Significant role for HR professionals to play in complying with Ottawa’s changes to foreign worker programs
In the past, employers didn’t attract much attention from governments when it came to immigration enforcement. That’s because it was easier to address the inappropriate conduct of individuals on a case-by-case basis rather than invest in a comprehensive employer-enforcement model.
But that’s changing. In September 2009, Australia introduced legislation — the Migration Legislation Amendment (Worker Protection) Act — that put new obligations on employers. Canada and Australia have always been viewed as primary immigration intake countries that employ similar immigration systems. Therefore, it comes as no surprise that, on Oct. 9, 2009, Jason Kenney, minister of citizenship, immigration and multiculturalism, announced proposed regulatory amendments to Canada’s Temporary Foreign Worker Program (TFWP) based on the following stated objectives:
• Minimize the potential for exploitation of the TFWP by employers and third-party agents, thereby better protecting foreign workers in Canada.
• Implement stricter employer-monitoring mechanisms, including a denial-of-service provision, thereby encouraging greater adherence by employers to the terms of offers of employment with respect to wages, working conditions and occupations.
• Underline that employment facilitated through the TFWP is meant to be temporary in nature.
These regulations impose new obligations on Canadian employers with respect to employing foreign workers. They establish guidelines for officials assessing labour market opinion (LMO) applications and for visa officers at ports of entry and in Canadian visa offices. Simply stated, they are required to evaluate the validity of a job offer based on the following factors:
• whether the offer is made by an employer actively engaged in the business in respect of which the offer is made
• whether the offer is consistent with the reasonable employment needs of an employer
• whether the terms of the offer are terms an employer is reasonably able to fulfil
• the past compliance of an employer, or any person who recruited a foreign national for an employer, with federal or provincial laws that regulate employment or the recruiting of employees.
This last factor introduces a new consideration — immigration officers will assess whether an employer has contravened federal or provincial employment laws in the past when considering an application. Previous minor contraventions of the employment standards legislation may be sufficient to trigger reporting an employer to federal immigration officials.
Is the employment offer genuine?
This proposed regulation deems an offer of employment not to be genuine under the following two circumstances:
First circumstance: In the two-year period preceding the day on which an offer of employment was received by the Department of Citizenship and Immigration or the Department of Human Resources and Skills Development, an offer of employment was made by an employer that:
• provided to a foreign national wages or working conditions that were significantly different from the wages or working conditions offered by the employer to the foreign national
• employed a foreign national in a significantly different occupation than the occupation described in the employer’s offer to the foreign national.
Second circumstance: An offer of employment received by the Department of Citizenship and Immigration or the Department of Human Resources and Skills Development within two years from the day on which the employer that made the offer was informed by an officer that an offer of employment made by the employer was deemed to be not genuine.
Essentially, the regulations reach back two years from the date on which an application is received when determining if the foreign workers working for the employer in question have worked under significantly different wages or working conditions than those indicated in the contract of employment or application filed for the purpose of obtaining a LMO.
The exact definition of “significantly different” is unclear — it could apply to a large variation in the wage agreed to and the wage actually paid, or may simply be triggered by a minor variation.
Controversial blacklist
One aspect of the regulations that is particularly controversial is the introduction of a list, to be maintained on Citizenship and Immigration Canada’s (CIC’s) website, that sets out:
• the names and addresses of employers that have made offers of employment that have been deemed, within the preceding two-year period, to be not genuine
• the date when each employer was informed its offer was deemed not to be genuine.
Listing a Canadian employer on such a blacklist could have considerable economic consequences both in Canada and abroad. Such employers would undoubtedly suffer additional scrutiny by all countries when evaluating work permits submitted by these employers under respective laws.
New limits on length of stay
Foreign workers holding a work permit issued pursuant to a LMO would be subject to a four-year limit on the length of their employment in Canada. These workers would have to leave Canada for six years before being entitled to receive a new work permit.
The regulations would provide exemptions for certain workers, including those who intend to perform work pursuant to international agreements (such as the North American Free Trade Agreement). The stated objective is to “signal clearly to both workers and employers that the purpose of the TFWP is to address temporary labour shortages, as well as encourage the use of appropriate programs and pathways to permanent residency in order to respond to the long-term labour needs of employers.”
Developing an employer strategy for foreign workers
The impact of the proposed changes is considerable. They are focused on ensuring employers satisfy obligations to foreign workers and, in situations where the genuineness of a job offer is in doubt, the employer would be barred from employing foreign workers for a period of two years. The employer would also be placed on an “ineligible employer” list on the CIC website.
HR professionals have a significant role to play in addressing the new compliance rules for foreign workers. A new corporate strategy should address the following:
Establish checks and balances: Employers should establish appropriate checks and balances within HR recording systems to ensure employees’ wages, and positions occupied, are and remain consistent with the representations made in support of the issuance of the work permits, namely the contract of employment as represented in the application filed by the employer.
Conduct an audit: An audit process should be established to identify employment conditions inconsistent with the terms of entry or extension of status granted to foreign workers in Canada. This audit process should be assigned to an individual who would own the process and be responsible for evaluating any changes in employee circumstances in order to provide proper guidance on required amendments to immigration documentation. Foreign workers in Canada should be included in the audit process as the proposed regulations consider all applications filed within the past two years.
Fix problems: Consideration should be given to rectifying any discrepancies at the earliest possible time, including the consideration of alternatives, such as applying for new LMOs with the appropriate wage information or seeking an amendment to existing immigration documentation.
The proposed regulations are in the consultative stages until December 2009. It is expected there will be considerable discussion with respect to whether the regulations are too punitive and severe — it is up to Canadian employers to respond.
Howard Greenberg is certified by the Law Society of Upper Canada as a specialist in immigration law and a partner in the human resources law firm of Greenberg Turner in Toronto. He can be reached at (416) 943-0288.
