BY WILLIAM MACINTOSH
IN late December Immigration Minister Chris Alexander and Employment Minister Jason Kenney announced changes to the Immigration and Refugee Protection Regulations that give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.
Effective December 31, the changes received formal approval from the federal cabinet on December 12 following consultation with interested parties after proposed changes were announced last June. The changes are part of several reforms to the temporary foreign worker program announced after public criticism arising from several stories early last year.
One news report revealed the Royal Bank had replaced dozens of Canadian workers with foreign workers, as part of a plan to outsource jobs abroad. In another story, a mining company successfully fought a court challenge by a Canadian union against a government decision allowing it to hire several hundred foreign workers for a proposed mine in British Columbia.
The new rules have received criticism from various groups. Some complain about additional burdens placed on employers, while another complaint concerned the failure of the government to implement one of the proposals it floated last June.
Employers must now retain any document relating to hiring and employing a foreign worker for six years. During that period officials may enter the workplace and interview foreign workers or demand documents, without a warrant, to determine if the employer has complied with the immigration rules and the conditions set out in the labour market opinion (LMO) which gave the employer permission to hire the foreign workers. An employer must show that all information provided for the LMO is accurate and must make reasonable efforts to provide a workplace that is free of abuse.
Inspections may be carried out for six years after a foreign worker is employed. Employers who fail to comply with the rules or the LMO will get a chance to justify and correct its actions. If the employer is found in non-compliance, they will be ineligible to hire foreign workers for two years and will have their name published on a public ban list. Pending applications will receive a negative LMO and outstanding LMOs may be revoked.
THE Saskatchewan Federation of Labour expressed concern about the government’s decision to drop a proposed rule that would have banned employers convicted of certain serious crimes from hiring foreign workers. Federal President Larry Hubich said, “They’ve given us no confidence that they’re going to enforce what they have there now.”
In response, the government justified the proposal as being “too rigid and cumbersome.” The proposal would have cost employers more money and there are issues about receiving timely criminal record checks. The government will rely upon the threat of compliance searches to deter employers from abusing foreign workers. Whether that is effective will depend on how much money the government commits to its compliance measures.
The new rules apply to all employers, including farms and agricultural employers, fast food outlets and restaurants, as well as to employers hiring skilled and specialized workers.
The government’s response to public criticism of the temporary foreign worker program has focused on its efforts to create jobs, economic growth and long-term prosperity. Kenney, in announcing the changes, stated the government was “taking action to ensure that Canadians are always first in line for available jobs.” However, the changes the government states strengthen criteria for assessing LMO and work permit applications are minor in substance and to not appear to make it much harder for an employer to justify the need to hire a foreign worker.
As Alexander stated in the announcement, “one of the goals of the temporary foreign worker program is to deal with labour shortages on a temporary basis, and these reforms will help ensure that the program is used as intended.” Stories still get published about forecasts of worker shortages in Canada.
The government is proposing a new “expression of interest” system to select qualified immigrants for permanent residence to meet employer needs. That system will not be in place until 2015. Until then the government and employers will continue to rely on the temporary foreign worker program to meet immediate employment needs.
Continued conflict between the federal government and provincial governments over job training funding also raises concerns about the ability to train Canadians to fill worker shortages. Unless worker shortages decrease, many employers will continue to seek approval to hire foreign workers.
William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at firstname.lastname@example.org.