ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers)

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Vol. 144, No. 17 — August 18, 2010

Registration

SOR/2010-172 August 3, 2010

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2010-959 August 4, 2010

Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsections 5(1) and 14(2), section 32 and paragraph 150.1(1)(a) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers).

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (TEMPORARY FOREIGN WORKERS)

AMENDMENTS

1. Subsection 183(1) of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer whose name appears on the list referred to in subsection 203(6) if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) was made; and

2. (1) The portion of subsection 200(1) of the Regulations before paragraph (a) is replaced by the following:

Work permits

200. (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that

(2) Subparagraphs 200(1)(c)(ii) and (iii) of the Regulations are replaced by the following:

(ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work,

(ii.1) intends to perform work described in section 204 or 205, has an offer of employment to perform that work and an officer has determined

(A) that the offer is genuine under subsection (5), and

(B) that during the two-year period preceding the day on which the application for the work permit is received by the Department,

(I) the employer making the offer provided each foreign national employed by the employer with wages, working conditions and employment in an occupation that were substantially the same as the wages, working conditions and occupation set out in the employer’s offer of employment to the foreign national, or

(II) in the case where the employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered, the failure to do so was justified in accordance with subsection 203(1.1), or

(iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e); and

(3) Subsection 200(3) of the Regulations is amended by striking out “or” at the end of paragraph (d) and by adding the following after paragraph (e):

(f) in the case of a foreign national referred to in subparagraphs (1)(c)(i) to (iii), the issuance of a work permit would be inconsistent with the terms of a federal-provincial agreement that apply to the employment of foreign nationals;

(g) the foreign national has worked in Canada for one or more periods totalling four years, unless

(i) a period of forty-eight months has elapsed since the day on which the foreign national accumulated four years of work in Canada,

(ii) the foreign national intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents, or

(iii) the foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers; or

(h) the foreign national intends to work for an employer whose name appears on the list referred to in subsection 203(6) and a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) was made.

(4) Section 200 of the Regulation is amended by adding the following after subsection (3):

Cumulative work periods — students

(4) A period of work in Canada by a foreign national shall not be included in the calculation of the four-year period referred to in paragraph (3)(g) if the work was performed during a period in which the foreign national was authorized to study on a full-time basis in Canada.

Genuineness of job offer

(5) A determination of whether an offer of employment is genuine shall be based on the following factors:

(a) whether the offer is made by an employer, other than an employer of a live-in caregiver, that is actively engaged in the business in respect of which the offer is made;

(b) whether the offer is consistent with the reasonable employment needs of the employer;

(c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and

(d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the 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.

3. Subsection 201(2) of the Regulations is replaced by the following:

Renewal

(2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 200.

4. (1) Subsection 203(1) of the Regulations is replaced by the following:

Assessment of employment offered

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if

(a) the job offer is genuine under subsection 200(5);

(b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada;

(c) the issuance of a work permit would not be inconsistent with the terms of any federal-provincial agreement that apply to the employers of foreign nationals;

(d) in the case of a foreign national who seeks to enter Canada as a live-in caregiver,

(i) the foreign national will reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household without supervision,

(ii) the employer will provide adequate furnished and private accommodations in the household, and

(iii) the employer has sufficient financial resources to pay the foreign national the wages that are offered to the foreign national; and

(e) during the period beginning two years before the day on which the request for an opinion under subsection (2) is received by the Department of Human Resources and Skills Development and ending on the day on which the application for the work permit is received by the Department,

(i) the employer making the offer provided each foreign national employed by the employer with wages, working conditions and employment in an occupation that were substantially the same as the wages, working conditions and occupation set out in the employer’s offer of employment, or

(ii) in the case where the employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered, the failure to do so was justified in accordance with subsection (1.1).

Justification

(1.1) A failure referred to in subparagraph (1)(e)(ii) is justified if it resulted from

(a) a change in federal or provincial law;

(b) a change to the provisions of a collective agreement;

(c) the implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;

(d) an error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;

(e) an unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error; or

(f) circumstances similar to those set out in paragraphs (a) to (e).

(2) The portion of subsection 203(2) of the Regulations before paragraph (a) is replaced by the following:

Opinion on request

(2) The Department of Human Resources and Skills Development shall provide the opinion referred to in subsection (1) on the request of an officer or an employer or group of employers, other than an employer whose name appears on the list referred to in subsection 203(6), if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) was made. A request may be made in respect of

(3) Section 203 of the Regulations is amended by adding the following after subsection (2):

Subject matter of opinion

(2.1) An opinion provided by the Department of Human Resources and Skills Development shall consider the matters set out paragraphs (1)(a) to (e) but, for the purposes of this subsection, the period referred to in paragraph 1(e) shall be considered to end on the day that the request for the opinion is received by the Department of Human Resources and Skills Development.

(4) The portion of subsection 203(3) of the Regulations before paragraph (a) is replaced by the following:

Factors re effect on labour market

(3) An opinion provided by the Department of Human Resources and Skills Development with respect to the matters referred to in paragraph (1)(b) shall be based on the following factors:

(5) Section 203 of the Regulations is amended by adding the following after subsection (3):

Period of validity of opinion

(3.1) An opinion provided by the Department of Human Resources and Skills Development shall indicate the period during which the opinion is in effect for the purposes of subsection (1).

(6) Section 203 of the Regulations is amended by adding the following after subsection (4):

Employer’s failure not justified

(5) If an officer determines under subparagraph 200(1)(c)(ii.1) or paragraph (1)(e) that, during the period set out in paragraph (1)(e), an employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered and that the failure to do so was not justified in accordance with subsection (1.1), the Department shall notify the employer of that determination.

List of employers

(6) A list shall be maintained on the Department’s website that sets out

(a) the names and addresses of employers referred to in subsection (5); and

(b) the day on which the determination referred to in that subsection was made in respect of an employer.

5. The Regulations are amended by replacing “Department of Human Resources Development” with “Department of Human Resources and Skills Development” in the following provisions:

(a) the definition “National Occupational Classification” in section 2;

(b) the definition “restricted occupation” in section 73;

(c) subparagraph 82(2)(c)(ii);

(d) subparagraph 198(2)(a)(i);

(e) subsection 203(4); and

(f) paragraph 314(2)(b).

TRANSITIONAL PROVISIONS

6. For the purposes of section 8, a reference to a former provision of the Immigration and Refugee Protection Regulations means a reference to that provision as it read immediately before the coming into force of these Regulations.

7. The calculation of the four-year period referred to in paragraph 200(3)(g), as enacted by subsection 2(3), is not to include work that was performed before the day on which this section comes into force.

8. (1) An application for a work permit that requires an officer’s determination based on an opinion referred to in subsection 203(1) of the Immigration and Refugee Protection Regulations is to be dealt with under the former sections 200, 201 and 203 if the opinion was requested before the coming into force of this section.

(2) An application under section 197, 198, 199 or 201 of the Immigration and Refugee Protection Regulations or a request under subsection 203(2) of those Regulations, that is received before the coming into force of this section, is to be dealt with under the former sections 200, 201 and 203.

COMING INTO FORCE

9. These Regulations come into force on April 1, 2011.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: Canada’s Temporary Foreign Worker Program (TFWP) provides an important source of labour to Canadian employers demonstrating shortages of skills and labour. Unprecedented demand and unique economic conditions have caused new challenges for the TFWP over the last five years, including a rising concern for the fair treatment of temporary foreign workers (TFWS).

Description: Sections of the Immigration and Refugee Protection Regulations (Regulations) dealing with the entry of TFWs have been amended to clarify the process for and establish factors to be considered in assessing genuineness when Citizenship and Immigration Canada (CIC), Canada Border Services Agency (CBSA) and Human Resources and Skills Development Canada (HRSDC) assess offers of employment. Another key change to the Regulations allows for the restriction of an employer’s eligibility to access the TFWP for two years where the employer, at the time of application or request, has been found to have provided wages, working conditions or an occupation to a TFW during the period beginning two years from the application or request that were not substantially the same as the terms and conditions of the job offer, and for which a reasonable justification has not been provided. A list of ineligible employers will be made available on Citizenship and Immigration Canada’s (CIC) external Web site. Amendments also establish a maximum cumulative duration of four years of work for TFWs, followed by a period of at least four years not working in Canada, with exemptions under certain circumstances, and, in work permit applications that require an opinion by HRSDC, clarify that HRSDC has the authority to indicate a time period during which their opinion is in effect.

Cost-benefit statement: It is estimated that the combined cost of the TFWP to stakeholders would be $9.65M per year, which includes costs to the Government of Canada ($5.95M per year), provincial governments ($240,000 per year), and employers ($3.46M per year). The $9.65M annual cost is spread over approximately 60 000 affected employees, which equates to an annual estimated cost of $160 per TFW. Benefits were estimated to average $12M per year, resulting in overall net benefits of $2.35M per year, for a total net present value of $15.2M over a 10-year period. Other benefits that could not be quantified are expected to accrue to the Canadian economy, governments, employers, temporary foreign workers, unions, non-governmental organizations, recruiters (labour market brokers), and immigration lawyers/consultants.

Business and consumer impacts: Based on comparative country analysis conducted in the cost-benefit analysis (CBA), the Regulatory changes will likely result in increased competitiveness for businesses, enhanced working conditions for all workers, a more efficient labour market, and a more positive international reputation for Canada. As well, genuine Canadian employers will benefit by having continued access to a reliable flow of TFWs into critical job openings.

Domestic and international coordination and cooperation: These regulatory changes are consistent with and supportive of work being done with a number of provinces and territories to better protect the interests of TFWs in Canada. They are also expected to give greater assurance to foreign governments whose citizens work temporarily in Canada in large numbers.

Issue

TFWs have been an important source of labour supply in the Canadian labour market, particularly in the years preceding the economic downturn that began in 2008, with a marked increase notably in Western regions and in lower-skilled occupations. Since 1999, the total number of TFWs entering Canada has nearly doubled, increasing from 107 217 in 1999 to 193 061 in 2008, with over 40% destined for Alberta and British Columbia in 2008.

With this significant reliance on TFWs, the Government of Canada 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. Prior to these amendments, no provisions existed in the Regulations to hold employers accountable for their actions regarding TFWs. Breaches that could occur include employers paying TFWs less than promised; providing TFWs with poor working conditions or giving them different occupations from those agreed upon in the offer of employment; inadequate accommodations for some TFWs; and third-party agents charging fees to workers, rather than employers, in contravention of any existing provincial/territorial legislation.

In addition, the dynamic nature of the labour market has meant that Labour Market Opinions (LMOs) issued with no expiration date may have little relevance when used at a future point in time — when economic conditions may be significantly different.

Since economic forecasts suggest that Canada will experience ongoing labour shortages due to demographic pressures and given the employer demand-driven nature of the TFWP, we can expect to see significant demand for TFWs to continue in the coming years.

In light of the unprecedented growth in TFWs, coupled with rising concerns for the fair treatment of TFWs, the Government of Canada is proposing regulatory changes under the Regulations.

Objectives

The objectives of these regulatory changes are to

  • reduce the potential for TFW exploitation by employers and third-party agents, thereby better protecting TFWs who work in Canada;
  • implement stricter employer accountability mechanisms, including a denial of service provision, thereby encouraging greater adherence by employers to the terms and conditions of their job offers with respect to wages, working conditions, and occupations; and
  • underline that employment facilitated through the TFWP is meant to be temporary in nature.

Description

The Regulations

  • establish a set of factors to guide the assessment of the genuineness of an employer’s offer of employment to a TFW, in both HRSDC opinion and HRSDC opinion-exempt cases. One of the factors is the compliance of the employer, and of any recruiter acting on the employer’s behalf, with federal and provincial laws that regulate employment or the recruiting of employees in the intended province of work. The former Regulations did not set out any factors on which the genuineness assessment is to be made. Prescribing in the Regulations the factors on which to base the assessment of an employer’s offer is intended to lead to a more systematic and rigorous approach to the assessment;
  • 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 wages, working conditions or an occupation that was not substantially the same as what was offered during the previous employment of a TFW. The assessment will be undertaken at the time of a new HRSDC opinion request or work permit application, and will consider any employment of TFWs starting two years from the application or request. In making the assessment, the employers will have an opportunity to satisfy the officer that they have a reasonable justification for the observed differences in wages, working conditions or the occupation of the TFW, and have undertaken corrective action where possible to address the difference. The justifications may include

— a change in federal or provincial laws or applicable collective agreements,

— an error in interpretation made in good faith by the employer with respect to its obligations to the foreign worker, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error,

— the implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer,

— an unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error, or

— similar or related justifications;

  • 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 external Web site, in order to inform foreign nationals as to which employers are not eligible to hire TFWs. HRSDC will not issue an opinion and CIC and CBSA will not issue a work permit to any listed employer;
  • establish a limit of a cumulative duration of four years of work for TFWs, followed by a period of at least four years in which they may not be authorized to work in Canada. The Regulations also provide for exemptions for certain workers, including those who intend to perform work pursuant to international agreements. This provision signals 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 to respond to the long-term labour needs of employers;
  • introduce a provision clarifying that HRSDC will indicate a period of time during which its opinion is in effect. If a TFW does not obtain a work permit within that time period, the employer must request a new opinion from HRSDC; and
  • will come into force on April 1, 2011. This transition period (between the final publication and coming into force) will provide employers with the opportunity to prepare for the new requirements.

Regulatory and non-regulatory options considered

Over the past five years, a series of non-regulatory measures for improving employer compliance have focused on administrative improvements and facilitative measures (e.g. online LMO requests, creation of TFW Units) aimed at providing better service to employers and TFWs in the form of streamlined applications, and improving service standards in regions with highest demand. In addition, more information has been produced and additional outreach provided to the TFW employer community to heighten its awareness of its rights and obligations. This outreach continues through both printed and internet materials and via presentations to employer groups. Similarly, information and outreach activities have been targeted to TFWs in order to provide increased awareness of worker rights and obligations. These measures are seen as an essential complement to the regulatory provisions, rather than as an alternative to them.

Regulatory changes were required to support and strengthen existing measures to improve employer accountability and increase protections for TFWs, in particular through the introduction of new factors to guide the assessment of genuineness of the job offer. In addition, amendments were required in order to establish a two-year ineligibility period during which employers who have provided wages, working conditions and occupations that are not substantially the same as those in the employment offer are unable to access the program. Finally, regulatory changes were necessary to reinforce the temporary nature of the foreign worker program by placing limits on work periods.

The Government of Canada is supportive of provincial/ territorial initiatives aimed at strengthening protections for TFWs within their own jurisdictions, and believes that these regulatory amendments strengthen and complement existing measures. The amendments are supported by new federal-provincial/territorial agreements, including new information-sharing agreements, to be negotiated as we move forward.

Benefits and costs

The cost-benefit analysis (CBA) indicates that the regulatory amendments will likely produce a deterrent effect on program abuses, resulting in both quantitative and qualitative benefits and overall enhanced program integrity. The CBA findings also indicate that if the Canadian experience achieves the same or similar level of cost effectiveness as the Australian foreign worker program reform experience to date, it is likely that the cost of administering this new enhanced accountability regime in Canada will become cost neutral over time. Therefore, the CBA findings fully support the overall focus of the regulatory changes.

Table 1 below presents estimated costs and benefits of the TFW program regulatory amendments over a 10-year time horizon, drawn from elements of the CBA.

Table 1: Summary cost-benefit statement

Cost-Benefit Statement

Base
Year (2010)

Final
Year (2019)

Total (PV)

Average Annual

A. Quantified Impacts ($ millions 2009)

Benefits

Temporary Foreign Workers

10.7

13.19

79.39

12.00

Costs

Federal government

5.63

6.24

39.67

5.95

Provincial/Territorial governments

0.24

0.24

1.61

0.24

Employers

3.08

3.81

22.91

3.46

Total

8.95

10.28

64.19

9.65

Net Benefits 

1.7

2.91

15.20

2.35

B. Quantified Impacts in Non-$ — e.g. Risk Assessment

Positive impacts

Temporary Foreign Workers Better Protected

609

754

6 857

686

C. Qualitative Impacts

Canadian economy

  • Increased competitiveness, enhanced working conditions for all workers, a more efficient labour market, and a positive international image.

Canadian governments

  • Increased authorities to hold employers accountable for non-compliance with their commitments to TFWs under the program and administer a denial of service.
  • Over time, lower enforcement costs should result (re: labour code violations).
  • Increased confidence in compliance data obtained, allowing decision-makers to be better informed.

Canadian employers

  • Improved HR planning practices and access to TFW.
  • Canadian employers will likely benefit by having continued access to TFW as a labour source (a more secure mid/long-term supply of workers in key sectors).

Temporary foreign workers

  • A safer work environment, protection of workers, benefits of better treatment, and a genuine job when they arrive in Canada.

Unions

  • Employers should better respect collective bargaining provisions, and avoid bringing in TFWs to circumvent labour disputes.
  • Fewer TFW complaints will free up union resources for other priorities.

Non-governmental organizations

  • Ultimately fewer TFWs will request support from NGOs, allowing them to focus on other priorities.

Recruiters (labour market brokers)

  • More businesses/employers will start to use their services to navigate what could increasingly be seen as a process with more concrete risks and more demanding reporting requirements.

Immigration lawyers/consultants

  • More businesses/employers will start to use the services of immigration lawyers and consultants to deal with matters of non-compliance and to mitigate risks.

Quantitative impacts

Section A of Table 1 presents the quantified costs and benefits that have been estimated for the TFW program over a 10-year time horizon. It is estimated that the combined cost of the TFW program to stakeholders would be $9.65M per year, which includes costs to the Government of Canada ($5.95M per year) provincial governments ($240,000 per year), and employers ($3.46M per year). The $9.65M annual cost is spread over approximately 60 000 affected, which equates to an annual estimated cost of $160 per TFW.

The bulk of the government costs relate to program salary dollars (which includes the amount of time an employee would spend on assessing the genuineness of the job offer). Employer costs should come in the form of lost revenue they may incur if the improved accountability framework reduces access to the TFW pool for employers who do not respect their commitments to TFW’s under the TFW program.

Other potential costs, to lawyers, recruiters, and immigration consultants, were deemed to be minimal and are therefore not included in the cost estimation analysis.

It is important to note that the range of potential benefits that should accrue from the TFW program cannot be easily assigned a monetary value. Benefits such as “Canada’s reputation as a destination for TFWs” and the value of a “TFW employee being treated fairly” are exceedingly difficult to quantify and monetize. However, an argument can be made that the benefits of the TFW program can be valued based on the wages paid to TFWs at risk of working for employers who do not respect their commitments under the TFW program. The value of the benefits to workers avoiding inadequate working conditions where they are being treated unfairly would be greater than or equal to their unearned wages.

These benefits were valued based on the assumption that 1% of the total number of TFWs (approximately 60 000 in 2009), believed to be at greatest risk to potential employer and third-party mistreatment, could be affected by non-compliant employers. This is drawn from the November 2007 study, Temporary Foreign Workers - Alberta’s disposable workforce, conducted by the Alberta Federation of Labour. The study found 123 cases affecting TFWs over a six-month period. Scaled to 246 per year, this represents 1.1% of Alberta’s 22 392 TFWs in 2007.

The value of TFW wages was estimated using an average minimum wage in Canada of $8.75, multiplied by 40 hours/week for 50 weeks. The total TFWs affected in the first year was estimated to be 609. The number of TFWs was estimated to grow over the 10-year period of the analysis by the rate of growth in gross domestic product (GDP). It was also assumed that TFW wages would increase at the rate of inflation.

Based on this calculation, the benefits to TFWs were estimated to average $12M per year over the 10-year period. Overall net benefits were estimated to average $2.35M per year, for a total net present value of $15.2M. All figures are expressed in 2009 dollar values.

A sensitivity analysis of the quantified costs and benefits indicates the TFWP regulation amendments would be cost effective (i.e. net present value greater than $0) if the percentage of temporary foreign workers who are employed by non-compliant employers is reduced by more than 0.8% by the program.

As shown in Section B of Table 1, over 680 TFWs are expected to benefit each year from the program, or a total of over 6 850 over the 10-year period.

Qualitative impacts

A number of positive qualitative impacts stemming from the introduction of an enhanced employer accountability regime are expected. These impacts were validated through research into the Australian reform experience and through a high level scenario based on quantitative analysis into the impacts of deterrence on employer compliance. Based on this framework, two significant qualitative outcomes are expected from the TFW program:

  • increased changes in positive employer behaviour over time as deterrence takes effect, leading to a dynamic where “good employers replace bad employers,” resulting in enhanced program integrity; and
  • improved treatment of workers and continuation of Canada’s reputation as a destination for migrant workers.

Based on the comparative analysis between the TFW program and the Australia reform experience, Section C of the table above summarizes the benefits that are expected to accrue to the Canadian economy, governments, employers, temporary foreign workers, unions, non-governmental organizations, recruiters (labour market brokers), and immigration lawyers/consultants.

Distributional impacts

It is important to note that not all of the benefits stemming from the regulatory changes are expected to be equally distributed across all stakeholders. The specific strong geographic, economic sector and employer type concentrations of TFWs suggest that the program provides disproportionate benefits to small- and medium-sized enterprises (SMEs) in specific provinces and economic sectors (i.e. SMEs located in Alberta, British Columbia and Ontario in the agricultural, service and construction sectors).

Rationale

The new Regulations related to genuineness serve a two-fold purpose: to provide a set of criteria by which officers would make an assessment and to clarify that genuineness will be assessed for all offers of temporary employment in which an employer-specific work permit is required. When considering whether or not to issue a work permit, the officer needs to be satisfied

  • that the job offer is real; that is, there is an actual employment opportunity for the applicant; and
  • that the applicant worker and the prospective employer is bona fide; that is, that the employer really needs to, and is able to, employ the worker applicant, and that the applicant really intends to, and is qualified to, fill that particular job.

The specific criteria for assessing genuineness that is set out in subsection 200(5) of the amendments reads as follows:

A determination of whether an offer of employment is genuine shall be based on the following factors:

  • 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;
  • the 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 of intended work.

The genuineness assessment of the job offer will apply to all situations in which an employer-specific work permit is required, and therefore not apply to open work permits, because the employer must be known in order to carry out the assessment.

In addition to the assessment of the genuineness of a job offer related to an application for a work permit or a request for an opinion by HRSDC, the employer’s compliance with previous offers of employment made to TFWs starting in the two years prior to the reception of the request or application will be considered, specifically regarding wages, working conditions and the occupation. Where it has been found that these elements of their job offers have not been respected, then employers will become ineligible to use the TFWP for a period of two years and placed on a list of ineligible employers on CIC’s Web site.

The TFWP is meant to address immediate temporary labour and skills shortages. While there are a number of avenues for higher-skilled workers to achieve permanent residence, there are limited avenues for lower-skilled workers to do so. Situations must be minimized where a worker can stay in Canada for an indefinite period of time with a temporary status. Implementing a maximum cumulative duration for a foreign national to be in Canada as a TFW emphasizes to both workers and employers that employment under the TFWP is intended to be temporary in nature, and encourages the use of appropriate programs and pathways to permanent residence where available. The amendments allow for exemptions from the cumulative duration for certain workers, such as those who perform work pursuant to an international agreement between Canada and one or more countries.

In times of increasing global competition for skilled labour, aging populations, and growing skills and labour shortages, Canada strives to balance long-term and short-term solutions for employers to access the labour and skills needed to sustain Canada’s economy. Canada is committed to ensuring that the TFWP remains as a short-term, temporary employment solution for employers as part of a larger skilled immigration and long-term labour market strategy.

Consultation

A phased Temporary Foreign Worker Program Engagement Strategy was launched in 2007–08 with the intention of consulting with principal stakeholders on issues arising from the regulatory amendments.

The first phase took place in the spring of 2007 with a series of engagement meetings with stakeholders interested in potential changes to the design and delivery of the TFWP; participants at that time included employers, employer associations, sector councils and labour groups; however, it was agreed at the outset that there would be no attribution of comments in the final report in order to encourage frank discussion. Overall, participants of the first phase were supportive of the new regulatory requirements and did not think that accountability provisions were unnecessary or unduly severe. Certain employers were concerned that the increased focus on the genuineness assessment and the need to provide proof of previous compliance with their commitments under the program could impose a bureaucratic burden on employers. Federal authorities assured participants that any such requirements would be kept to a minimum.

The second phase was initiated in the summer of 2007 and is currently ongoing. Working groups were created with provincial and territorial governments, with the goal of addressing specific regional economic priorities and labour market objectives, while taking measures to strengthen protections for temporary foreign workers. Participants in the working groups include provinces (British Columbia, Alberta, Saskatchewan, Manitoba and Ontario), CIC Regions and Headquarters, HRSDC and Service Canada Regions. Participants of phase two have reported satisfaction with the consultation process and expressed desire to see the amendments implemented.

The third phase of the Strategy took place in March 2008 and consisted of consultations with key community organizations and two foreign workers who brought forward the concerns of workers themselves. There was consensus among participants that elements of the regulatory amendments could streamline TFWP processes, reduce the risk of TFW exploitation by introducing accountability, and improve administrative efficiency and worker protection through information sharing. The actions of recruiters were an area of concern and are addressed in the amendments by establishing a provision that would assess the compliance of employers, and any recruiters acting on their behalf, with federal and provincial laws that regulate employment or the recruitment of employees as a factor considered in the genuineness assessment.

Comment period following pre-publication in the Canada Gazette, Part I

The regulatory amendments were pre-published in the Canada Gazette, Part I, on October 10, 2009, followed by a 60-day comment period. During this time, CIC received a total of 102 submissions from stakeholders that included foreign and provincial governments, business associations, schools and the media. The majority of stakeholders expressed their support for the amendments and stated that they are a step in the right direction. Nonetheless, stakeholders demonstrated concern for two clauses of the regulatory amendments: maximum cumulative work permit duration and the determination that the wages, working conditions or occupation provided was different from what was specified in the offer of employment, leading to denial of service to employers for two years. While some stakeholders expressed concern for the notion of genuineness, CIC and HRSDC have worked to develop clear policy guidelines on what constitutes genuineness within the context of a job offer. At the time of coming into force (April 1, 2011), these guidelines will be made available at www.cic.gc.ca/ English/resources/manuals/index.asp#tphp%20idtphp.

With respect to the cumulative work permit duration, although most agreed with having a hiatus, stakeholders believed the six-year lapse was set arbitrarily. Inherent in this comment was the notion that six years may be too long and overly burdensome on TFWs and employers alike. Recognizing these views, CIC has reduced the six-year hiatus to four. A four-year period during which TFWs would not be eligible for a work permit in Canada could still allow officers to be satisfied that a foreign national’s ties to Canada are effectively temporary.

In terms of the determination of significant difference and the administrative pause, employers were particularly concerned with the provisions because it was perceived that the determination of significant difference left too much room for unfounded accusations and it was unclear that natural justice principles would apply. In order to address this concern and in conformity with the principle of natural justice, CIC and HRSDC agreed to introduce into the Regulations the opportunity for employers to satisfy officers that they had a reasonable justification for the observed differences in wages, working conditions or the occupation of the TFW, and where appropriate have made sufficient attempts to provide compensation to address the difference.

Implementation, enforcement and service standards

The regulatory changes have been developed jointly by CIC, HRSDC and CBSA, which are the federal departments with the responsibility for implementation of these new measures. Necessary implementation measures, including training of current staff, will be funded out of existing departmental resources for this purpose. Interdepartmental Working Groups have also been established to develop implementation plans for determining genuineness, imposing a denial of service, and information-sharing. Standard evaluation of the implementation and impacts of the regulatory amendments would be conducted by program departments and is expected to be completed by 2013.

A new Integrity and Horizontal Coordination Division has been created at HRSDC national headquarters to facilitate matters relating to employer accountability in cases where HRSDC has provided an opinion following an employer’s request for TFWs.

These amendments will come into force on April 1, 2011, to provide employers with the opportunity to prepare for the new requirements. At that time, all HRSDC opinion and HRSDC opinion-exempt work permit applications will be assessed against the genuineness factors noted in the Regulations. Furthermore, CIC, CBSA and HRSDC will begin assessing whether the wages, working conditions and the occupation of any TFW by the employer were or were not substantially the same as the terms and conditions of the job offer by the employer for the required period, and enforcing a two-year period where the employer will be prevented from accessing the Temporary Foreign Worker Program if found to be in breach of their commitments under the program. Finally, information sharing between CIC, CBSA and HRSDC with respect to relevant actions or omissions by employers will commence.

Service standards relating to general processing times are not anticipated to be largely affected by these regulatory changes. Processing times are available to the public at www.cic.gc.ca.

Privacy Impact Analysis (PIA)

A Privacy Impact Assessment (PIA) Report was conducted in accordance with Treasury Board guidelines to determine if there are privacy risks associated with the TFWP Regulatory Amendments as they apply to the collection, use and disclosure of personal information, including the publication of a list of ineligible employers on CIC’s external Web site. The information on this list will be kept to a minimum and include what is necessary to ensure that TFWs have the information required to make an informed decision regarding which employers to work for. The report has been forwarded to the Office of the Privacy Commissioner for review.

Contact

Maia Welbourne
Director
Temporary Resident Policy and Program Development Division
Citizenship and Immigration Canada
Jean Edmonds Towers South, 8th Floor
365 Laurier Avenue
Ottawa, Ontario
K1A 1L1
Telephone: 613-957-0001
Fax: 613-954-0850
Email: Maia.welbourne@cic.gc.ca

Footnote a
S.C. 2005, c. 38, ss. 119(1)

Footnote b
S.C. 2001, c. 27

Footnote 1
SOR/2002-227