The Government of Canada is implementing much tougher rules for the Temporary Foreign Worker Program starting April 1, 2011. There are two main changes:
A) Serious consequences of non-compliance by employer
The new rules are designed to ensure that all employers strictly comply with all policies of the TFW program and treat their foreign workers fairly and in accordance with the terms of hire. Employers who fail to comply with the terms of their LMO or the work permit will be penalized by being denied use of the TFW program for two years. Plus, the employer’s name will be posted by the Government of Canada on a public Internet blacklist hosted as being unable to hire foreign workers for a period of two years. This is intended to give notice to all potential foreign workers that they will not be approved for that employer.
Most employers are responsible, and treat their temporary foreign workers fairly and in accordance with the law. However, there are too many cases of abuse and thus the Government is taking stronger steps to drive home to employers the importance of complying with all terms and conditions of the LMO and work permit.
As an employer, you cannot change the occupation, wages or working conditions set out in your offer of employment filed with HRSDC to get the LMO. If you do, you must justify the reasons next time you apply for an LMO. There are very few reasons that are acceptable to HRSDC and CIC. One, for example, is a change in law or a change in the collective agreement.
We have seen cases in the past where some employers permit the employee to do different work, or send the employee to another province to work for a few days – these things are not permitted and can jeopardize your ability to qualify for foreign workers in the future.
If there is an unintended error, such as a payroll error, that will not be held against the employer if the error was made in good faith and was immediately corrected when it came to light, and the worker was compensated.
Any lay-offs of foreign workers will need to be explained if more workers are sought in future. No measures, even in a severe downturn, taken to deal with the workforce may disproportionately affect the foreign workers.
The issue of compliance will come up when you next apply for an LMO. The officer shall take into account past compliance of the employer with all federal laws and all provincial laws regarding employment. This includes following the LMO, the employment contract, the work permit and all labour laws. Any recruiter used by the employer must be in compliance with all laws as well.
B) Four year maximum on temporary work permits
The second major change is to put a cap on the length of time a person can be a temporary foreign worker.
Most foreign workers will not be able to get work permits for more than 4 years in total, starting April 1, 2011. In the past, it has been possible to renew work permits indefinitely, and it was particularly possible to renew work permits when the worker applied for permanent residence and was waiting for their paperwork to be processed. This will no longer be possible, regardless of whether the worker needs an LMO. In other words, if a worker who has worked four years after April 1, 2011 (work before that is not counted) they cannot get a renewal, even if they are awaiting permanent residence through AINP or as a federal skilled worker.
The four years doesn’t need to be continuous. So a worker who worked for one year, returned home and was re-hired after a break for a second year can still only accumulate a total of four years of work on temporary worker status. Only after a break of 4 years does the worker become eligible for a work permit again. There are some exceptions, including NAFTA and seasonal agricultural workers, but they are relatively few.
This means planning ahead. If you wish to keep your foreign workers without interruption in their employment, it will be necessary for them to become permanent residents within four years of arrival. Current processing times after applying can be 1-2 years in the smoothest of cases, and any glitches will mean delays. It will be very unfortunate if your worker, here for four years already, must leave their employment with you, and indeed leave the country and await an uncertain visa process back home before returning.
Vermax can help you plan ahead to ensure as best possible the continuity of those workers you wish to employ permanently.
Written by: Peter Veress