Changing labour market prompts Service Canada to put heavier onus on employers to advertise jobs to Canadians before recruiting foreign workers
Getting the word out about jobs
On May 5, 2010, Human Resources and Skills Development Canada (HRSDC), part of Service Canada, announced important changes to the advertising guidelines that employers must follow when recruiting foreign workers. The government also announced the end of the information technology workers pilot project as of Sept. 30, 2010.
Immigration lawyer Sergio Karas looks at the new guidelines on job advertising for employers pursuing foreign workers as well as what the end of the streamlined process for hiring foreign IT workers means for employers using foreign workers.
The extent to which the doors are open for Canadian employers to recruit foreign workers for jobs in Canada can change with the job market. But employers usually must make an effort to fill their labour needs with workers who are Canadian citizens or permanent residents before bringing in international talent. Recently, Service Canada tightened the requirements for advertising jobs to Canadians and foreign workers to ensure qualified Canadians weren’t getting pushed aside for foreign nationals in their job search.
All occupations based on the National Occupational Classification (NOC) system, skills levels O, A, B, C and D are subject to the same minimum advertisement requirements. Failure to comply with the requirements will result in the employer’s application for a Labour Market Opinion (LMO) for a foreign worker being denied.
Employers seeking to hire temporary foreign workers must be prepared to show they meet the minimum advertising requirements by providing proof of advertisement and the results of efforts to recruit Canadians or permanent residents. This proof includes copies of advertisements, number of Canadian applicants and why they were rejected. Records of hiring efforts should be kept for a minimum of two years.
All employers are encouraged to conduct ongoing recruitment efforts, including among underrepresented groups that face barriers to employment — such as Aboriginal peoples, older workers, immigrants, persons with disabilities and youth. Advertisements can be on recognized Internet job sites, in local and regional newspapers, at community resource centres and in local regional employment centres. The advertisement criteria vary slightly in the province of Quebec.
Advertising for managerial and professional occupations
Generally, class O and A jobs under the NOC are managerial level or very highly skilled occupations and B level jobs are many types of professional occupations.
Minimum job advertising efforts for these positions before recruiting foreign workers are:
•Recruiting activities consistent with the practice within the occupation — advertise on recognized Internet job sites, in journals, newsletters or national newspapers or by consulting unions or professional association.
•Advertising on the national Job Bank (or the equivalent in Newfoundland and Labrador, Saskatchewan or the Northwest Territories) for a minimum of 14 calendar days, during the three months prior to applying for a LMO.
In addition, advertisements for B level jobs must also include the:
•company operating name
•job duties (for each position, if advertising for more than one vacancy)
•wage range (an accurate range of wages being offered to Canadians and permanent residents) and it must always include the prevailing wage for the position
•location of work (local area, city, or town)
•nature of the position (project based or permanent position).
C and D Occupations (including seasonal agricultural workers)
These NOC categories cover low-skill work or trades.
Employers will have conducted the minimum required advertising efforts for Canadian workers if they:
•Advertise on the national Job Bank (or the equivalent in Newfoundland and Labrador, Saskatchewan or the Northwest Territories) for a minimum of 14 days during the three months prior to applying for an LMO.
•Conduct recruitment activities consistent with the practice in the occupation.
Employers must choose one or more of the following advertising options:
•appearance in weekly or periodic newspapers, journals, newsletters, national/regional newspapers, ethnic newspapers or newsletters, or free local newspapers
•advertise in the community (such as posting ads for two to three weeks in local stores, community resource centres, churches or local regional employment centres)
•Posting on recognized Internet job sites (union, community resource centres or ethnic sites) for 14 days.
The advertisement must include the same five pieces of information as required for B level positions — company name, job duties, wage range, location and nature of the position.
Wage rate
The following applies to all NOC B, C and D advertising conducted in support of applications for an LMO:
•The wage range identified in the advertisement must represent an accurate range of wages being offered to Canadians and permanent residents, working in the same occupation and geographical area. The wage range must always include the prevailing wage for the position.
•The prevailing wage is identified as the average hourly wage for the requested occupation in the specified geographical area.
•For a unionized position, the wage rate must be consistent with the wage rate established under the collective bargaining agreement.
•All benefits provided to Canadian workers or permanent residents must be extended to temporary foreign workers.
In order to address unique circumstances, HRSDC/Service Canada maintains the discretion to set the prevailing wage rate an employer must offer, whether or not the position is covered by a collective agreement.
Variations to the minimum advertising requirements
Variations to the minimum advertising requirements may apply in certain cases.
HRSDC/Service Canada reserves the right to require alternative or additional recruitment efforts — such as increased duration or broader advertisement (whether local, regional or national) — if it believes additional efforts would yield qualified Canadian citizens or permanent residents in the region who are available to work in the occupation.
There are some key differences between the current advertising requirements and the original version that came into force on Jan. 1, 2009. Most notably, the recruitment activities must be conducted for a minimum of 14 days, the advertising on the national Job Bank for NOC B occupations, and all advertisements for C and D occupations must now include the specific job duties of the position, location of work, and nature of the position. This clarifies the guidelines.
Employers must pay close attention to the requirement of posting the wages in the advertisement or the application may be rejected.
Termination of the information technology workers program
As of Sept. 30, 2010, the facilitated processing for information technology (IT) specialists will come to an end, except for employers wanting to hire foreign workers for positions in Quebec, where the facilitated process will remain in place for a limited time. Under the facilitated process, employers were not required to obtain LMOs to hire foreign workers in seven specific IT occupations. However, this process will now change. The elimination of the facilitated processing responds to new economic conditions in the technology industry.
Effective Oct. 1, 2010, employers who wish to hire temporary foreign workers previously eligible for IT facilitated processing will be required to apply for an LMO and demonstrate:
•The wage rate meets or exceeds the prevailing wage rate for the occupation and region.
•The working conditions are consistent with Canadian standards.
•Efforts to hire Canadians or permanent residents have been made and the temporary foreign workers program advertising guidelines have been followed.
•The employment of the foreign worker will directly create new job opportunities or help retain jobs for Canadians.
•The foreign worker will transfer new skills and knowledge to Canadians.
•The hiring of the foreign worker will not affect a labour dispute or the employment of any Canadian worker involved in such a dispute.
