• Changes, Changes and More Changes: Keeping Up With The Temporary Foreign Worker Program These Days, Canada's Temporary Foreign Worker
  • November 26, 2013 | Author: Andrea F. Baldwin
  • Law Firm: Stewart McKelvey - Halifax Office
  • These days, Canada's Temporary Foreign Worker Program ("TFWP") is more top of mind than ever for Canadian employers. This is in part because of the many changes made by the Government of Canada to transform the TFWP over the last couple of years. It is also the result of two recent examples of employers bringing foreign workers to Canada that garnered significant media attention and got people talking and thinking about the role of Canada's TFWP in an unprecedented manner.

    First there was the HD Mining case in which that company received approval to temporarily employ 201 foreign workers in its Murray River Cole Mine Project in British Columbia in April 2012. Two trade unions unsuccessfully challenged the basis upon which Labour Market Opinions ("LMOs") were issued to HD Mining to confirm the employment of these foreign workers at the Federal Court. Even though the Court upheld the reasonableness of the LMOs, this case began a public debate about the system that allows employers to hire foreign workers.

    A year after the HD Mining case made headlines, the TFWP came under fire again when a Canadian bank was in the media accused of outsourcing jobs to another jurisdiction and using the TFWP to bring foreign workers, who would be doing those jobs, to Canada for training.

    While the HD Mining story prompted the government to announce it was reviewing the TFWP, the bank outsourcing story generated a political backlash, which led to some immediate changes to the TFWP and a commitment that more were coming.

    On April 29, 2013, the accelerated LMO process (which offered expedited LMO processing to employers with good compliance records) was suspended, and the ability of employers to pay foreign workers slightly below the prevailing wage rate (in situations where their Canadian employees were also paid the same amount) ended.

    Since these changes were announced, the TFWP has continued to change at a dizzying pace. On June 8, 2013, the Government of Canada pre-published proposed amendments to the Immigration and Refugee Protection Regulations to strengthen employer compliance verification mechanisms. These proposed changes, which are not yet in force, include:

    • Increasing the verification period for which an employer can be subject to an Employer Compliance Review ("ECR") from two to six years.
    • The ability to impose conditions on employers related to job creation, skills transfer and the training of Canadians when an LMO is issued, which must be satisfied during the period of a foreign worker's employment.
    • Expanded authority to conduct ECRs at any time, including the power to inspect an employer's premises, not just when an LMO application is submitted, as is now the case.

    On July 31, 2013, with little warning, further changes were made to the TFWP that are having a significant impact on employers. In this most recent round of changes the government introduced mechanisms designed to reposition the TFWP as a "program of last resort". They include:

    • A processing fee of $275 per foreign worker.
    • More robust advertising requirements for obtaining an LMO. Unless a specific recruitment exception applies, all employers are now required to publicly advertise more expansively for at least a month before requesting an LMO, and must continue to recruit until the LMO is issued. With average LMO processing times of eight to 12 weeks, employers are now routinely forced to spend more money on advertising and wait longer to obtain an LMO to hire a foreign worker.
    • Increased scrutiny of any employment arrangement involving a third party and/or outsourcing to ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs.

    All indications suggest that the government is not finished reforming the TFWP yet.

    Following a speech to the Economic Club of Canada in Toronto on October 8, 2013 on the gap in Canada's labour market, Employment and Social Development Minister Jason Kenney, (former Minister of Citizenship and Immigration) hinted that a revamped expedited LMO process will be reintroduced soon to allow employers to bring foreign workers to Canada more quickly in high-paying, high-skilled jobs. According to an article published in The Vancouver Sun, about Minister Kenney's comments following the Oct. 8 speech, he also indicated that various work permit categories which are currently exempt from the LMO process are being reviewed and may not exist in the future (T. Cohen, "Program for Foreign Workers Could be Restored: Employment Minister says Ottawa Studying New Focused Fast-Track Hiring Scheme", The Vancouver Sun, October 10, 2013). The possible reintroduction of accelerated LMO processing is good news for many employers, especially since some of the LMO exemptions used to obtain work permits expeditiously for certain key foreign nationals (i.e. intra-company transferee work permits, professional work permits under NAFTA or other international trade agreements) may be on the brink of extinction.

    More evidence that reforming Canada's TFWP continues to be a top priority for our government is the fact that it featured prominently in the Speech from the Throne delivered by Governor General David Johnston on October 16, 2013. The Throne Speech said one of the measures the government will take to address the job or skills gap described as "too many people without jobs and too many jobs without people" is "to complete reforms to the Temporary Foreign Worker Program to ensure that all Canadians always have the first chance at available jobs".

    Although many of the recent statements made about Canada's TFWP foreshadow that the next series of changes to Canada's immigration laws and policies regarding foreign workers will continue to emphasize a "Canadians first" policy, the full extent of what is still to come, and the impact those changes will have on Canadian employers, remains to be seen.