Catherine Sas, K.C.We are constantly hearing that Canada is facing a shortage of workers and that we need to turn to immigration to satisfy the labour market needs of Canadian employers. Yet, while economists and demographers continue to chronicle Canada’s labour shortage and that foreign workers are badly required to sustain our economic growth, the Government of Canada has been making numerous changes throughout this spring and summer that are of key significance to employers. Two controversial cases this past winter concerning Chinese mine workers in Northern British Columbia and the Royal Bank’s termination of domestic employees while outsourcing work off shore, garnered considerable media attention. The government reacted by dramatically modifying its foreign worker program and making it tougher for employers to bring in foreign workers to Canada.
The standard way of bringing foreign workers to Canada requires an employer to make an application to Service Canada and to demonstrate that there are no suitably trained Canadians available to perform the work. In assessing the application, a Service Canada officer must determine whether the foreign worker will have a neutral or positive impact on the Canadian labour market. If approved, the employer is issued a Labour Market Opinion (LMO) which is then used to apply for an individual work permit. The LMO process is not a speedy one, taking generally two to three months or more. Largely as a result of the complaints from Canada’s business community about lengthy processing times, last year the government introduced the Accelerated Labour Market Opinion (ALMO) which offered speedier 10 day processing standards for qualifying employers along with reduced wage rate provisions that permitted employers to pay wages for high skilled positions at up to a 15% reduction from average national wage rates so long as Canadian employees were also being paid wages for the same positions at the same reduced wage rate.
As part of its Economic Action Plan (EAP) on April 29, 2013, the government eliminated these two recent policies that allowed for flexibility and speedier processing: the Accelerated Labour Market Opinion (ALMO) and the wage flexibility provisions that were brought in just over a year ago to ameliorate the plight of employers facing chronic labour shortages.
Shortly thereafter on June 26, 2013 further legislative changes were made to allow officers to revoke both work permits and LMOs in situations where an officer determined that the LMOs or work permits were not properly issued or not properly being used.
On July 31, 2013 even further changes were introduced, bringing in a processing fee for LMO applicants. The LMO process historically never had a fee. Once an LMO was confirmed, fees were charged for the individual work permit application. The introduction of a fee is significant, as it applies to the consideration of the application itself and not whether the LMO will be issued. Accordingly, employers will be paying $275 per worker for an LMO application whether or not it is ultimately issued. This provision was introduced not to generate revenue to process applications more expeditiously, but rather as a deterrent to employers seeking LMOs to bring in temporary foreign workers and to encourage employers to make greater efforts to both recruit and train Canadians in lieu of applying for temporary foreign workers.
At the same time, restrictions on language requirements and more stringent advertising requirements were implemented. Previous regulations were silent on the subject of language. LMOs are assessed on the basis of whether bringing in the proposed worker is likely to have a positive or neutral effect on the labour market in Canada. The new provisions stipulate that the employment of a foreign national is unlikely to have a positive or neutral effect on the Canadian labour market if the job offer requires a language other than English and French. The provisions essentially deem that any requirement for a language other than one of Canada’s two official languages CAN NOT have a neutral or positive effect on the Canadian labour market. There are some exceptions that employers can demonstrate in order for another language requirement to be considered appropriate in the granting of the LMO.
Perhaps even more significant than the introduction of the $275 processing fee is the enhanced advertising requirement – employers are now required to advertise for four weeks and on a national basis. All employers are now required to advertise for positions in Canada for a minimum of four weeks prior to applying for an LMO. The employer must advertise on a Canadian job bank, in a national source and in at least one other source. Advertisements must be posted for a minimum of four weeks prior to submission of the LMO application. Further, some advertising must remain ongoing throughout the application process until the LMO is issued. For semi-skilled and low-skilled occupations the advertising requirements are even more stringent.
Employers are facing considerable challenges in the years ahead. Demographic studies continue to demonstrate that as Canada’s labour market ages there will be an increasing shortage of high skilled, semi-skilled and low-skilled workers. Yet, current government action has made it more difficult for employers to meet their labour market needs. Advertising requirements have not only become more stringent but the necessary time period for advertising has doubled from two to four weeks. Employers must now pay $275 per employee for making an application for an LMO whether or not it will be issued. Processing times for the LMO vary across the country but generally last between two to three and a half months. For employers this means they need to be forward-looking, budgeting for their work force on an ongoing basis and at least six months in advance of their anticipated needs.
