Government continues juggling with temporary workers

The political conflict over the temporary foreign worker program came to a head this past week with the announcement by Employment Minister Jason Kenney last Thursday that the government was suspending the issuance of labour market opinions related to the food services sector. Under the moratorium Employment and Social Development Canada (ESDC) will not process any new or pending labour market opinion applications for that sector. Labour market opinions, known as LMOs, are decisions by ESDC that an employer has given a genuine job offer and that hiring a foreign worker would have a neutral or positive effect on the labour market opinion in Canada.

Critics have complained about the temporary foreign worker program for years. The program is purportedly intended as a last resort for employers to find workers when they have been unable to find qualified workers in Canada. In the past decade, and particularly under the present government, the foreign worker program has greatly expanded. There are currently about 338,000 temporary foreign workers in Canada, compared with about 110,000 ten years ago.

In justifying the moratorium, Minister Kenny said it was made in response to serious allegations of abuse by employers that ESDC had been made aware of recently. It also followed the release of a report by the C.D. Howe Institute that the increase in temporary foreign workers had led to higher joblessness in B.C. and Alberta, particularly among young workers. The Minister’s response reminds me of the character Captain Renault in the movie classic, Casablanca. When asked why he was shutting down Rick’s cafe, he disingenuously exclaimed, “I'm shocked, shocked to find that gambling is going on in here!,” as a worker from the cafe’s casino hands him money.

For years Minister Kenny has been leading the efforts of the government in cultivating its name among various community groups. The temporary foreign worker program has had a significant impact on both the Filipino and South Asian communities, as they are the major source countries for temporary foreign workers. The program has been a boon for many small business owners, as well as large corporations. The critics have warned of abuses with the program for several years.

Instead of increasing wages to attract local workers for lower skilled jobs, businesses have been able to hire foreign workers, keeping wage rates lower.  In the case of higher-skilled jobs, easier access to foreign workers has taken the incentive away from retraining Canadian workers to fill job positions; even though part of the LMO process involves an assessment of whether the employer has made or will make reasonable efforts to hire or train Canadians and permanent residents.

Over a year ago two local unions challenged a decision to grant LMOs to HD Mining to hire several hundred foreign miners to work at its northeast BC coal mine. The company won the case. Part of its proposal was that it would eventually train Canadian miners to do long-wall mining, a technique used only in a few mines in Canada. A year has passed and it is reported that the company has yet to start training the different technique to Canadian miners.

There are many political issues at play with the temporary foreign worker program. How much money should the government spend on retraining Canadians and permanent residents? How much should businesses be responsible for retraining and reeducation? Will Canada lose an economic competitive edge with other countries that use temporary workers? Do benefits such as employment insurance and social assistance create a disincentive for Canadians to relocate to find work? How much should the government spend to police the program, to curtail abuses? Will recent restrictions on parental sponsorship reduce the pool of potential workers for lower-skilled jobs, such as food services?

The program effects the workers coming to Canada. Should they receive a right to acquire permanent residence regardless of the skills they provide to Canada? Some economic libertarians and social activists suggest an “open border” policy, allowing the marketplace to determine who gets to stay in Canada. Would that mean no restrictions on access to social benefits?

Despite the moratorium, the temporary foreign worker program is still open to employers in other work sectors. The government is toughening enforcement, as with most other areas of immigration and citizenship. Employers will continue to seek foreign workers as long as the wage savings outweigh the added administrative costs of hiring those workers. The proposed Express Entry program starting in 2015 will make it easier for employers to acquire higher-skilled workers, but won’t help with the lower-skilled worker market. Politicians will continue to change the program, hoping to bolster their standing amongst potential voters in various communities for the next election in 2015, making it harder for some businesses to plan.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Who protects temporary foreign workers in Canada

Claims of abuse and exploitation of temporary foreign workers has increased in recent years as the number of such workers has risen in Canada to well over 350,000 in 2013. Workers complain that employers fail to comply with hiring contracts by requiring longer work hours and not paying agreed-upon salary, and providing working conditions that Canadian employees would reject. Many foreign workers won’t complain for fear of retribution from their employer. They cannot easily change employers once they are in Canada and if they leave Canada their chances of returning are decreased.

It is in response to this problem that the government made its recent changes to immigration rules affecting employers wanting to hire temporary foreign workers. Immigration Minister Chris Alexander sold the changes as part of the government’s commitment to protect foreign workers from the risk of abuse and exploitation. As I wrote about last week the changes give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Part of the other potential abuse of foreign workers comes from employers who charge workers money for giving them a job offer. The payment may involve a single fee paid up front for the job offer, or a set-off against wages once the worker begins employment. There are laws available to protect the foreign worker from such exploitation. In British Columbia, employment law is governed in part by the Employment Standards Act. Section 10 of the law prohibits any person from requesting, charging or receiving, directly or indirectly, from a person seeking employment, a payment for employing or obtaining employment for the person seeking employment, or providing information about employers seeking employees.

Workers who have paid such fees may make a complaint to the Employment Standards Branch, which, if not resolved by the worker and their employer may proceed to investigation, mediation or adjudication by the Branch. The Director of Employment Standards can issue a determination for unresolved complaints. The employer may be assessed mandatory penalties for breaking the Act and the Director has powers to collect outstanding wages and penalties. The illegal job fees are treated as unpaid wages owing to the worker.

Some workers have spoken out about the abuse and have complained to the Branch. Last month some Filipino workers at Tim Hortons’ restaurants in Fernie and Blairmore have alleged that the local owners have exploited them by forcing repayment of overtime wages. A year earlier a group of Mexican workers complained to the BC Human Rights Tribunal with allegations of discrimination and mistreatment by a Tim Hortons restaurant in Dawson Creek.

Another requirement of the Employment Standards Act is the licensing of employment agencies. That includes any person who, for a fee, recruits or offers to recruit employees for employers. There are many job recruiters offering to find work for foreign workers who may be visiting Canada or who are abroad. Not all of the job recruiters are licensed to act in British Columbia. Under the law, the employment agency can only charge the employer for finding an employee, though some recruiters exploit workers by charging them a fee.

These rules led to a complaint to the Employment Standards Branch over the practices of an immigration consultant. ICN Consulting Inc., an immigration consulting firm owned by Tatiana and Michael Gorenshtein, charged two live-in caregiver applicants fees to obtain a labour market opinion for their prospective employer and for their work permit applications. The Employment Standards Director determined that the consultant should have been licensed as an employment agency and had unlawfully charged a fee for helping the workers obtain employment.

Meanwhile, the consultant successful sued one of the workers for unpaid fees in Provincial Court, where a justice of the peace found the consultants contract was not for arranging employment but for providing immigration services. Last September the BC Supreme Court ordered that the issue of whether the consultant’s fee involved a fee for arranging employment be reconsidered by the Employment Standards Tribunal. The case is pending before the Tribunal.

Whether exploitation and abuse of foreign workers will continue to be a significant problem remains to be seen. Workers have remedies under provincial employment and human rights law against abusive employers and recruiters. Investigations under the new federal rules may still depend upon a complaint before action is taken. In either case, the end result is that the foreign worker will lose a job, with no certainty they can get another approved job offer. In those circumstances, when protection from abuse depends on the willingness of workers to make complaints, the potential for abuse still exits.  The recent rule changes do not address that problem.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Immigration rule changes to impact foreign worker employers

In late December Immigration Minister Chris Alexander and Employment Minister Jason Kenney announced changes to the Immigration and Refugee Protection Regulations that give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Effective Dec. 31, the changes received formal approval from the federal cabinet on Dec. 12 following consultation with interested parties after proposed changes were announced last June. The changes are part of several reforms to the temporary foreign worker program announced after public criticism arising from several stories early last year. One news report revealed The Royal Bank had replaced dozens of Canadian workers with foreign workers, as part of a plan to outsource jobs abroad. In another story, a mining company successfully fought a court challenge by a Canadian union against a government decision allowing it to hire several hundred foreign workers for a proposed mine in British Columbia.

The new rules have received criticism and comment from various groups. Some complain about additional burdens placed on employers, while another complaint concerned the failure of the government to implement one of the proposals it floated last June.

Employers must now retain any document relating to hiring and employing a foreign worker for six years. During that period officials may enter the workplace and interview foreign workers or demand documents, without a warrant, to determine if the employer has complied with the immigration rules and the conditions set out in the labour market opinion (LMO) which gave the employer permission to hire the foreign workers. An employer must show that all information provided for the LMO is accurate and must make reasonable efforts to provide a workplace that is free of abuse.

Inspections may be carried out for six years after a foreign worker is employed. Employers who fail to comply with the rules or the LMO will get a chance to justify and correct its actions. If the employer is found in non-compliance, it will be ineligible to hire foreign workers for two years and will have its name published on a public ban list. Pending applications will receive a negative LMO and outstanding LMOs may be revoked.

The Saskatchewan Federation of Labour expressed concern about the government’s decision to drop a proposed rule that would have banned employers convicted of certain serious crimes from hiring foreign workers. Federal President Larry Hubich said, "They've given us no confidence that they're going to enforce what they have there now."

In response, the government justified the proposal as being "too rigid and cumbersome."  The proposal would have cost employers more money and there are issues about receiving timely criminal record checks. The government will rely upon the threat of compliance searches to deter employers from abusing foreign workers. Whether that is effective will depend on how much money the government commits to its compliance measures.

The new rules apply to all employers, including farms and agricultural employers, fast food outlets and restaurants, as well as to employers hiring skilled and specialized workers.

The government’s response to public criticism of the temporary foreign worker program has focused on its efforts to create jobs, economic growth and long-term prosperity. Minister Kenney, in announcing the changes, stated the government was “taking action to ensure that Canadians are always first in line for available jobs.” However, the changes the government states strengthen criteria for assessing LMO and work permit applications are minor in substance and to not appear to make it much harder for an employer to justify the need to hire a foreign worker.

As Minister Alexander stated in the announcement “One of the goals of the temporary foreign worker program is to deal with labour shortages on a temporary basis, and these reforms will help ensure that the program is used as intended.” Stories still get published about forecasts of worker shortages in Canada.

The government is proposing a new “expression of interest” system to select qualified immigrants for permanent residence to meet employer needs. That system will not be in place until 2015. Until then the government and employers will continue to rely on the temporary foreign worker program to meet immediate employment needs. Continued conflict between the federal government and provincial governments over job training funding also raises concerns about the ability to train Canadians to fill worker shortages. Unless worker shortages decrease, many employers will continue to seek approval to hire foreign workers.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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Immigration creates winners and losers with CEC changes

The announcement late last week that the Immigration Department is capping applications to the Canadian Experience Class at 12,000 applications and cutting out certain occupations for eligibility is another example of the government’s flexibility in addressing labour market needs through ministerial instructions. It is also penalizing certain workers brought to Canada under the government’s temporary foreign worker program.

The Canadian Experience Class was created in 2008 to allow certain temporary foreign workers and foreign student graduates with managerial, professional, or technical or trade work experience to apply to become permanent residents. It fit a stated emphasis on the economy, as a means, in the government’s words, of retaining talented and motivated individuals who have demonstrated a strong work ethic, have an ability to contribute to the economy, and will easily integrate into Canadian life.

The basic requirements for the program require an applicant to have at least 12 months of full-time (or an equal amount in part-time) skilled work experience in Canada in the three years before they apply. They must also have gained their experience in Canada with the proper authorization, meet required language levels needed for your job for each language ability (speaking, reading, writing, and listening), and have the experience in managerial jobs, professional jobs, and technical jobs and skilled trades. The government has approved about 25,000 applicants through the program since it was introduced and expects to approve about 10,000 applications this year.

At the same time the current government has opened up the doors to a large number of temporary foreign workers. The numbers increased from 140,650 at the end of 2005, to 338,213 at Dec. 1, 2012. This has occurred despite an increase in the unemployment rate during the same period. Since 2007 the Philippines has been the largest source country for workers in Canada as of Dec. 1 each year, with 47,470 present as of Dec. 1, 2012. It is followed by the United States, Mexico, India, France and Australia. 

More recently the government fast-tracked work permit approvals in Alberta and British Columbia. The Alberta Federation of Labour (AFL) claims that more than 2,400 permits, many in Alberta, were approved for workers in fast-food restaurants, convenience stores and gas stations. The Federation also claims that in 2012 there were more than 200 complaints about labour standard violations in Alberta, with nearly half found to be legitimate.

The BC Chamber of Commerce has noted that with dramatic increases in foreign workers in Northeastern BC and across the country, there has been an increase in the number of complaints from foreign workers regarding abuse and mistreatment. In September the BC Human Rights Tribunal ordered Tim Hortons to disclose the information related to four temporary foreign workers from Mexico who claim they were discriminated against by their employer in Dawson Creek.

The influx of foreign workers led to a public backlash earlier this year after several cases became public. The Royal Bank of Canada brought in temporary workers to train for dozens of soon-to-be-outsourced Canada-based jobs and a Chinese-owned mining company, HD Mining, was approved to import Chinese coal mining workers into British Columbia. The government has responded with some changes to the temporary worker program, including the introduction of a fee for employers seeking approval to hire foreign workers.

The specific occupations which have been made ineligible under the Canadian Experience Class includes cooks, food service supervisors and retail sales supervisors; the same occupations which the government appears to have helped expedite in handing out temporary work permits according to AFL President Gil McGowan. In a Postmedia story, Mr. McGowan states “They were screwed by being brought into the country to act as pawns to drive down wages and conditions. Now they’re having the door closed in their faces when it comes to access permanent residency.”

The caps and restrictions imposed by the government are under legislative powers enacted by Parliament in 2008. They give the Immigration Minister tremendous administrative flexibility to determine processing levels and cut down on applications being processed through the issuance of Ministerial Instructions. In some cases, they appear to retroactively change the rules by which a person may apply for permanent residence. In this case, under the latest Ministerial Instruction, some temporary workers who came to Canada with the expectation they may be able to apply to remain permanently may be out of luck.The changes are effective Nov. 9, 2013.

However, all is not lost for some of the temporary workers. In British Columbia some may still be eligible to apply for permanent residence under the province’s Provincial Nominee Program, either as skilled workers, entry-level or semi-skilled workers, or under the Northeast Pilot Project. There are similar categories under Alberta’s immigration program. With Ministerial Instructions, the immigration rules change regularly so current advice is always required.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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New Immigration Minister to face continuing challenges

On July 15 Prime Minister Stephen Harper announced the appointment of Chris Alexander, MP for Ajax-Pickering in Ontario, as the new Minister of Citizenship and Immigration, replacing Jason Kenney. Mr. Kenney had been the Immigration Minister since October, 2008, the longest tenure for an immigration minister since Charles Stewart held the position in the 1920s.

Mr. Alexander has publicly acknowledged that he has “big shoes” to fill, as Mr. Kenney has left large imprints on the immigration ministry and immigration policy. Mr. Kenney hasn’t left the field entirely as he will still have an impact through the implementation of the Temporary Foreign Worker Program as part of his responsibilities as the new Minister of Employment and Social Development.

During his tenure Mr. Kenney was responsible for several significant legislative changes to immigration legislation and regulations, many under the guise of public safety and crime protection issues. In 2010 Parliament passed the Balanced Refugee Reform Act which tightened the procedures for determining refugee claimants and removing failed claimants. Amendments in 2011 provided for greater regulation of immigration consultants. Under the 2012 Safe Streets and Communities Act immigration officers are empowered to refuse work permits to workers in vulnerable occupations subject to abuse. The Protecting Canada’s Immigration System Act in 2012 made further changes to the determination of refugee claimants in Canada and imposed restrictions on persons who arrive in Canada through organized smuggling. Finally, last month Parliament passed the Faster Removal of Foreign Criminals Act which makes it possible to deport permanent residents without appeal if convicted of serious criminal offences and sentenced to at least six months in prison.

Much of immigration policy is carried out through regulations. Under Mr. Kenney’s watch the regulations have been amended for various reasons, including eliminating some health services for refugee claimants and the creation of conditional visas for spouses in an attempt to reduce marriage fraud. He has been responsible for changes to eliminate the backlog of permanent skilled worker applications, wasting years of wait for many applicants.

The restrictions on health services for refugee claimants generated significant backlash, particular in the healthcare community. Fraud has been a major focus of the Immigration Department and the Canada Border Services Agency for the past few years, whether it be marriage fraud, misrepresentations made during immigration applications, and fraudulent claims of residency in citizenship applications.

Mr. Kenney’s last significant act was to announce proposed rule changes, to come into effect in 2014, that will restrict the ability of citizens and permanent residents to sponsor parents, and to limit the age of dependent children who may accompany immigrants to Canada under all categories to age 18 and younger.

The government’s purported priorities are job creation and the economy. Immigration policy, particularly under the current government, has changed – to use immigration as a means of meeting Canada’s economic needs. There has been less emphasis on family and humanitarian immigration categories. There has been a shift to meet short-term employment needs through temporary foreign workers. Some critics argue the changes have gone too far, with not enough public resources spent on job retraining of existing Canadian workers. They wonder why Canada continues to import more temporary foreign workers when the unemployment rate for young Canadians remains high.

The government faced political heat over two cases in the news since last year, with the proposed hiring of Chinese miners at the HD Mining site in Northern British Columbia and the Royal Bank of Canada’s training of foreign workers in Canada for future outsourcing of jobs. The government has yet to announce the results of its review of the temporary foreign worker program undertaken as a result of public outcry over these two cases.

Part of the problem is that job retraining is considered a matter of provincial responsibility and the provinces have not agreed what role the federal government should play. Until that is sorted out and political decisions are made on spending public monies to retrain Canadians, the federal government will probably continue to use temporary foreign workers as a solution for worker shortages in many occupations or to meet regional economic requirements.

While the immigration department and the border agency have increased resources for enforcement issues, the government has downloaded the cost of immigration selection to provinces by allowing them to select more immigrants. The government has centralized more immigration processing to fewer offices. Federal selection programs require applicants to spent more money to provide objective proof of their occupational and language qualifications. In an attempt to operate more efficiently there is less face-to-face contact with applicants.

There continue to be problems with citizenship applications and legislation. Conflicting decisions of the Federal Court over the residency requirement for grants of citizenship have existed for the past 20 years creating uncertainty and unfairness for applicants. Parliament has twice failed to pass a new citizenship law in the past 14 years. The government faces calls to restore or grant citizenship to persons born before 1947, who would otherwise be citizens if they were born after 1946.

Mr. Alexander will face all of these issues as the new Minister of Citizenship and Immigration. Some issues, such as the use of temporary foreign workers, require agreement with several federal departments as well as the provinces and is not something he can resolve alone. I expect he will face a growing backlash over the proposed age limits on dependent children. The rule change will result in decreased parental sponsorship and a shift in the age range of potential economic immigrants, as fewer immigrants in their 40s with children older than 18 will likely apply to come to Canada. Given Canada’s aging demographics that may be the government’s intention. Mr. Alexander will have to use his skill as a former diplomat to navigate his way through the public perception that the government’s immigration policies are too focused on economic goals.

William Macintosh started practising immigration law in 1984. You can reach him for advice at 778-714-8787.

Foreign miners hiring approval upheld by Federal Court

On Tuesday the Federal Court upheld a decision by a Human Resources and Skills Development Canada (HRSDC) officer to approve ten labour market opinions (LMOs) allowing HD Mining International Ltd. to hire 201 Chinese miners to extract a bulk coal sample at its Murray River Project near Tumbler Ridge, B.C.

Mr. Justice Zinn’s decision is the first case to examine the government’s Temporary Foreign Worker Program (TFWP) and the power to issue LMOs under section 203 of the Immigration and Refugee Protection Regulations. The April, 2012, decision by Officer MacLean was challenged by two unions, the Construction and Specialized Workers’ Union and the International Union of Operating Engineers, acting in the public interest.

With few exceptions, a foreign worker must obtain a permit to work in Canada. In most cases, in deciding to issue a work permit an immigration officer must determine, on the basis of an opinion provided by HRSDC, whether the employment of the foreign worker is likely to have a neutral or positive effect on the labour market in Canada. The opinion, known as the LMO, is based upon six factors set out in Regulation 203(3). They include whether the employment of the foreign national will likely result in direct job creation or job retention for citizens or permanent residents, in the creation or transfer of skills and knowledge for the benefit of citizens or residents, or fill a labour shortage; and whether the wages offered are consistent with prevailing wages and the working conditions meet generally accepted standards, whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents, and whether it would affect any labour disputes.

Justice Zinn found the officer did not fetter his discretion when assessing the LMO application, or make any unreasonable assessment when considering the factors set out in Regulation 203(3). He determined that it is not necessary for an applicant to satisfy all of the six factors. The HRSDC officer has to examine each factor and can assess what weight is given to each factor. In HD Mining’s case, the officer found that while the company did not show positive job creation or skill transfers factors, all of the other factors were positive so the LMO would be issued.

The unions challenged the efforts of the company in hiring Canadian workers, pointing out that very few Canadian applicants were interviewed for positions. The court found no error by the company in fulfilling advertising requirements set out by HRSDC. Furthermore, it found that the small number of Canadian interviewees did not give rise to any concern that recruitment efforts were not genuine. The officer had not sought to review any resumes submitted by any applicants. Justice Zinn stated that the HRSDC officer “is not a human resources specialist or a recruitment officer” and he “would be very surprised if a review of the resumes would have been any more meaningful to the officer than to the Court.”  He added, “an employer must be given some latitude in its hiring even within the TFWP.”

The case provides guidance for employers in recruiting temporary foreign workers. HRSDC will establish advertising requirements after its assessment of the labour market situation for the specified occupation. The employer will have to keep detailed records of its advertising and recruiting efforts, but will be given latitude in its hiring decisions. An employer may have to produce such records. The decision does not address what factors are relevant in rejecting potential Canadian applicants, as it was not necessary in this case. Finally, an LMO application has to address all the factors set out in Regulation 203(3), but does not have to positively satisfy all the factors.

The government is continuing to review the TFWP to ensure it is working in the best interests of Canadian workers and businesses. Since this case upholds the current process, I do not expect any major changes to the procedure.