21 Changes to the temporary foreign worker program
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By: Tiya

September 26th, 2016

21 Changes to the temporary foreign worker program

The Parliamentary committee through the House of Commons have drawn up a report of significant changes and recommendations to Canada’s Temporary Foreign Worker Program (TFWP). The recommendations include; easier pathways to permanent residence for foreign workers and simpler ways for businesses to respond to shortages in the labour market.

The committee has also been asked to remove the rule that says a foreign worker’s work permit must be tied to one particular employer as that this gives a chance to power abuse and there have been testimonies to that effect. However, employers who have a good history of using the program appropriately will be placed in a ‘Trusted Employer Program’ and they will have first priority in the processing of their applications for Labour Market Impact Assessment (LMIA).The recommendations are also in support of removing the rule that forces some workers in Canada to leave the country after four years.

As soon as the report on the proposed changes to the TFWP were published, the minister of immigration, John McCullum, and minister of Employment, Workforce Development and Labour, MaryAnn Mihychuk, have announced that they will respond to the report within 120 days as stipulated by the legislature. The last major changes to the LMIA were done as recently as June 2014 by the then conservative government, and the new proposed changes to the LMIA are expected to be confirmed as the incumbent Liberal government holds a majority in the House of Commons.

Labour Market Impact Assessment Application fee

The committee heard that the C$1,000 LMIA application fee made it difficult for some businesses, mostly small businesses to remain competitive. For families needing to hire caregivers, the fee has been a financial burden and the committees recommend as follows:

  1. The ESDC and IRCC take immediate steps to extend work permits for caregivers in the low- wage stream from one to two years.

Processing and timelines regarding LMIA applications

The committee agreed that there is a need to standardise LMIA applications and make them quicker to process, as the length and time it takes to process the applications affects companies’ productivity and also impacts on foreign workers whose work permit renewals are dependent on the LMIA. Therefore, the committee recommends as follows:

  1. That the ESDC reviews the LMIA application process, in order to increase speed and efficiency, and that the review should take into consideration the National Occupational Classification (NOC) codes as well as the adequate allocation of resources towards training and meeting service standards.
  2. The ESDC implements Trusted Employer Program with the aim of reducing the timelines for employers who have demonstrated a trustworthiness in their use of the TFWP.
  3. The ESDC review the policy with respect to foreign faculty members currently employed or seeking employment with a recognised Canadian academic institution, whose current employment is dependent on the LMIA, with a view to providing exemptions and accommodation for this class of foreign nationals.
  4. That the TFWP allow minor modifications to contracts between employers and employees with regard to the nature of work and increases in wages if both parties consent, and that the changes do not disadvantage the worker and ESDC is timely informed on the changes in short order. The changes must, however, not violate the spirit of the job description.

TFWP streams

Currently, the TFWP comprises of a number of streams, each with its own specific set of requirements. Witnesses that appeared before the committee suggested that the current structure of the TFWP needs to be changed as the stream-specific do not meet the needs of the different industries. The committee acknowledges that the current program streams do not meet the current Canadian Labour market needs and recommends as follows:

  1. The ESDC should appropriately restructure the TFWP in such a way that it achieves better overall economic and social benefits for Canadians and program participants. The ESDC re-establishes the TFWP into more specific area programs and streams that adequately reflect the true situation of the Labour market in Canada.
  2. That the IRCC studies the impacts of expanding the definition of primary agriculture as found in the Immigration and Refugee Protection Regulation.
  3. That the ESDC and IRCC seek to review and improve mechanisms in which migrant workers are brought into Canada to fill both temporary and permanent positions, preventing the use of the TFWP to satisfy permanent labour needs.

Transition plans

Currently, the employers who are looking to employ high-wage workers must submit transition plans along with their LMIA application to ensure that they are taking steps to reduce their overreliance on foreign workers over time. High-wage workers are those employees that earn above the median hourly wage in a particular region, therefore transition plans are there to ensure that these employers are seeking foreign worker to meet the purpose of the program.

Many of the witnesses who appeared before the committee expressed concern that the requirement of a transition plan is not realistic when there is a proven shortage of high-skilled workers that cannot be accessed in the local labour market in the short term. Other stakeholders were of the view that transition plans should be discarded altogether, however, the committee recommends as follows:

  1. That the ESDC provide an exemption on the transition plan requirement for five percent of the businesses workforce that consists of high-wage temporary foreign workers.
  2. That the ESDC work to implement measures to ensure that appropriate training and education resources are allocated in those fields that are likely to have a shortage in labour and skills. Allow for appropriate apprenticeship targets to be included as part of the transition plan for employers to ensure they meet their recruitment and training obligations for Canadians.
  3. That the ESDC, businesses, and stakeholders continue to monitor labour market needs as to ensure skills, training, and educational output match Canada’s current and future employment needs and that the reliance on foreign workers is reduced, and invest in better collection and retention of labour market information in Canada to adequately assess labour market needs.

Cap on the proportion of the workforce that consists of low-wage temporary foreign workers

Currently, employers with 10 or more employees applying for a new LMIA are limited to 10 percent of the proportion of their workforce that can also include low-wage temporary foreign workers, the introduction of this limit has negatively affected some businesses production output. The committee recommends as follows:

  1. That ESDC ensures that the limit on the percentage of temporary foreign workers a business can employ at a given time, be set at a minimum of 20 percent, and further review sector and geographic considerations.

Certain low-wage positions in the Accommodation, Food Services, and Retail Trade Sectors

As of now, the LMIAs in regards to other low-wage positions in regions with a six percent or higher unemployment rate will not be processed. However, witnesses told the committee that the available labour market data is very high level and are not suitable to determining labour market conditions in smaller communities within the broader geographical region. The committee recommends as follows:

  1. That the ESDC take immediate steps to improve the collection of labour market data and review the geographic zones used for determining unemployment rates, with a view to aligning the labour market conditions of more localized economies with the requirements of the TFWP.

Employer-specific work permits

Temporary foreign workers employed in the low-wage stream and the Seasonal Agricultural Worker Program (SAWP), have regularly complained that the current employer-specific work permits that tie a particular worker to one employer lead to power imbalance and are prone to abuse. The committee recommends that:

  1. That ESDC takes immediate measures to remove the requirement for an employer-specific work permit, as long as it takes appropriate steps to ensure foreign labour is only utilized within the provisions of the LMIA process, including sector and geographical restrictions.
  2. That the IRCC provide multiple entry visas to temporary foreign workers employed in seasonal work, with the objective of allowing these individuals greater mobility during off-seasons, that when a work visa is extended the multiple 32 entry visa must also be extended so that workers can continue to enter and leave Canada.

Pathways to permanent residence to all immigrant workers

The committee accepts that all immigrant workers, especially those that are filling long-term labour needs and are fully integrated into Canadian society, should enjoy easier pathways to permanent residence status. The committee, therefore, recommends as follows:

  1. That the IRCC review the current pathways to permanent residence for all temporary workers, with a view to facilitate access to permanent residence for migrant workers who have integrated into Canadian society and are filling a permanent labour market need. The IRCC should also allocate adequate resources to allow for the timely processing of permanent residence applications for those migrant workers that are hired under the TFWP.
  2. That IRCC work in provinces, territories, and other government departments to increase information sharing that will create more harmonisation with immigration and nominee programs to function in collaboration with one another. These efforts should aim to reduce duplication of work benefitting both the applicants and government.
  3. That the IRCC amend the Immigration and Refugee Protection Regulations to remove the relevant provisions with respect to the “cumulative duration”, rule which currently makes certain workers ineligible for new work permits if they have been working in Canada for four years and bans them from applying for a new one for an additional four years.
  4. That the IRCC reform the Express Entry immigration selection system to allow for fixed-term employment contracts to be allocated the same number of points as permanent work contracts, where there is a strong likelihood of continued employment.

Monitoring and enforcement

The committee has also noticed that monitoring and enforcement is still below the expected levels despite recent steps taken to improve them: The committee recommends as follows:

  1. That ESDC in collaboration with other stakeholders review current monitoring and enforcement mechanisms, with the objective of addressing gaps in employer compliance and the protection of migrant workers’ rights. In addition, an effort should be made to move away from a compliant-driven model program enforcement. The review is to take the following steps into consideration:
  • Increase in resource and information sharing between provinces and territories
  • Increase the frequency of on-site inspections and ensuring that they are conducted while foreign labour is being used.
  • Creating an accreditation system for recruiters, which requires compliance with the TFWP rules and from which employers could exclusively select.
  • Establishing a dispute resolution mechanism for migrant workers when conflict with an employer arises.
  • Ensuring, through on-site inspections that labour laws and regulations are properly enforced where migrant workers operate; and,
  • Guaranteeing that any workplace injuries that require immediate attention be granted emergency care where deemed necessary in Canada.

 

  1. That the ESDC, in collaboration with stakeholders, establish measures to ensure that incoming migrant workers and their employers are informed of their rights and responsibilities under the TFWP, including dispute resolution and abuse reporting procedures, as well as information on wages, benefits, accommodations and working conditions, and the department undertake best efforts to provide this information in the language preference of the migrant worker.

 

“The committee has undertaken a major project and returned with some welcome recommendations that would benefit Canadian workers, foreign workers, and businesses alike. Representatives from each stakeholder group have been consulted and, consequently, the report is thorough,” says Attorney David Cohen.

 

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