Hiring foreign workers just got harder

Fees, broader advertising, language restrictions when hiring temp workers
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 09/09/2013

Alterations to the Temporary Foreign Worker Program (TFWP) — including new processing fees, wider advertising requirements and additional application questions — are receiving mixed reviews from both labour and employer experts.

The federal government reforms are meant to strengthen and improve the program and “ensure that Canadians are first in line for available jobs,” according to Jason Kenney, Minister of Employment and Social Development.

While the changes have a lot more to do with politics than economic policy, they seem “reasonably sensible,” according to Dan Kelly, president and CEO of the Canadian Federation of Independent Business (CFIB).

“No employer is probably going to light their hair on fire with these issues.”

But while the TFWP has its flaws, these changes are radical, according to Marty Baram, director at SYMY Manpower in Edmonton.

“This is a knee-jerk reaction to a couple of very high-profile news stories, most specifically the mine workers in British Columbia and the RBC outsourcing story,” he said. “I do believe the government needs to
regulate and modify and change the program from time to time but, in essence, what they have done now is they have begun to close the program.”

Processing fees

One major change involves a $275 processing fee for each position an employer requests through a Labour Market Opinion (LMO). In 2012, 60 per cent of positive LMOs did not lead to a work permit being issued to a temporary foreign worker, said the government.

“With the implementation of a fee, employers will be less likely to apply for TFW positions they may not fill, helping ensure taxpayer resources are not wasted,” said Kenney.

The processing fees aren’t really an issue, according to Kelly. “It’s already incredibly expensive to bring in a temporary foreign worker so a $275 fee we’re not sure is going to be a major impediment.”

But originally there was discussion the fee would be about $186, said Baram.

“It’s too much, it’s too high — although I do believe a fee should be charged for Labour Market Opinions,” he said. “If you apply for 10 positions, you’re charged $2,750.”

And while most of his clients have managed to digest that fee, he said, “I’m very, very pessimistic regarding my smaller clients continuing with the Temporary Foreign Worker Program because of the financial burden.”

But if you do the math, it works out to 3.5 cents per hour for a four-year period, which “is nothing,” according to Karl Flecker, director of human rights and anti-racism at the Canadian Labour Congress, adding the only way the fee would come close to cost recovery is presuming a number of employers are going to ask for more than one migrant worker.

Countries such as Singapore, where one-quarter of the workforce are migrant workers, have long recognized the need to internalize the full costs of managing the immigration systems, he said, so they charge $800 to $1,000 per application to ensure issues such as proper wages, safe worksites and proper housing are provided.

For smaller, non-profit employers, such as festivals that bring in artists for a few days or weeks, the cost could be substantial, said Jason Foster, academic co-ordinator of industrial relations at Athabasca University in Alberta.

“The irony about $275 is I think it’s going to do more to actually harm employers with legitimate reasons to use temporary foreign workers than it is to do what its stated goal is — which is to try and reduce the total usage of temporary foreign workers,” he said.

Advertising changes

Employers must now advertise available positions (aside from certain agricultural worker streams and live-in caregivers) in Canada for at least four weeks before applying for an LMO. And in addition to advertising on the national Job Bank website or the equivalent provincial or territorial websites, employers must prove they have used at least two other recruitment methods that are consistent with the advertising practices for the occupation.

One needs to be national in scope if hiring for a high-skill occupation while employers hiring for low-skill occupations need to show they have tried to target under-represented groups in the workforce.

Employers must also actively seek qualified Canadians to fill the advertised positions until an LMO has been issued.

But these rules are simply unfair, said Baram. Previously, employers could use sites such as Kijiji or Craiglist and these sites sufficed — the job offers were getting out there, he said. But now, certain occupations require employers to advertise on national sites such as Workopolis or Monster, where fees can be higher, plus the ads have to be published for the duration of the LMO processing, he said.

“So if you take the four weeks prior, before applying for the Labour Market Opinion, and three months’ processing, that’s four months at a minimum price of $500 — that’s $2,000 in advertisements. Who’s going to be able to afford that?”

But it’s all going to rest on enforcement, according to Foster, as an employer could run a newspaper ad for four weeks but that doesn’t mean it’s seriously contemplating hiring anybody who applies.

“Part of the problem is the government has no capacity to actually evaluate whether applicants that surfaced from that ad were capable of doing the job or not. It may not even be appropriate for the government to second-guess employers on hiring decisions but, because they can’t, you’re not actually preventing any gaming of the system.”

Language changes

In addition, English and French are the only languages that can be identified as a job requirement in ads and LMO applications, aside from some agricultural worker streams and “rare and specialized circumstances,” such as tour guides or translators.

As long as there are exceptions and it’s sensible to implement, this change makes sense, according to Kelly.

But the language requirement is because of the controversy around HD Mining (which decided to bring in 201 temporary foreign workers from China in 2012), according to Flecker, and there are still exemptions. Farm operators, for example, can continue to rely on workers from Asia, the Caribbean and South and Central America.

Additional questions have also been added to LMO applications to ensure the TFWP is not used to facilitate the outsourcing of Canadian jobs.

But what followup is there if, for example, an employer has a plan to transition to an all-Canadian workforce in two years? asked Foster.

“Are they going to do that or are they just going to rubber-stamp the exemption?”

Requiring employers to put together a plan to only have Canadians on staff is not realistic in some pockets of the country, said Kelly. A pizza joint in a northern Alberta oil town, for example, could have trouble finding staff.

“The Temporary Foreign Worker Program, for those businesses, especially in rural, remote communities, resource towns, tourist destinations, has been an absolute godsend and I think it’s very unrealistic to get to an all-Canadian workforce.”

And there are still larger issues with the program, such as employers’ ability to have an accelerated LMO and wage flexibility, said Kelly

“They are adding a bunch more process steps to the application process so it’s going to be more bureaucracy, slower.”

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