Canada’s temporary foreign worker program: new emphasis on enforcement

By Thora Sigurdson

As we reported earlier, in response to increasing concerns about the Canadian Temporary Foreign Worker Program (TFWP), Citizenship and Immigration Canada and Employment and Skills Development Canada (ESDC) have stepped up enforcement.

At least three employers (in British Columbia, Ontario, and Newfoundland) have had their Labour Market Opinions (LMOs) revoked or suspended and been placed on what some are calling the “bad employer” or “black list.” Audits of employers are becoming more common (on both a random and complaints-made basis). And complaints about misuse of the TFWP are front-page news in British Columbia, Ontario, and elsewhere across the country.

Employers’ obligations for temporary foreign workers

It is a good time for Canadian employers to recall their obligations under the TFWP and ensure they have the proper systems in place. The employers’ obligations include:

1. Employers must retain documents to verify compliance with the Immigration and Refugee Protection Act and the terms and conditions of the LMO for six years. This documentation includes the job posting and responses, job description, employment agreement, proof of compliance with the terms of employment (compensation, benefits, etc.), payroll records, records of hours of work, and other such records.
2. Employers must provide a safe workplace.
3. Employers must provide training if promised in the LMO application.
4. Employers must continue to monitor the Canadian labor market. There is no guidance on how to do this, but the Ministerial Instruction of November 26, 2013, states that an LMO may be revoked if new information becomes available after the LMO is issued that indicates the TFW is having or will have a significant negative effect on the labor market of Canada.

“Substantially the same” terms and conditions

In addition, an employer is required to provide “substantially the same” terms and conditions of employment as set out in the application for an LMO, the employment contract submitted with the application (where applicable), and the LMO. As a result, an employer may have little ability to adjust scheduling of TFWs to meet changing circumstances.

The obligation to provide “substantially the same” terms and conditions contemplates some, albeit limited, flexibility. There are also circumstances where variances are justified. They include:

• A change in federal or provincial law;
• A change in a collective agreement;
• Changes made evenhandedly for Canadian workers and TFWs in response to a “dramatic change in economic conditions that directly affects the business of the employer”;
• A good faith error that is corrected or compensated for, to the extent possible;
• An unintentional accounting or administrative error that is corrected or compensated for to the extent possible; or
• Similar circumstances.

But Canadian employers should keep two points in mind:

1. The “economic circumstances” justification applies only where there is a “dramatic change” that directly affects the employer’s business. A general slowdown or an event that temporarily affects business will not justify providing less than the promised wage or fewer hours to a TFW. This may put the employer in the difficult position of either continuing to provide full shifts to TFWs while giving Canadians fewer hours (and thereby negatively impacting the Canadian labor market) or reducing wages or shifts for all workers (Canadians and TFWs) and thereby run afoul of the obligation to provide substantially the same terms and conditions to the TFW.
2. A TFW cannot consent to a change of terms and conditions. Consent is not an accepted justification. Consent was excluded to protect vulnerable TFWs who may not have (or not believe they have) the right to refuse a proposed change to the terms or conditions of employment. However, the exclusion of consent from the list of acceptable justifications does not only apply to workers who are vulnerable. ESDC cannot consider proof of consent as a justification for a failure to provide “substantially the same” terms of employment, even where there is no power imbalance and it is clear the TFW freely supports the variation.

Be careful

So where does that leave Canadian employers using the TFWP? If you want to continue to be able to use the program, proceed very carefully. You don’t want to find your company or industry on the front page of the newspaper, as has been the case for several others.

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  Thora Sigurdson
  Thora Sigurdson practices in the area of employment law (non-union) and business immigration. In the employment area, Thora advises employers on hiring employees, privacy matters, disability management, decisions to terminate employment, severance packages and all other employment-related matters. Her immigration practice focuses on assisting employers bringing executives, senior managers and specially skilled workers into Canada from around the world. Thora has prepared and obtained temporary work permits under NAFTA, GATS and the Immigration and Refugee Protection Act, and applications for Labour Market Opinions from Human Resources and Skills Development Canada. Thora has presented papers and led seminars on employment law, human rights issues, and Canada immigration.