Vol. 147, No. 16 — July 31, 2013
SOR/2013-150 July 18, 2013
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2013-876 July 18, 2013
Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 32 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. (1) Section 203 of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by adding the following after subsection (1):
Effect on labour market — language
(1.01) For the purposes of paragraph (1)(b), the employment of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada if the offer of employment requires the ability to communicate in a language other than English or French, unless
- (a) the employer or group of employers demonstrates that the ability to communicate in the other language is a bona fide requirement for performing the duties associated with the employment;
- (b) the offer of employment relates to work to be performed under an international agreement between Canada and one or more countries concerning seasonal agricultural workers; or
- (c) the offer of employment relates to other work to be performed in the primary agriculture sector, within the meaning of subsection 315.2(4).
(2) The portion of subsection 203(3) of the Regulations before paragraph (a) is replaced by the following:
Factors — 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, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:
COMING INTO FORCE
2. These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Temporary Foreign Worker Program (TFWP) helps employers address their immediate skills and labour needs when qualified Canadians and permanent residents are not available. Employers who wish to hire a temporary foreign worker (TFW) must, unless exempted by the Immigration and Refugee Protection Regulations, submit a request for an opinion from Human Resources and Skills Development Canada which includes an assessment of the labour market impact. Multiple TFW positions can be included on a single labour market opinion (LMO) request. If a positive or neutral LMO is obtained, the foreign national applies to Citizenship and Immigration Canada (CIC) for a work permit and, if this is granted, may then enter Canada as a TFW.
The TFWP is jointly administered by Human Resources and Skills Development Canada (HRSDC), CIC, and the Canada Border Services Agency (CBSA) under the authorities of the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR or the Regulations). HRSDC assesses requests from employers seeking to hire TFWs and issues an LMO stating whether the entry of the TFW is likely to have a positive, neutral, or negative impact on the Canadian labour market as part of its opinion on the employer’s offer. CIC is responsible for issuing a work permit to the TFW, which authorizes the worker to work in Canada. CBSA, on behalf of CIC, determines admissibility at the port of entry (e.g. an airport or border crossing) when the worker arrives in Canada.
When assessing an employer’s request to hire a TFW, HRSDC considers available labour market information for the region and for the occupation to determine whether a labour shortage exists, whether the wage offered to the foreign national is consistent with the prevailing wage rate for the occupation, whether the working conditions meet generally acceptable Canadian standards, and whether the employer has made reasonable efforts to hire or train Canadians. HRSDC also assesses the genuineness of the job offer and the employer’s past compliance with program requirements before an LMO is issued.
The Government of Canada is committed to ensuring that the TFWP meets its objectives as a program of last resort after employers have exhausted their search for Canadians and permanent residents. Therefore, the Government of Canada has implemented a suite of programmatic changes to strengthen the TFWP.
In 2011, amendments were made to the IRPR to provide for a more rigorous LMO assessment at the request stage, including factors to guide the assessment of the genuineness of a job offer. The 2011 amendments also included provisions to make employers 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 to a TFW that was not substantially the same as what was offered in the original job offer. These changes aimed to improve the authority to monitor employers to better protect the Canadian labour market and to reduce the potential for exploitation of TFWs by employers.
On June 29, 2012, the Government introduced legislative changes to the IRPA through the Jobs, Growth, and Long-term Prosperity Act to enhance CIC and HRSDC’s employer compliance monitoring capacity. The IRPA amendments authorize the Governor in Council to confer certain powers and duties on the Minister of HRSDC and to make regulations respecting the requirements that may or must be imposed on employers in relation to the authorization of a foreign national to work in Canada, and the power to inspect for the purpose of verifying employers’ compliance with these requirements.
In Economic Action Plan 2013 (Budget 2013), the Government committed to taking action to reform Canada’s TFWP to support economic recovery and growth and ensure Canadians are given the first chance at available jobs. The Economic Action Plan 2013 Act, No. 1, which received Royal Assent on June 26, 2013, introduced legislative changes that are part of a broader review of the TFWP undertaken by the Government to ensure that the program is being used as originally intended. The amendments to the IRPA grant the ministers of CIC and HRSDC authorities to issue instructions to revoke work permits and LMOs issued in relation to work permit applications, respectively, where justified by public policy considerations. In addition, the amendments grant the Minister of HRSDC the authority to issue instructions to refuse to process and to suspend an HRSDC opinion that has already been issued as well as to cease the processing of LMOs where justified by public policy reasons.
Stemming from the ongoing review of the TFWP, and consistent with the commitments presented in Canada’s Economic Action Plan 2013, the Government of Canada announced on April 29, 2013, its intention to restrict non-official languages (languages other than English and French) from being imposed by employers as a job requirement.
Currently, language requirements in the LMO assessment process are assessed through information provided by the employer on the LMO request. Under the current regulations, employers are asked to specify the language or languages of employment, but are not required to provide a rationale or proof as to why a job may require proficiency in a language other than French or English.
Some employers include the ability to communicate in a language other than French or English as a necessary condition of employment, thereby potentially excluding Canadians and permanent residents from accessing those job opportunities.
These regulatory amendments aim to do the following:
- (1) reduce the risk that Canadians and permanent residents might be excluded from job opportunities by restricting employers from requiring languages other than French or English for offers of employment to TFWs;
- (2) provide for an exception where employers can demonstrate that they require languages other than French or English for performing the duties associated with the employment; and
- (3) protect Canada’s food security by exempting the Seasonal Agricultural Worker Program (SAWP) and other primary agricultural occupations from the new language restrictions, as there are proven acute labour shortages in this industry and the unfilled jobs are seasonal in nature. HRSDC and CIC officers, however, retain discretion to assess genuineness on a case-by-case basis.
The amendments introduce a new provision in the IRPR. This provision specifies that the employment of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada if the offer of employment requires the ability to communicate in a language other than English or French unless
- 1. the employer or group of employers can demonstrate that the ability to communicate in a language other than French or English is a bona fide requirement for performing the duties associated with the employment;
- 2. the offer of employment relates to work to be performed under an international agreement between Canada and one or more countries concerning seasonal agricultural workers (SAWP); or
- 3. the offer of employment relates to other work to be performed in the primary agriculture sector.
In instances where a language other than French or English is required, employers who can clearly demonstrate that this language is essential for the job will still be able to obtain a positive or neutral LMO. Based on the assessment of the employer’s rationale, employers who identify a language other than French or English and fail, however, to demonstrate that it is a bona fide occupational requirement will receive a negative opinion unless they fit within the other exceptions.
The amendments have the effect of subjecting the non-official language requirements imposed by employers to more scrutiny as part of the initial test for an LMO application, and thereby, if the LMO application fails this test, it will not be assessed for other labour market factors, such as wages, occupation and working conditions.
As employers are required to advertise positions prior to applying to hire TFWs, employers’ advertisements will also have to reflect the language requirements introduced in these amendments.
For the purposes of this regulatory proposal, work in the primary agriculture sector is defined as work that is performed within the boundaries of a farm, nursery or greenhouse, and involves
- (a) the operation of agricultural machinery;
- (b) the boarding, care, breeding, sanitation or other handling of animals, other than fish, for the purpose of obtaining animal products for market, or activities relating to the collection, handling and assessment of those products; or
- (c) the planting, care, harvesting or preparation of crops, trees, sod or other plants for markets.
Work in the primary agriculture sector does not include work involving
- (a) the activities of agronomists or agricultural economists;
- (b) landscape architecture;
- (c) the provision of feed lot services;
- (d) the preparation of vegetable fibres for textile use;
- (e) activities related to commercial hunting and trapping; or
- (f) veterinary activities.
It has been determined that the “One-for-One” Rule applies to these amendments, as they would increase the administrative burden on those businesses that would be required to demonstrate that a language other than French or English is an essential job requirement. The amendments are, therefore, considered to be an “IN” under the Rule. The total annualized average increase in administrative costs is estimated to be $115,870, or approximately $20 per affected employer.
It is estimated that 5 845 employers each year will be impacted by the requirement to demonstrate that a language other than English or French is required for the job. This estimate is based on the number of employers each year who currently identify a language other than French or English as a job requirement, excluding the SAWP, and primary agriculture. The original number of affected employers was then reduced by 30%, as it is expected that some of these employers will begin to list only French or English as the language requirement rather than provide a justification for another language.
It is estimated that employers will take on average 15 minutes to fill in the justification on the LMO request form. This estimate was validated by a sample of employers and third-party representatives and by HRSDC’s service delivery program. Further, TFWP statistics show that each employer will submit two LMO requests per year on average, and that 40% of employers will use the services of a third party, such as an immigration lawyer, to complete the request. The estimated time to draft a justification was multiplied by the average number of requests per year, the number of affected employers, and the wage for the person writing the justification (administrative personnel in 60% of cases and immigration lawyers in 40% of cases) to generate the annualized average increase in administrative costs.
It is worth noting that the TFWP has developed an online request submission tool (TFWP Web Service), available to employers since 2011, to submit LMO requests. It is a free tool that has been developed to improve service to employers. Web Service allows employers to
- manage all of their information in relation to their LMO requests;
- authorize appointed representatives from within the company (and/or third parties) to submit LMO requests on their behalf;
- submit online requests through a secure channel using an electronic signature and include all necessary documentation electronically;
- track the status of their requests; and
- download and print correspondence from HRSDC related to their LMO requests.
More than 2 000 employers participating in the TFWP are already using Web Service. As the employer community gradually increases its use of Web Service, the affected employers who would be required to draft a rationale could offset their administrative burden by using this tool to save on costs. If employers choose to apply online, they will be able to upload their rationale and any supporting information onto Web Service, and thus reduce mailing or faxing costs.
Small business lens
The small business lens does not apply to these amendments, as the increased costs to affected small businesses would be negligible. An analysis of the impact of these amendments has been undertaken to assess any potential burden on small businesses. Even though the small business lens does not apply, HRSDC has endeavoured to ensure that growth and productivity rates of small businesses participating in the TFWP are not impeded in any manner. HRSDC has taken into consideration the fact that the TFWP is used by a significant number of small businesses, and, therefore, has not added any significant burden on small businesses. These businesses would not need to spend exorbitant amounts of funds or dedicate time to fill out additional forms or communicate with HSRDC to meet the language requirements. Rather, small businesses that depend on the TFWP to fill labour and skills shortages will continue to hire TFWs, and, when justified, be able to require languages other than French or English as a job requirement.
Human Resources and Skills Development Canada conducted consultations with representatives from various national and regional employer associations, labour organizations, and immigrant communities. These consultations sought input on HRSDC’s intention to introduce amendments to restrict the ability of employers to impose language requirements other than English or French to help ensure Canadians and permanent residents are not displaced as a result of an employer’s hiring of TFWs. Overall, the proposal to restrict employers from requiring a language other than French or English did not raise any major opposition from the various stakeholders.
Stakeholders who will be impacted by the language requirement voiced different supporting statements about these amendments. Groups representing small and medium enterprises in the western regions were concerned that demonstrating bona fide language requirements would add costs, delays and red tape.
Labour organizations, however, were in favour of restricting language requirements. As an example, the Canadian LabourCongress supported these amendments. However, some labour organizations, particularly the United Steelworkers, expressed the need for more changes to the TFWP. For example, the Canadian Auto Workers expressed a need to further improve the employment rights of all migrant workers.
Migrant organizations, such as the Canadian Council for Refugees, stated that migrant workers have little access to information about their rights, are given no support services, and are isolated by geography and language. The proposed amendments restricting employers’ ability to impose non-official language requirements were received with positive statements, noting that these amendments are in line with initiatives to protect migrant workers and improve settlement services, including language abilities of migrant workers.
No concerns were raised by industries where employers most require TFWs to use a language other than French or English. For instance, employers in agriculture, forestry and fishing, manufacturing and construction industries stated that these amendments are in line with TFWP program objectives to strengthen the genuineness of job offers and to ensure that employers give Canadians and permanent residents a first chance at jobs before hiring TFWs.
No reactions have been received from provinces or territories.
The amendments will not affect all employers participating in the TFWP, as the Seasonal Agricultural Workers Program (SAWP) and occupations in primary agriculture are exempted. Employers hiring TFWs for these occupations will not experience any impact.
The exemptions for the agricultural streams are based on the fact that a high volume of TFWs are regularly requested to work under the SAWP and in the primary agriculture industry because there is a clear labour shortage in this sector, work is often seasonal in nature, and a predictable supply of labour is required. Therefore, no additional burdens were deemed necessary for these sectors. Imposing language requirements on employers hiring TFWs for these occupations would severely limit access to available labour. There is also a risk that limiting access to TFWs for primary agriculture occupations could have an adverse impact on Canadians’ access to safe and affordable food, as there would be an increased potential for wastage and food shortages. HRSDC and CIC officers retain discretion to assess genuineness on a case-by-case basis for these groups.
Many other employers participating in the TFWP would not have to alter their behavior to ensure that their job offers are not affected by the new language restrictions. Over 75% of employers using the TFWP already require only French and/or English, and therefore, they will not experience any additional burden by virtue of the new restrictions. They will simply continue to use the existing question on the LMO request to specify the language of work with no additional cost or administrative burden.
However, employers who will continue to require languages other than French or English for the workplace will be impacted. They will, however, have two possible choices available to them:
- (1) They may change the way they operate their business so as to no longer require languages other than French or English for the positions they wish to fill; or
- (2) They will have to provide a justification that their requirement for a language other than French or English is essential for performing the duties of the job.
It is possible that some employers may have been filling labour shortages by hiring TFWs with a language other than French or English simply because it was more convenient or economical for them to do so. The impact on these employers is not anticipated to be severe. In cases where these employers do require a language other than French or English for the job, they will be able to continue to hire TFWs with the required language choice, as long as they demonstrate that a language other than French or English is essential for the job.
The greatest impacts of the amendments will be on employers located in the provinces with the most TFWs: Alberta, Quebec, Ontario, and British Columbia. The main industries with a higher proportion of employers requiring non-official languages that are expected to be impacted are construction (trades helpers and labourers); accommodation and food services (cooks); manufacturing and food processing; arts and entertainment (performers); and transportation (truck drivers).
IRPA and its regulations do not currently restrict employers’ ability to require a language other than French or English for the job, nor do the present Regulations explicitly authorize HRSDC to systematically require all employers to demonstrate the need for a language other than French or English for a particular job. The amendments, therefore, are necessary to ensure that HRSDC systematically uses all job-related information, including language requirements used by the employer for the job, to strengthen the LMO assessment process, and help ensure that Canadians and permanent residents are given the first chance at available jobs.
The amendments to introduce a language requirement are proportionate to the degree and type of risk presented by the issue, and exemptions from the restriction have been included where appropriate to provide flexibility for particular TFWP streams to protect Canada’s food supply. The amendments help ensure that Canadians and permanent residents are given the first chance at available jobs by allowing HRSDC to issue negative labour market opinions to employers when their requirement of a language other than French or English is not justified.
Attempts to address this issue through policy instruments, operational directives, or through communications with employers during the assessment of the LMOs have not been able to achieve the objective to ensure that Canadians and permanent residents are given the first chance at available jobs. Therefore, restricting employers from requiring languages other than French or English through regulatory amendments is necessary.
Implementation, enforcement and service standards
The regulatory amendments will come into force on the date they are published in the Canada Gazette, Part II. The language requirement created by these proposed amendments will be implemented by building on the current authorities of the TFWP to assess the employer’s language of choice for the workplace as part of the LMO assessment process. Program officers will be advised that when TFWP receives requests from employers who require a language other than French or English, officers must ensure that the employer provides a rationale demonstrating that the nonofficial language is essential for the job. They will be instructed to look for information (where applicable) to discern whether a language skill is consistent with the reasonable employment needs for that position.
In the LMO request assessment, officers will consider whether the language other than French or English is essential for the position, as the language requirement must be related to the nature of the business, and must be consistent with the regular activities of the employer (e.g. a translation company or a tour company catering to Korean tourists). In any situation, the employer must demonstrate that the language requirement is relevant and necessary to the position being offered.
Necessary implementation measures, including training of CIC and HRSDC officers, would be funded out of existing departmental resources for this purpose. Existing communications products would be updated to reflect the verification of the language requirements and the consequences should employers not be able to demonstrate the need for this requirement.
Temporary Foreign Worker Directorate
Human Resources and Skills Development Canada
140 Promenade du Portage, Phase IV, 4th Floor