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New Canadian laws will affect temporary foreign workers

Wednesday, July 09, 2014    

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Dear Mr Brown:

I am a Jamaican who is in Canada on the Temporary Foreign Worker programme and I currently work in the fast food service industry. Recently, there was a moratorium, which I understand has ended. Could you please advise me how the new changes will affect my status going forward? I await your urgent response.

— HA

Dear HA:

The Government of Canada announced a significant overhaul of the Temporary Foreign Worker Programme (TFWP) on June 20, 2014. The overhaul attempts to balance both the rights of Canadian workers and foreign workers in responding to labour shortage demands in Canada. Currently, the number of temporary foreign workers has surpassed the number of permanent residents Canada accepts each year. As a result, the government is expected to reduce the overall number of temporary foreign workers.

Reforms

The hiring of foreign workers by Canadian employers is supposed to be the last resort to address labour demands. As such, Canadians who are able and willing to work must be given the opportunity. It is only if there are legitimate labour shortages in Canada that employers are to hire foreign workers. However, due to the issue of many Canadian employers attempting to circumvent the TFWP rules by hiring foreign workers for lower wages, rather than Canadian workers, the reforms were made in an attempt to prevent abuse and penalise employers who abuse the programme.

In response to your question, some of the material reforms of the TFWP programme will include:

* Preventing employers from hiring low-wage temporary foreign workers in regions where unemployment is high (over six per cent);

* Placing a cap on the number of workers employers can hire;

* More stringent screening process for employers to prove they need to hire a foreign worker;

* An increase in the number of compliance inspections in the workplace;

* An increase in the fines of up to C$100,000 for employers who abuse the programme;

* An increase in the application fee to C$1,000 (from C$275) that employers must pay per requested worker;

* An increase in funding for the Canada Border Services Agency so it can pursue more criminal investigations;

* The publication of the names of employers who have been given the green light to hire temporary foreign workers to increase transparency;

* A reduction in the amount of time a temporary foreign worker can be employed in Canada, from four years to two years;

* Requiring companies to reapply each year to hire low-wage Temporary Foreign Workers, instead of every two years;

* Requiring employers who hire Temporary Foreign Workers to promise not to lay off any Canadian workers or cut their hours, and the employers must advise the government how many Canadians applied and were interviewed for jobs, along with the reason Canadians were not hired;

* The introduction of new fees for some programmes, which includes: A 'compliance fee' of $230 to be charged to certain employers, and a 'privilege fee' of C$100, to be charged to individuals who receive open work permits.

Labour Market Impact Assessment (LMIA)

The approval for work permits will come in the form of a Labour Market Impact Assessment (LMIA), which was formally known as a Labour Market Opinion (LMO). It will require government approval of jobs based on evidence provided by employers of the need to hire a non-Canadian worker. Employers requesting an LMIA will be required to provide detailed recruitment information, as well as plans for transitioning their temporary job to suit that of a Canadian citizen or permanent resident.

Accordingly, many Canadian employers will be required to seek a positive LMIA in order to bring a foreign worker to Canada. The former LMO process classified workers on the basis of their type of job in Canada. The LMIA will place less emphasis on a worker's occupation, and instead classify them according to the wages they will earn in Canada.

On the one hand, workers offered a salary that meets or exceeds the median wage in the province where they will work will be considered 'high-wage'. On the other hand, workers who will make less than the provincial median wage will be considered 'low-wage'. Effective immediately, low-wage workers can make up no more than 10 per cent of an employer's workforce. However, an exception is made for employers with less than 10 workers.

Two Streams

The Temporary Foreign Worker Programme will now be divided into two programmes:

1. The TFWP will require a positive LMIA.

2. The International Mobility Program will not require a positive LMIA. Certain foreign worker streams are exempt from the requirement to obtain an LMIA which are based on Canada's reciprocal employment agreements with other countries or streams that facilitate the entry of workers who will significantly benefit the Canadian economy.

For more information, please visit jamaica2canada.com

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of jamaica2canada.com—  a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com

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