Category Archives: Labour Market Opinion

Revisions to Canada’s Temporary Foreign Worker Program

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Recent controversy over one of Canada’s largest banks’ inappropriate use of the temporary foreign worker program is having further fallout. Yesterday, Canada’s  Minister of Human Resources and Skills Development and of Citizenship, Immigration and Multiculturalism yesterday announced the following immediate and future modifications to the program:

  • Immediate removal of previously implemented provisions allowing wage flexibility, thereby requiring all employers to pay foreign workers at published prevailing wages;
  • Immediate temporary suspension of the Accelerated Labour Market Opinion application stream;
  • Increase the Government of Canada’s authority to suspend and revoke work permits and Labour Market Opinions (LMOs) in cases of abuse;
  • Add questions to LMO application forms to detect outsourcing of Canadian jobs;
  • Ensure that employers who rely on foreign workers have a training plan to transition to Canadian workers;
  • Introduce application fees for employers for the processing of LMOs and increase the fees for work permits; and
  • Allow English and French as the only languages that can be used as a job requirement in a LMO application.

These are dramatic changes that will affect all employers and foreign workers.

Revisions to Recruiting Requirements for Labour Market Opinions

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Human Resources and Skills Development Canada (HRSDC) has recently revised its recruiting requirements for all occupations. This revisions falls close on the heels of a recent controversy involving this agency and one of Canada’s biggest banks (acting in its capacity as one of Canada’s larger employers).

At this time, the revisions serve to more precisely define methods of recruiting that are permissible. The provision that employers may recruit in a manner consistent with practices in its industry have been amended with specific requirements of placement of ads as follows:

  • on recognized Internet employment sites such as Monster, Workopolis (All skill classifications);
  • on the website of a professional association (NOC 0, A);
  • in national newspapers, professional journals or newsletters (NOC 0, A);

  • in local and regional newspapers, newsletters (NOC B, C, D);

  • in ethnic newspapers and Internet sites (NOC B, C, D);

  • in local stores, places of worship, community resource centres (NOC B, C, D);

  • in local and regional employment centres (NOC B, C, D).

Depending on the classification of the occupation, placement of ads on government job sites such as Service Canada’s Job Bank remain allowable alternatives or supplemental modes of recruiting. Removed, therefore, is the possibility of using methods such as recruiting agencies, social media, corporate web sites, and other common methods of recruiting. Also, there will likely be some debate as to what constitutes a recognized internet employment site, as employers now commonly use classified ad sites as part of their efforts.

Proposed Changes to Temporary Foreign Worker Program

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Naomi Alboim, an adjunct professor at Queen’s University’s School of Policy Studies, recently stated that Canada is experiencing ‘unprecedented’ changes to immigration policy, and there is more recent evidence to support this. On the heels of the 2011 revision to the legislation governing temporary foreign workers in Canada, the Minister has recently announced that upcoming rules will make the process of employing foreign workers more complex.

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Inserted into the 2013 Federal Budget are modifications to certain immigration programs, including a section on “Reforming the Temporary Foreign Worker Program.” The immigration department looks to change the present requirements by:

1. Increasing the duration and scope of recruitment that Canadian employers must sometimes undertake prior to being able to obtain a temporary work permit for non-Canadians. There will certainly remain situations in which recruitment will not be mandatory, including situation-specific exemptions and international treaties.

2. Promoting the need to train Canadians to assume the roles of foreign workers over time. This could, of course, include those situations in which the foreign worker becomes a Canadian permanent resident following the issuance of a work permit.

3. Reducing the capacity to use language requirements as a requirement of an occupation in order to facilitate the issuance of a work permit.

4. Introduction of application fees for filing a Labour Market Opinion request.

The proposals are all reasonable and will not hurt employers, Canadian or foreign, in those cases in which the admission of temporary foreign workers are genuinely needed. These sorts of changes, however, will put increased focus on ensuring that the strongest possible case is pursed from the outset and presented at the time of submission.

Agricultural Stream Labour Market Opinions

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Human Resources and Skills Development Canada today announced changes to the Agricultural Stream of the Pilot Project for Occupations Requiring Lower Levels of Formal Training. The program, now referred to simply as the Agricultural Stream, was formerly limited to lower skilled (NOC C, D) primary agricultural occupations in specific commodities (see below), the program has been expanded to now include occupations of any skill classification.

Other than specific exclusions to certain occupations (i.e., agronomists, agricultural economists, landscape architecture, marketing activities of commission merchants and co-operative associations, provision of feed lot services, preparation of vegetable fibres for textile use, service activities to promote commercial hunting and trapping, veterinary activities), Canadian employers seeking to hire foreign workers in any NOC classification (i.e., NOC 0, A, B, C, D) may now opt to use the Agricultural Stream in addition to the Stream for Higher Skilled Occupations and the Stream for Occupations Requiring Lower Levels of Formal training, as applicable. As the prevailing wage and advertising requirements may differ between these programs, proper selection could offer an advantage to such employers.

The following commodities remain eligible in the Agricultural Stream at present:

  • apiary products
  • fruits, vegetables (excluding legumes), flowers, Christmas trees (including on-farm canning/processing, greenhouses/nurseries)
  • pedigreed canola seed
  • sod
  • tobacco
  • bovine
  • dairy
  • duck
  • horse
  • mink
  • poultry
  • sheep
  • swine

Changes to Labour Market Opinion Wage Requirements

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Human Resources and Skills Development Canada (HRSDC) has introduced improvements to the Foreign Worker Program that removes some of the previous rigidity concerning wage requirements of foreign worker applications.

Historically, employers seeking the admission of a foreign worker via a Labour Market Opinion were required to pay a prevailing wage, which represents the average wage being (as determined by HRSDC) offered to Canadians on a regional basis. However differences in the methods of calculation, and from employer to employer, meant that – in some cases – Canadian companies were forced to offer foreign workers more than the Canadian workers already employed by that company at the same location. This is obviously unfair to Canadians, and the current changes address this.

Going forward, employers with Canadian employees that are earning less than the published prevailing wages for a given occupation may offer foreign workers less than that prevailing wage as well. Foreign workers in these circumstances may be offered up to 15% less than the prevailing wage for higher skill occupations, and 5% less than the prevailing wage for lower skill occupations. Such an employer must demonstrate that their Canadian employees in the same job and at the same location do, in fact, earn the same as is being offered to the foreign worker.

These provisions are not presently applicable to the Seasonal Agricultural Worker Program or the Live in Caregiver program.

Accelerated Labour Market Opinion

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HRSDC and Service Canada have enacted a program allowing for the accelerated processing of certain Labour Market Opinion applications. The program, entitled the Accelerated Labour Market Opinion (A-LMO) Initiative, allows eligible employers (excluding those in the province of Quebec at present) seeking the admission of higher skill workers (i.e., National Occupational Classification (NOC) levels 0 or A) to benefit from reduced paperwork and faster processing times, while at the same time enhancing the integrity of the Temporary Foreign Worker Program (TFWP).

Some Background

Service Canada is the service delivery arm of the Canadian Ministry of Human Resources and Development Canada. Through the TFWP, this body is tasked by Citizenship and Immigration Canada to assess the impact of the admission of a foreign worker, other than a foreign worker eligible for exemption. This applies to the majority of candidates seeking to engage in temporary work in Canada; exemptions are based on either International Treaties or Canadian Interests.

A Labour Market Opinion is rendered by Service Canada if, after reviewing an application from an employer, they are satisfied that the admission of the foreign worker will not have an adverse effect on the Canadian labour market.

Accelerated Labour Market Opinion Initiative

The A-LMO continues to assess most of the criteria fundamental to a traditional LMO approval. As such, Service Canada will continue to review these cases to determine that the job offer is genuine, that the wage offered to the foreign worker is consistent with that needed to attract and retain Canadians, and whether or not the job offer fills a labour shortage. The program does not, in its current form, address those situations in which the employment of a foreign worker will directly create or retain Canadian employment, or where there is a transfer of knowledge or skills to Canadians. In those cases in which admission is not sought on the basis of a labour shortage, it is expected that the case will be processed in the normal streams and subject to the requirements of such.

Employers will need to meet certain requirements to be eligible in the A-LMO program:

  1. They will need to be the recipient of one or more positive Labour Market Opinion Confirmations within the two years prior to registering;
  2. They will need to consent to post A-LMO Compliance reviews; and
  3. They will not have been the subject of any investigation, infraction, or serious complaint, and do not have any unresolved violations or contraventions under employment and recruiting legislation.

An eligible employer will be able to pursue an A-LMO application if the offer to the foreign worker meets certain requirements:

  1. They will need to agree to all attestations that are part of the A-LMO application process;
  2. The wage offered to the foreign worker will have to be consistent with policies governing prevailing wage; and
  3. They will have met minimum Canadian recruiting requirements prior to offering the position to the foreign worker and submitting the A-LMO application.
  4. They are offering employment in a Management, Professional, or Technical occupation (i.e., NOC 0 or A), other than an occupation in film and entertainment or agriculture sectors.

Compliance

As part of the application process, the employer will agree to potentially undergo Compliance review following the A-LMO approval. It is expected that 18% of A-LMO approvals will be subsequently and randomly selected to undergo this review process. That number is certainly high enough to ensure that employers adhere to requirements of the program and LMOs in general, as there are consequences to the employer and/or present and future LMOs and LMO applications.

A compliance review involves Service Canada’s assessment of whether or not the employer has provided the foreign worker with “substantially the same” wage and working conditions as was offered during a prior A-LMO or LMO application in the two previous years including:

  • that the employer provided the foreign worker the same wages and working conditions as those offered to Canadians in the same occupation and location;
  • that employer can document performance of the minimum recruitment efforts required;
  • that the employment of a foreign worker did fill a Canadian labour shortage;
  • that the employment of a TFW did not adversely impact the outcome of a labour dispute; and
  • that the employer agrees to abide by the relevant laws regulating employment and recruitment.

Facilitated Processing of IT Workers Visa Program Terminated in BC

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Effective for cases submitted on January 1 2012 and thereafter, work in the province of British Columbia is no longer subject to the Facilitated Processing of Information Technology Workers Program. Other than Quebec, all other provinces in Canada terminated the same program in September 2010.

Citizenship and Immigration Canada will therefore require Labour Market Opinions (i.e., Confirmations) for temporary work permit applications which had been earlier subject to the Facilitated Processing of Information Technology Workers provisions. The only exception at present is for cases in which the work is in the province of Quebec, where the program remains active for an undefined period; it should be noted that those cases are however subject to the requirement of a Certificat d’acceptation du Québec prior to seeking the work permit.

The Facilitated Processing of Information Technology Workers program was a collaboration between Citizenship and Immigration Canada (CIC), Human Resources and Skills Development Canada (HRSDC), and the Software Human Resources Council (now defunct). It was intended to expedite the admission of foreign workers in certain defined information technology occupations, primarily those in software development, by allowing admission in the absence of a Confirmation Letter from HRSDC. Those eligible were deemed to be admissible under what was termed a National Confirmation; i.e., no negative labour market impact was automatically determined by HRSDC. The program was enacted at a time, in the late 1990’s, when there was a perceived critical shortage of such IT professionals.

HRSDC issued notice in 2010 that this program would be terminated on September 30 2010, with the exception of the provinces of British Columbia and Quebec. Quebec and BC were the only provinces to extend the program at that time. Quebec did so for an undefined duration, and BC did so for incremental periods. As BC has now terminated the program, only Quebec is still subject to these provisions; all other cases must first obtain a LMO Confirmation prior to proceeding with the work permit application. Any case submitted for work in the province of BC prior to January 1 2012 will be processed to its conclusion and could be eligible for a work permit of up to one year from the date of its issuance.

Removal of Name in Labour Market Opinion

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Due to privacy concerns, Service Canada (HRSDC) Labour Market Opinion (LMO) Confirmations and Annexes will no longer necessarily carry the name of the foreign worker approved therein. In some cases, where privacy concerns are not an issue, officials may include the name of the foreign worker in the notes in the case, this is not a standardized practice.

These changes do not effect the process of seeking the LMO. However, in cases in which LMOs are granted for multiple workers, it is necessary to be careful to issue the correct Confirmation letter and annex to each such worker to prevent problems when seeking the work permit.