Temporary Foreign Workers – Proposed Regulations of October 10 2009

By Author: Admin | October 18, 2009

On October 10 2009, the Canada Gazette (the federal government’s newspaper) published a draft set of regulations pertaining to the temporary foreign workers.  The draft regs are available here:

http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html

A significant change to the current law relates to more specific guidelines for a Service Canada officer when assessing the genuineness of a job offer.   The specific criteria for assessing genuineness that would be set out in subsection 200(5) of the proposed amendments as follows:

whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;

whether the offer is consistent with the reasonable employment needs of the employer;
whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

The proposed regulations are generally helpful by being more specific than before.  Currently, Service Canada does not have clear or detailed guidance on the issue of genuineness.  The consequence was that visa officers overseas would conduct their own assessment of whether the job being offered was genuine – with often unfair results.  Unfair results included failing to contact an employer to confirm details about the place of work, or the job to be performed.  It is hoped that visa officers would be satisfied with leaving this task to Service Canada officers who work in Canada, and hence are better placed to assess the genuineness (or ‘bona fides’ in lawyer jargon) of a job offer.

One cause for concern is the issue of the past compliance of an employer with applicable federal or provincial laws.  On the face of it, compliance with the law should be a welcomed and obvious criterion to use when figuring out if a job offer is genuine.  However, employers would consequently have to tread very carefully when seeking out a foreign worker for temporary employment, as some mistakes may ultimately end of as evidence of a lack of past compliance.  This would be a good opportunity to emphasize the usefulness of a representative when considering a foreign worker.

Given that a registry of these non-compliant employers is proposed (on immigration Canada’s website), the entire reputation of a business can be in jeopardy if the work permit application is bungled.  Picture someone googling “ABC company” and finding one hit for said company on immigration Canada’s website showing non compliance with the law.

Employers can also end up on this public blacklist of sorts for providing “significantly different” wages, working conditions or job duties.  I’m not too worried about this provision; given that the Federal Court would be governed by what is ‘reasonable’,  I would interpret the term ‘significantly’ to be one that would shield employers from spurious findings or frivolous accusations.  The downside is that the phrase “significantly different” would likely have to be litigated before some consensus on its meaning is obtained.

It is also logical for the government to impose a four year cap on the availability of these work permits.  Specifically, it is proposed that a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada would be required, with exemptions under certain circumstances.  The exceptions appear to be people whose work permit was issued to on the basis of conferring a ‘significant benefit’ (Regulation 205 (a)), and a permit issued under an international agreements (Reg. 204 a)) and seasonal agricultural workers.  All others, such as low skilled workers and those under LMOs, or other Reg. 205 workers (such as reciprocal employment, or spouses of workers and students) would be subject to this four year cap.  I understand the cap applying to low skilled workers, but can see that spouses of work permit holders and spouses of study permit holders (who obtain a work permit) may get caught under this provision with no corresponding enforcement benefit to Canada such as the protection of foreign workers or maintaining of Canadian wages.

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