The requirements of the Temporary Foreign Worker Program (TFWP) in Canada have once again changed. Employers must be aware of the new requirements of the TFWP, the importance of compliance, and the more serious consequences of failing to do so.
These revisions are the latest reforms arising from the aftermath of public scandals involving alleged mistreatment of foreign nationals working in Canada. These revisions:
– impose new conditions on employers;
– provide Employment and Social Development Canada (ESDC) with the authority to conduct random inspections without search warrants, and
– allow ESDC to suspend, revoke or refuse to process an employer’s Labour Market Opinion (LMO) for public policy considerations.
In addition to providing increased protections for foreign workers, the reforms also seek to encourage employers to hire Canadians in preference to foreign workers where possible.
Employers’ new duties
The new duties imposed on employers arise from changes made to the Immigration and Refugee Protection Regulations and new Ministerial Instructions issued by ESDC, both of which came into effect on December 31, 2013.
These duties include a new requirement to retain any document which relates to the employer’s compliance with the terms of the TFWP for a period of six years beginning on the day the work permit is issued to the foreign worker, and to prove the information in the document was accurate.
Employers must now also make reasonable efforts to provide a workplace free of abuse – something which employers ought to be doing in any event under occupational health and safety and human rights laws – and must hire or train, or make reasonable efforts to hire or train Canadians or permanent residents.
LMO applications will also include modified questions and additional attestations.
Inspections and penalties
Perhaps the most controversial aspect of the reforms is that ESDC will now be able to conduct random warrantless inspections for a period of six years after the day the work permit was issued to the foreign worker. During an inspection, the inspector will be able to interview both the foreign worker and other employees of the employer.
While some have praised the ability to conduct warrantless inspections as a way to reduce the risk of foreign workers being taken advantage of, many are concerned with the vagueness surrounding what would prompt a warrantless investigation. According to Citizenship and Immigration Canada (CIC), a workplace inspection may be conducted if “there is reason to suspect” an employer is not complying with the TFWP. However, what exactly will constitute a “reason to suspect” is unclear.
If an inspector concludes an employer was non-compliant, the employer may be deemed ineligible to hire foreign workers for at least two years, have its name, address and period of ineligibility published on a public ban list, be issued negative LMO’s on any pending LMO applications, and have previously issued LMO’s revoked.