On October 1, 2009, Citizenship and Immigration Canada (“CIC”) announced proposed amendments to the Immigration and Refugee Protection Regulations (“Regulations”) to minimize the potential exploitation of the Temporary Foreign Worker Program (“TFWP”) by employers or third party agents and to better protect temporary foreign workers who work in Canada. The proposed amendments include:
- a more rigorous assessment of the genuineness of the job offer;
- a two-year prohibition from hiring a temporary foreign worker for employers found to have provided significantly different wages, working conditions or occupations than promised; and
- limits to the length of a worker’s stay in Canada before returning home.
Temporary foreign workers (“TFWs”) have been an important source of labour supply in the Canadian labour market, particularly over the last five years. With the significant increase in TFWs, CIC has become increasingly aware of instances where employers, or third-party agents working on their behalf, are failing to abide by commitments made to workers. Currently, no provisions exist in the Regulations to hold employers accountable for their actions regarding TFWs. Breaches that could occur include employers paying TFWs less than promised, inadequate accommodations for some TFWs, and third-party agents charging fees to workers in contravention of provincial/territorial legislation.
Over the past five years, a series of non-regulatory measures have focused on administrative improvements and facilitative measures aimed at providing better service to employers and TFWs in the form of streamlined applications, and at improving service standards in regions with the highest demand. However, regulatory changes are required to support and strengthen existing measures to improve employer compliance and increase protections for TFWs. Accordingly, CIC has proposed a set of amendments that would:
- Establish a set of factors to guide the assessment of the genuineness of an employer’s offer of employment to a TFW. One of the factors would be past compliance of the employer, and of any recruiter acting on the employer’s behalf, with federal and provincial laws that regulate employment, or the recruitment of employees. Currently, the Regulations do not set out any factors on which the genuineness assessment is to be made;
- In the case of a request for a live-in caregiver, establish certain employer-related requirements, including the need for the live-in caregiver, the provision of adequate accommodation, and the ability to pay the wages offered;
- Make an employer ineligible to access the TFWP for a period of two years where the employer has been found to have provided significantly different wages, working conditions or an occupation than what was offered during the previous employment of a TFW. The assessment would be undertaken at the time of a new labour market opinion request or work permit application, and would consider any employment of TFWs in the two years preceding the application or request;
- Provide for the publication of a list with the names, addresses and period of ineligibility of employers who are not eligible to access the TFWP for the reasons noted above on CIC’s website;
- Establish a limit of a cumulative duration of four years of work for TFWs, followed by a period of at least six years in which they would not be authorized to work in Canada. The Regulations would provide for exemptions for certain workers, including those who intend to perform work pursuant to international agreements. This provision would signal clearly to both workers and employers that the purpose of the TFWP is to address temporary labour shortages, as well as encourage the use of appropriate programs and pathways to permanent residency in order to respond to the long-term labour needs of employers; and
- Introduce a requirement that labour market opinions indicate a period of time during which they are in effect. If a TFW does not apply for a work permit within that time period, the employer must request a new labour market opinion.
Citizenship, Immigration and Multiculturalism Minister Jason Kenney said that these regulatory changes are the result of extensive consultations and address the most significant concerns identified through that process. “Temporary foreign workers play an important role in the Canadian economy,” the Minister said. “We have a duty to them, employers and all Canadians, to ensure that the program is fair and equitable.”