Since 2011, Canada’s federal government has introduced sweeping changes to the Temporary Foreign Worker Program (TFWP). Regrettably, employers report negative repercussions from these reforms, which have handicapped short-term project capabilities and altered long-term business development plans.
These perturbations are largely the result of red tape around bringing foreign talent onboard using the TFWP. In addition to the sheer complexity of the new regulations, audit readiness and compliance are a growing concern for many employers.
In this new and complex landscape, obtaining a work permit is no longer a results-oriented, mechanical administrative exercise. Employers must adapt business models and practices to deal with new challenges in immigration and international mobility.
Here are some of the key developments that make it imperative to have a modernized and flexible approach to TFWP management.
Prevailing wage and mandatory advertising requirements: Historically, employers had the flexibility to pay temporary foreign workers up to 15 per cent below the prevailing wage for a high-skilled occupation, and five per cent below the prevailing wage for a low-skilled occupation (under certain conditions).
With the first round of restrictions introduced in 2012, this flexibility ended in 2013. Also beginning in 2013, job advertisements have to include the salary offer. Finally, since 2014, employers must keep all recruitment records including copies of applicant resumés and all relevant documents, for six years. They must also make them available for compliance audits during this period.
Today, employers are besieged by practical problems resulting from lacunas in the wage and advertisement requirements. The most commonly cited issues are lack of clarity as to which recruitment efforts are considered acceptable and sufficient, and the special circumstances in which an employer can be exempted from including salary information in the ad text. This lack of clear directives is exacerbated by the fact government agents administering the program frequently offer conflicting, or at best variable, interpretations of the rules.
In addition, employers face formidable legal and strategic challenges. The “artificial nature” of the advertisement requirement under the TFWP has long been a major concern for employers. For many, advertising via provincial or national job banks or including the salary offer in the posting runs contrary to the employer’s normal hiring practices, particularly when recruiting for senior management positions.
Despite strong evidence of a disconnect between the regulation and hiring practices on the ground, TFWP rules make too few exceptions. On the ground, this often means additional “compliant” recruitment efforts must be made, even where the employer has already identified a suitable foreign candidate through a previous good-faith campaign that was standard for the company, the industry and the type of occupation.
This juxtaposition adds layers of complexity to the hiring process and raises serious employment law and anti-discrimination law concerns.
For starters, the employer must carry on the “minimum advertisement” campaign on the provincial or national Job Bank web site even after it has filed a Labour Market Impact Assessment (LMIA) for a foreign candidate who meets the job requirements and has been selected for the position.
Second, the employer must somehow distinguish between Canadian workers (citizens and permanent residents) versus foreign workers in the hiring process, while not infringing on Canadian anti-discrimination law.
Finally, the employer compounds its liability risks as it must secure an employment contract with a foreign worker while essentially being unable to commit to the contract, due to uncertainty as to the outcome of the work permit process. In this context, larger employers may quite easily find themselves embroiled in anti-discrimination or damages lawsuits.
Transition plans: Since 2014, employers intending to hire a “high-wage” TFW must submit a “Transition Plan” with the LMIA application. High-wage positions are defined as full-time positions (minimum of 30 hours of work per week) where the wage offered is at or above the provincial or territorial median hourly wage where the job is located. In sum, a Transition Plan forces employers to commit to undertake specific activities to recruit, retain and train Canadian (citizens or permanent residents) for the position offered for the entire period of the approved LMIA, if a positive decision is rendered, or to facilitate the transition of a TFW from temporary to permanent by obtaining permanent residence status.
The Transition Plan is mandatory, even for the initial LMIA request where a foreign worker has not yet worked a single day for the employer. The challenges are numerous: While it is normal to carry on continuous recruitment efforts for a multiple openings position, can the employer be forced to advertise for a position where there is no opening?
An employer cannot legally dismiss a foreign worker already employed under a valid work permit, solely based on the fact it identified a Canadian candidate through additional recruitment undertaken under a Transition Plan. In such instances, the plan seems at the very least to be in conflict with basic premises of Canadian labour law.
In this context, can the employer be liable for creating false expectations for job applicants?
On the other hand, asking future employees to commit to the permanent residence process at a juncture where they have not yet lived or worked in Canada can be construed as undue pressure.
The above considerations are in addition to personal circumstances that may render a permanent residence application moot within the two-year “transition period.” Moreover, indiscriminate mixing of TFWP with permanent residence introduced via the Transition Plan raises a number of privacy concerns.
Permanent residence historically has been, and must continue to be, a deeply personal, individual commitment to become Canadian. It is not clear at all to what degree an employer can be liable for a worker’s failed commitment to become a permanent resident when the employer has no control over key factors such as security and background checks, medical inadmissibility of the worker and family members or, ultimately, the candidate’s genuine interest in becoming a permanent resident.
Most importantly, the immigration system itself may not be ready to absorb the commitments under the plan. The federal government’s Express Entry is still undergoing a transition period of its own, creating uncertainty and fluctuating processing times.
Quebec’s fast-track permanent residence program, the Quebec Experience Class, requires a candidate to have at least one year of work experience in the province prior to submitting the application, making the two-year transition to permanent status unrealistic in many cases.
These new TFWP processes require a skillset and professional competencies above and beyond traditional immigration or HR qualifications. Similarly, new obligations such as the Transition Plan call for the awareness of complex problems at the intersection of legal, ethical and HR management issues.
As the emphasis in TFWP management shifts from technical skill to tactical action, employers must nurture a new breed of HR and global mobility specialists who are able to tackle multidisciplinary problems and evolve in cross-functional roles.
Even when relying on external providers for mobility operations, these HR specialists should have a solid understanding of the ground rules affecting immigration management operations, hiring practices, HR policies and related mobility activities.
While we agree with the overarching responsibility to put Canadians first, it should not conflict with the need for a flexible, modern foreign worker legal framework. Such a framework must be aligned with real life recruitment practices.
It must also take into consideration certain subjective factors in assessing foreign candidates, particularly in sectors of the economy where high-skilled foreign talent has proven to be the industry’s driving force.
Only then does our system become attractive for employers and candidates alike and help Canada meet global competitive pressures.
Julie Lessard is a partner at BCF Business Law in Montreal. She can be reached at (514) 397-2260 or julie.
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