2013-10-11
Carmelle Wolfson
OHS Canada
Changes to Canada’s Temporary Foreign Worker Program (TFWP) announced in June will give immigrations officials the authority to enter and inspect workplaces without first obtaining a warrant, unless the workplace is a private residence.
The proposed regulatory amendments will allow officials from Human Resources and Skills Development Canada (HRSDC) and, in some cases, Citizenship and Immigration Canada (CIC), to inspect a place of work if they suspect an employer has not complied with Labour Market Opinion (LMO) conditions; the employer has not complied in the past; or the employer is randomly chosen to verify if the information provided in the LMO — issued by the HRSDC to determine if the employment of a foreign national will have a neutral or positive effect on the labour market — is accurate.
The enhanced inspection regulation is part of the recent changes to the TFWP, which has come under public scrutiny in light of two high-profile cases involving temporary foreign workers in Canada. Media reports of Royal Bank of Canada outsourcing information technology positions to Indian workers and a mining company in British Columbia hiring 200 Chinese construction workers led to public outcry earlier this year.
In June, the federal government began introducing reforms to the TFWP to discourage employers from abusing the program. Some of these changes include requiring employers to answer more questions on the LMO; introducing a processing fee of $275 for each position to which an employer makes an application through the LMO; and specifying English and French as the only languages that can be listed as job requirements.
David Cohen, a lawyer at Campbell Cohen Immigration Law Firm and founder of canadavisa.com in Montreal, says "the fact that an employer can be inspected at any time without notice does, in theory, afford the worker more protection."
Sharaf Sultan, an immigration and labour lawyer with Heenan Blaikie in Toronto, says the latest move will compel employers to put more policies in place related to the hiring of temporary foreign workers. "I think it’s good news that there will be a more careful tracking of these individuals and how the employer treats [them] — not just in their hiring, but also throughout their employment."
But Sultan cautions employers that a workplace inspection could expose other safety violations and lead to more inspections. "Employers should be prepared for the fact that once your doors open, you know, they’re not going to turn a blind eye to glaring issues."
The penalties are stiff if an employer is found to be non-compliant with the terms and conditions stipulated in the LMO. Cohen cites the public listing of the offending employer on CIC’s website and the prohibition of hiring temporary foreign workers for another two years as major deterrents. "No legitimate employer wants to be put on a list for not having complied with government regulations," he says. "That is a pretty strong incentive to comply with the obligations afforded to the temporary worker."
Aside from the chilling effect that the enhanced inspection power and other changes to the TFWP could have on employers who look beyond the borders to meet their labour needs, there is also the question of who will be conducting workplace inspections. "I’m wondering whether this is part of a larger crackdown, enforcement crackdown — not so much on the workplace — but on undocumented workers," suggests Toronto-based immigration lawyer El-Farouk Khaki, who is concerned that border guards could get involved.
Khaki cautions that foreign workers could become vulnerable if a workplace is shut down over safety violations. "I understand that you’re creating or trying to create a better, safer work environment, but if you’re left with no work at the end of the day, how does that benefit the temporary worker?" he contends. "What happens to these foreign workers? Do they just get put on the next boat back?"
EQUAL PARTNERS
The number of temporary foreign workers in Canada, which reached more than 300,000 in 2012, has doubled since 2000 and is outpacing the number of permanent residents allowed into the country. Sultan calls this a symptom of an "employer-driven" system. "What’s quickly becoming the most common way to come to Canada first is as a temporary foreign worker," says Sultan, who suggests that employers have become "equal partners" to immigration officers in this process.
He calls the sheer expansion of the TFWP a "ticking time bomb" the government is now trying to rein in. "I think what’s happening is immigration is trying to ensure that they [employers] understand there are responsibilities that come with that and to weed out those who are not willing to respect that," Sultan says of the recent changes to the TFWP.
Stan Raper, national coordinator of Agricultural Workers Alliance at United Food and Commercial Workers union in Toronto, is skeptical that the HRSDC has the required resources to inspect more than 340,000 temporary foreign workers who are currently employed in Canada. "I think they’re just blowing smoke," Raper says. "You’re going to need an army of people who have multiple language capacity."
Cohen agrees that it is unclear from the announcement how inspections will be enforced. He questions whether the government’s history with regards to the TFWP is an indication of things to come. While the CIC website has a section for non-compliant employers since 2011, Cohen says he has yet to see one name on it. "Is this all a wink and a nod and employers will go on? We won’t know until some water is under the bridge, but there are procedures in place now, at least, for the government to be proactive in terms of compliance."
Raper says the LMO system is flawed and the TFWP is a way for employers to hire cheap labour. "They really need to revamp the LMO system to ensure any jobs that are available are at a decent wage, with potentially some benefits, so that Canadians will take a look at those jobs and potentially fill them," he says, advocating for more apprenticeship and training programs.
HIGHER BAR
Cohen thinks that the recent changes bode well for both local and foreign employees. Not only does it put the onus on employers to demonstrate that efforts have been taken to train Canadian workers before looking beyond the shores, it also bolsters the protection of foreign workers.
Nonetheless, Raper contends that foreign workers can still be at risk of illness and injury, depending on the province where they are employed. Raper suggests that there are significant differences in workplace safety standards, citing the exclusion of foreign and domestic workers in Alberta’s agricultural sector from the Occupational Health and Safety Act as an example. "Any province that wants to get temporary foreign workers should have some basic standards. And I would argue workers comp, health and safety [and] the right to unionize are basic employment standards."
Meanwhile, recruitment firms are preparing clients in case they are targeted for inspection. Peter Veress, president of Vermax Group, which recruits foreign workers for large companies in the oil and gas and construction sectors in Alberta, says none of his clients has been inspected since the government announced the changes in June, although some have undergone a compliance review.
Veress advises his clients to comply with basic immigration and Service Canada rules, follow all labour standards and keep detailed documentation of their human resource efforts. Employers should also be prepared to answer questions such as whether they have participated in job fairs; developed partnerships with training institutions; offered internships; consulted unions regarding available labour; tried recruiting from under-represented groups; offered training opportunities to current employees; and targeted high-potential employees for advancement.
While Veress says the changes to the TFWP are unlikely to affect larger employers, they can create challenges for smaller employers with limited resources. "At the end of the day, there is a rule, and I think it’s incumbent on the private sector to maintain a certain integrity and protect all workers."
Carmelle Wolfson is Assistant Editor of OHS CANADA.
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