on a public ban list.
New LMO Application. Employers must now complete an updated LMO application form that includes modified questions and additional employer declarations. Click here to see the new LMO Application.
Click here to read the new Ministerial Instructions.
Click here to read the amendments to the Regulations (the Government has not yet published a full version of the Regulations incorporating these amendments).
IMPACT OF CHANGES
Employers must focus on hiring and training Canadians or permanent residents, and seek opportunities for foreign workers to transfer skills and knowledge to Canadians and permanent residents. Once ESDC issues a positive LMO and the work permit is issued, employers will be subject to more conditions – and may need to adjust their processes to ensure they comply with them. ESDC may take steps to verify compliance with the Regulations, and employers must be prepared to respond – or risk the consequences of non-compliance.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Immigration Law Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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