Changes to the Temporary Foreign Worker Program

On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations (IRPR) came into force.  Combined with new Ministerial Instructions issued by the Minister of Employment and Social Development Canada (ESDC), there are a number of new and important changes to the Temporary Foreign Worker Program those employers seeking a positive Labour Market Opinion (LMO) need to be aware of.

1.  New LMO conditions imposed on employers

Effective December 31, 2013, employers with a positive LMO from ESDC/Service Canada are required to retain any document that relates to compliance with the LMO’s conditions for a period of six years, beginning on the first day of the period of employment for which the work permit was issued.  For the same period, employers must also be able to demonstrate the accuracy of any information provided in an LMO application, including all advertising and recruitment efforts.

Employers are required to make reasonable efforts to provide a workplace that is free of abuse.  Employers are also required to hire or train, or make reasonable efforts to hire or train, Canadians or permanent residents, if that was one of the factors that led to the issuance of the work permit.

There is a NEW LMO application form and any old forms received on or after December 31, 2013 will not be processed.

2. New authority to conduct inspections

ESDC now has the authority to conduct workplace inspections without a warrant to verify compliance with immigration and employment requirements for LMO-based work permits.  The inspection period is for 6 years, starting on the first day of employment under an LMO-based work permit.  These are different from the employer compliance review (ECR) that occurs in the context of the assessment of an LMO application.

As part of the inspection, employers will be required to demonstrate compliance with the IRPR and the conditions of the LMO.  ESDC/Service Canada will have the authority to verify compliance by:

  • Requiring employers to provide documents that relate to compliance
  • Conduct on-site inspections without a warrant (private dwellings are excluded, and in most cases, notice will be given to the employer); and
  • Interview foreign workers or Canadian employees, by consent

3. Penalties for non-compliance 

If an employer is found to be non-compliant, the employer will have the opportunity to provide justification and to take corrective action, where applicable, before a determination of non-compliance is made.

If a determination of non-compliance is made, an employer will be deemed ineligible to hire foreign workers for a period of 2 years.  Employers will have their name, address, and period of ineligibility published on a public ban list, be issued negative LMOs on any pending applications, and may have previously issued LMOs revoked.

4. Changes to ECRs

ECRs, conducted as part of the LMO assessment at the time of application, have also changed.  The major change increases the period of time that ESDC may review an employer’s compliance regarding wages, working conditions and occupation from 2 to 6 years.

5. LMO bars based on government public policy

ESDC/Service Canada may refuse to process LMO applications based on public policy considerations the government may choose to introduce for selected sectors, regions, or occupational groups.  ESDC is required to publish any information related to any decisions made by the government regarding refusal to process LMO application for any sectors, regions, or occupations.

For more information, please contact www.selkirklaw.ca.

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