The Canadian government launched the Temporary Foreign Worker (TFW) program and the International Mobility Program (IMP) to meet labour shortages. Introduced in 1973, the TFW program requires businesses planning to hire temporary foreign workers to apply for a Labor Market Impact Assessment (LMIA). However, the IMP does not require an LMIA to hire a temporary foreign worker, as it falls under international trade agreements with other countries. While workers through IMP are economically, socially and culturally beneficial to Canada, this program also provides opportunities for Canadians and permanent residents to work in those countries.
Although TFWs have the same rights and protections as workers who are Canadian citizens and permanent residents, there have been allegations of forced labour, unsafe working conditions, and lesser wages experienced by TFWs. In September this year, the Canadian government made a series of amendments to the Immigration and Refugee Protection Regulations (Temporary Foreign Workers) to safeguard the rights of foreign temporary workers employed in Canada.
According to Employment and Social Development Canada (ESDC), the amendments address three areas: “protect temporary foreign workers, ensure the integrity of the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP), and address some technical issues.”
The new amendments put the onus on employers to provide TFWs with “up-to-date information about their rights in Canada” and ensure they receive the information “on or before the first day of work.” ESDC adds that employers must provide the information in the language of choice of the employee, either English or French and that such details must be “available to the temporary foreign worker throughout their period of employment.”
In addition to these obligations, employers of temporary foreign workers must provide them with a signed copy of the employment agreement on or before their first day of work; make reasonable efforts to provide a workplace free of abuse, including reprisals; get and pay for private health insurance that covers emergency medical care until they are eligible for provincial or territorial health insurance coverage (some exceptions apply); and, make reasonable efforts to give access to health care services if employees become injured or ill at the workplace.
Under the International Mobility Program, workers have the same rights except for the requirement for employers to obtain and pay for private health insurance until the employee is eligible for territorial or provincial health care. Nonetheless, employers must help workers access health care services if they become sick or hurt at work.
The regulations state that employers must not force employees in both categories to work when they are sick, injured or in unsafe conditions. Also, employers cannot assign duties not listed in the employment agreements nor punish them for cooperating with worksite inspections carried out by the government. It has also become illegal for employers to take their passports or work permit, change their immigration status or have them pay recruitment fees.
The new amendments require employers applying for a Labor Market Impact Assessment (LMIA) to commit to an employment agreement with potential foreign workers to ensure they know how much they will earn and the nature of their work.
ESDC requires employers to confirm before applying for LMIAs that they have not charged fees from potential candidates and will not do so in the future. Suppose employers or their recruiters have charged these fees; they must show that “they made all reasonable efforts to comply with the conditions, and they subsequently provided full compensation to the temporary foreign worker for the fees that were incorrectly charged or recovered.” The only payments required of temporary workers are for work permits, temporary visas and temporary resident permits.
The new amendments put the onus on employers to provide TFWs with “up-to-date information about their rights in Canada” and ensure they receive the information “on or before the first day of work.” Employers must provide the information in the language of choice of the employee, either English or French and such details must be “available to the temporary foreign worker throughout their period of employment.”
— Employment and Social Development Canada (ESDC)
Where necessary, the amendments permit ESDC and Immigration, Refugees and Citizenship Canada (IRCC) to request documentation from third parties, such as banks or payroll companies, to ascertain whether employers comply with the regulatory conditions without the consent of the employer or temporary worker, but in keeping with the Privacy Act.
Furthermore, ESDC is authorized to suspend an employer’s LMIA where there are concerns that the employer may have failed to adhere to the regulations. ESDC may lift the suspension only when it is satisfied that the employer has complied with the requirements.
The new amendments also allow ESDC to consider two factors on a stand-alone basis when processing an LMIA request. Before the amendments, ESDC considered seven factors, and if an employer did not meet one or two of those conditions, it did not necessarily lead to a refusal of the LMIA. Under the current amendment, the other factors will remain part of the overall assessment process. However, ESDC will consider on a pass-or-fail basis whether the proposed foreign workers’ wages are consistent with pay rates for that occupation and “whether the employment of the foreign worker is likely to adversely affect the settlement of any labour dispute or the employment of any person involved in the dispute.” Whether or not the employer meets the other factors, the employer must pass these two conditions to qualify for the LMIA.
The new regulations allow ESDC to gather personal information of employers and temporary foreign workers through the TFW confidential tip line, the online reporting tool, or media reports and share them with inspection officers of IRCC to determine that employers meet the IMP requirements.
Canada is currently facing a severe labour shortage, and according to government statistics, employers are struggling to fill nearly a million vacancies. IRCC reports that in 2021, under the TFWP and the IMP, a total of 599,300 work permits (new and extensions) were issued. In January 2022, the number of extensions and new permits issued under the two categories totalled 55,671.
Typically, the most employment opportunities are in the farming industry, though the restaurant sector is increasingly turning to temporary foreign workers to fill job openings. In this field, the highest demand is for cooks.
The labour shortage has increased the demand for workers in the construction and fish processing industries, food and beverages, and trucking and harvesting labourers.