Catherine Sas, K.C.The spring and summer have been busy ones for Jason Kenney, Minister for Employment and Social Development. In early April he announced the first businesses ever to have been blacklisted for breaching the Temporary Foreign Worker Program. The media blitzkreig that followed lead within days to the complete shut down of the program for anyone in the food and beverage industry. A few weeks later an entirely new Temporary Foreign Worker Program was introduced changing the rules of the game completely and severely limiting the foreign worker program. The changes to Canada’s Temporary Foreign Worker Program (TFWP) are significant and all employers who have a need for foreign labour need to know the new rules of the game.
The Conservative government has been busy transforming Canada’s immigration program for the past several years. Concerned about ongoing abuses in the TFWP, in August 2010 they introduced strict new Compliance measures for employers which took effect on April 1, 2011. These new provisions included publicly blacklisting employers who were in breach of their obligations, cancelling the work permits for any foreign workers that they currently employed, and denying them access to the program for a period of two years. It took the government three years to finally identify their first blacklisted employers publishing the names of three businesses the first week of April 2014. All three businesses were in the food industry. A media frenzy ensued and within a matter of days Minister Kenney froze the TFWP to the food and beverage industry. When he re-opened the program a few weeks later, he did so by completely altering the entire program for all businesses in Canada.
Here are some of the key elements of the revised TFWP:
Labour Market Opinions( LMOs) based upon National Occupational Classification (NOC) descriptions to identify high skilled and low skilled occupations are eliminated. There are now two distinct programs:
- LMIA – The Labour Market Impact assessment replaces the LMO stream. This program is run by Employment and Social Development Canada ( ESDC) and focuses primarily on labour market considerations.
- IMP – The International Mobility Program is run by Citizenship and Immigration Canada (CIC) and is largely based upon international agreements such as NAFTA, GATS and international youth mobility agreements.
The LMIA replaces the LMO and the distinction between high skilled and lower skilled occupations is now based upon the provincial or territorial median wage rate rather than a NOC classification. An employer who pays a wage lower than the median wage rate falls into the low skilled category which has greater limitations than high skilled occupations. The program also limits the use of low skilled workers based upon regional rates of unemployment – if the unemployment rate is more than 6% then no LMIAs will be issued for low skilled workers. Work permits for low skilled workers will only be issued for one year at a time and there is a limit of two years for low skilled workers cumulatively in Canada. For higher skilled positions, employers have to provide transition plans demonstrating their ongoing efforts to transition Canadian permanent residents or citizens into the required positions or transitioning their foreign workers into permanent residents. For employers there is also increased record keeping, inspections and enforcement and for breaches of the program there are increased fines and penalties. Employers are required to maintain all records for six years and those who are in violation of the program can face up to $100,000 in fines and up to 5 years in jail. There are also increased application fees – from $275 per employee to $1000!
The message to employers is very clear – limit your use of temporary foreign workers and be sure that you are in strict compliance of all aspects of the program. You can be certain that with the ongoing scrutiny of this program by the media, the government will be keen to showcase the effectiveness of these new measures!
