Foreign worker programs can add complications when employers face layoffs or labour disputes involving immigrants
Foreign workers on the cutting block
Until recently, temporary foreign workers have been a key component of Canada's labour market. With the current economic downturn, these same workers have been experiencing significant uncertainty in their employment and immigration status. What obligations do employers have to foreign workers when dismissing or laying off employees? How are these obligations different in a labour union environment?
Business immigration lawyer Evelyn Ackah shares some of her expertise in the area of foreign worker employment to help employers be aware of what they can do when potential layoffs or labour disputes involve foreign workers who are in Canada under Labour Market Opinions from Service Canada.
Canadian employers looking to dismiss temporary foreign workers must be aware of their obligations under Service Canada Labour Market Opinions (LMOs). Recently, LMOs have contained “instructions” for employers that stipulate foreign workers must be laid off before Canadian workers in the same job category. These LMO instructions are not binding or enforceable on employers but, if they are not followed, employers could face further scrutiny for any future LMO applications. In addition, employers must also comply with provincial legislation, employment contracts and union agreements when considering layoffs. Sometimes these obligations can conflict and employers must be aware of the appropriate actions to take to ensure compliance with the law at all times.
Labour disputes
Employers of temporary foreign workers who join a labour dispute, such as a strike, lockout or work-to-rule campaign, must immediately notify Service Canada and advise of the ongoing dispute. One of the factors considered in granting an LMO confirmation approval to an employer is the consideration of whether the employment of the foreign worker is likely to adversely affect the settlement of any labour dispute in progress, or the employment of any person involved in the dispute. Although mandatory disclosure of a labour dispute may impact the employer’s ability to immediately obtain additional LMOs, failure to advise Service Canada of a labour dispute may significantly impact an employer’s ability to obtain future LMOs as Service Canada now reviews proof of past compliance.
Union agreements
Situations can arise where a Canadian employer who has received LMO approval is also bound by a collective agreement with its union that ranks employees based on their length of service. Such an agreement may result in a foreign worker having more seniority than a Canadian or permanent resident holding the same job category. When faced with a conflict between the instructions of the LMO outlined above and the union agreement, an employer must first abide by the terms of the collective agreement, which is binding. This would mean, contrary to the LMO instructions, the employer would be required to dismiss the Canadian or permanent resident employee and retain the foreign worker as long as his work permit remains valid.
Work share and employment insurance
As a result of the economic downturn, some Canadian employers are now looking at temporary layoffs and work share strategies as options to avoid employee terminations. It is important, however, for employers to recognize these strategies may not apply to foreign workers they are trying to retain. For example, foreign workers are generally not eligible to participate in a work sharing agreement unless their job duties are considered essential to the viability of the business. Service Canada has confirmed this is a discretionary decision in terms of who is considered "essential." However, it is unlikely foreign workers will be considered essential whether or not they are members of a union.
Another consideration for employers when terminating or laying off employees is whether or not foreign workers will be eligible for employment insurance (EI). Each province across Canada deals with this issue differently, so it is highly recommended employers confirm with the local EI office whether laid off foreign workers who are searching for new positions will be temporarily eligible for EI support. In some cases they will not be eligible, and this may be a consideration for an employer when making the difficult choice between terminating a foreign worker as opposed to a Canadian worker.
Employer obligations
Across Canada, each province has its own legislation governing an employer’s rights and duties in relation to foreign workers. In Alberta, for example, the obligations of notice periods and general working conditions are found in the Employment Standards Code, which provides that in a labour dispute involving a strike or lockout, an employer is not required to give an otherwise eligible foreign worker termination notice.
Employers must also comply with human rights legislation. The recent British Columbia Human Rights Tribunal decision of C.S.W.U., Local 1611 v. SELI Canada Inc., demonstrates the importance of abiding by human rights legislation, and treating all workers fairly, including foreign workers. In C.S.W.U., the issue was whether an employer had discriminated against Latin American foreign workers by treating them differently than its European foreign workers who were also in Canada working on the same project. The employer denied there had been any discrimination and argued the discrepancies between the salaries of the two groups of foreign workers was a result of SELI’s international compensation practices. SELI claimed the European workers could not be paid less than what SELI had paid them on previous projects in other countries and they were more skilled than many of the Latin American foreign workers.
The tribunal held SELI discriminated against the Latin American workers in respect of salaries, accommodation, meals and expenses, and that no justification existed for the prima facie discriminatory conduct. The company was ordered to pay each Latin American foreign worker the difference between the salary and expenses they received and what was paid to the European foreign workers, plus an additional $10,000 each for injury to dignity. Although it is very rare for foreign workers to pursue legal action in Canada, this could become more common as foreign workers encounter more layoffs and discriminatory practices as a result of challenging economic conditions.
Clearly, Canadian employers retain the right to hire and dismiss foreign workers as they see fit. However, they must always be cognizant of their legal obligations in terms of abiding by provincial legislation, Service Canada LMO requirements and any employment or union agreements. Abiding by these requirements will help employers avoid legal liability as well as impediments to employing foreign workers in the future once the economic situation improves.
For more information see:
•C.S.W.U., Local 1611 v. SELI Canada Inc., 2008 CarswellBC 2981 (B.C. Human Rights Trib.).
Evelyn L. Ackah is a partner at Fraser Milner Casgrain LLP’s Calgary office, the head of its business immigration law practice group and a member of its employment and labour group. She can be reached at (403) 268-7057 or [email protected].
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Foreign construction faced discrimination
SELI Canada, a subsidiary of a Rome-based tunnel boring company working on the Canada Line project, a transit link being constructed in Vancouver for the 2010 Winter Olympics, brought in workers from Costa Rica in April 2006. In September, workers from Europe were brought in to work with the Latin Americans.
The Latin Americans were paid about 60 per cent of what the Europeans were paid and most were housed in a motel some distance from the worksite. The Europeans stayed in condominiums close to the the worksite. The Europeans were also given money for breakfast and dinner every day while the Latin Americans were only given money for breakfast.
SELI said the Latin Americans were paid less because its international compensation practices paid workers in relation to global labour markets. The workers earned less in Costa Rica, so they had a lower base to start from, SELI argued. The companies also said the workers agreed to the conditions in a collective agreement.
The tribunal said SELI’s practices had a negative discriminatory effect by treating them differently and the collective agreement didn’t rule out discrimination because parties can’t contract out of human rights legislation.
“The application of SELI’s actual international compensation practices to the Latin Americans on the Canada Line project was to take advantage of the existing disadvantaged position of these workers, who are from poorer countries, and to perpetuate that disadvantage, and to do so while they were living and working in British Columbia,” the tribunal said.
