Digital Signatures in the Temporary Foreign Worker Program

One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.

Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.

TFWDigitalSignature

 


Strict Interpretation of Compliance in the Foreign Worker Program

[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.]

Back in 2013, Canada’s temporary foreign worker program was rocked by wellpublicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance.

The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first.

On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to ban a company from hiring foreign workers for two years. The decision, Farms v. Canada (Employment and Social Development), provides much-needed guidance to both companies and to the government on how foreign worker compliance regime should be interpreted.

 Conditions for hiring foreign workers

Employers of foreign workers must agree to comply with numerous conditions outlined in Canadian immigration legislation. The most significant one is the requirement to provide foreign workers with wages and working conditions that are substantially the same as — but not less favourable than — those set out in their offers of employment. Essentially, this means that employers must strictly follow their employment contracts with regards to wages, working hours, duties and benefits.

Other requirements employers must follow include complying with all federal and provincial laws that regulate employment and making reasonable efforts to provide workplaces that are free from abuse. In cases where employers made certain labour market promises (such as job creation or skills transfer to Canadians) to receive permission to employ foreign workers, they must they fulfill those commitments.

Canadian employers of foreign workers can also be subject to both inspections and audits by government officers, and must provide any documentation relevant to their compliance on demand. In fact, the government announced it will be increasing onsite inspections of workplaces that employ foreign workers.

Non-compliance with any conditions will only be justified in certain circumstances, including changes in federal or provincial law, new measures by the employer in response to dramatic changes in economic conditions, or errors that were either made in good faith or as the result of administrative error (if the employer subsequently made sufficient efforts to provide compensation to foreign employees).

Since 2015, the consequences of non-justified non-compliance are administrative monetary penalties and bans on hiring foreign workers.

 Conditions have strict interpretations

In Farms v. Canada, the Federal Court held that the justification provisions mentioned above must be interpreted strictly so the Canadian government can prevent the abuse of foreign workers. The often tenuous circumstances of their employment can lack the normal safeguards preventing abuse otherwise available to most Canadian workers.

The court further found that a good faith justification only works where the non-compliance conduct can be seen to benefit the foreign worker and is in the worker’s interest. As well, where a labour market impact assessment application form or a contract employing foreign workers lists conditions and terms of employment, an employer will be unable to claim a good faith lack of knowledge of any conditions or requirements.

Even where non-compliance may factually be justified, employers will not be able to claim that a breach was justified if they do not document any modifications to employment contracts.  In Farms v. Canada, for example, the employer deducted pay from its foreign worker employees’ first paystubs in order to provide them with cash advances, and even produced a letter from a former employee that confirmed that he had received the cash payment. However, the Federal Court determined that such proof was not sufficient, and that employers had to keep records of changes, and obtain written consent from their employees as it occurred.

 Not enough guidance for employers?

At the same time that the Federal Court upheld ESDC’s decision to ban the employer from hiring foreign workers for two years, the Federal Court also chastised ESDC for not providing clear guidance on its website as to what employers had to do to demonstrate compliance with certain conditions, and specifically noted that small businesses may not know what is required.

The most important thing they should recognize, however, is the need to strictly follow the contractual obligations in their employment agreements with foreign workers. Given the decision in Farms v. Canada, it is important that any ambiguities be interpreted strictly and in favour of the foreign workers.


Procedural Fairness in LMIA Applications

Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low.  In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):

The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.

However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.

Extrinsic Evidence

If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.

Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.

It does, however, include information derived from third parties that is not publicly available.  For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.


Priority Processing in LMIA Applications

Labour Market Impact Assessment (“LMIA”) applications typically take 1-2 months to process. However, the Department of Employment and Social Development Canada (“ESDC”) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard.

High-Demand

To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located.

Tables about unemployment, Median wages, 10-day speed of service

NOC
2006
NOC
2011
Occupation Title
7212 7202 Contractors and supervisors, electrical trades and telecommunications occupations
7215 7204 Contractors and supervisors, carpentry trades
7219 7205 Contractors and supervisors, other construction trades, installers, repairers and servicers
7271 7271 Carpenters
7216 7301 Contractors and supervisors, mechanic trades
7217 7302 Contractors and supervisors, heavy equipment operator crews
8211 8211 Supervisors, logging and forestry
8221 8221 Supervisors, mining and quarrying
8222 8222 Contractors and supervisors, oil and gas drilling services
8241 8241 Logging machinery operators
8252 / 8253 8252 Agricultural service contractors, farm supervisors and specialized livestock workers
9211 9211 Supervisors, mineral and metal processing
9212 9212 Supervisors, petroleum, gas and chemical processing and utilities
9214 9214 Supervisors, plastic and rubber products manufacturing
9231 9231 Central control and process operators, mineral and metal processing
7351 / 7352 9241 Power engineers and power systems operators
9424 9243 Water and waste treatment plant operators
7231 7231 Machinists and machining and tooling inspectors
7261 7233 Sheet metal workers
7263 7235 Structural metal and plate work fabricators and fitters
7264 7236 Ironworkers
7265 7237 Welders and related machine operators
7241 7241 Electricians (except industrial and power system)
7242 7242 Industrial electricians
7243 7243 Power system electricians
7244 7244 Electrical power line and cable workers
7245 7245 Telecommunications line and cable workers
7246 7246 Telecommunications installation and repair workers
7251 7251 Plumbers
7252 7252 Steamfitters, pipefitters and sprinkler system installers
7253 7253 Gas fitters
7311 / 7317 7311 Construction millwrights and industrial mechanics
7312 7312 Heavy-duty equipment mechanics
7313 7313 Refrigeration and air conditioning mechanics
7314 7314 Railway carmen/women
7315 7315 Aircraft mechanics and aircraft inspectors
7318 7318 Elevator constructors and mechanics
7371 7371 Crane operators
7372 7372 Drillers and blasters – surface, mining, quarrying and construction
7373 7373 Water well drillers
8231 8231 Underground production and development miners
8232 8232 Oil and gas well drillers, servicers, testers and related workers
9232 9232 Petroleum, gas and chemical process operators

Highest-Paid

To be considered a Highest-Paid LMIA, the wage being offered for the position is at or above the top 10% of wages earned by Canadians or permanent residents in the province/territory, where the job is located.  This amount is:

Tables about unemployment, Median wages, 10-day speed of service

Province/Territory Wages prior to
April 30, 2016
2014 Wage ($/hour)
Wages effective
April 30, 2016
2015 Wage ($/hour)
Alberta $47.60 $48.74
British Columbia $40.38 $41.63
Manitoba $38.46 $40.00
New Brunswick $36.06 $37.00
Newfoundland and Labrador $42.53 $42.00
Northwest Territories $55.00 $55.00
Nova Scotia $38.00 $38.46
Nunavut $53.85 $54.00
Ontario $43.75 $45.19
Prince Edward Island $35.00 $35.90
Quebec $38.71 $40.00
Saskatchewan $43.17 $44.23
Yukon $43.59 $45.67

Short Duration

To constitute a Short Duration LMIA, the length of employment must be 120 calendar days or less. It is applicable for any occupation. The wage being offered for the requested occupation must be at or above the provincial / territorial hourly median wage for the occupation.

Things to Note

There are several things that employers should know about the 10 day service standard, including that:

  • An Employer Compliance Review or Inspection takes precedence over the 10-Day Speed of Service.
  • To be eligible for the 10-Day Speed of Service a file must be complete. If additional information is required, an application will alos be removed.
  • Complex files will also be removed from the 10-Day Speed of Service.


Labour Market Impact Assessments- Prevailing Wage

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

Continue reading “Labour Market Impact Assessments- Prevailing Wage”


Service Canada Transition Plans

On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  One of the changes was:

Introduction of Transition Plans for High-Wage Positions

Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada.  An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.

Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:

  • require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
  • have a limited duration of between:
    • 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
    • more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).

As part of the Transition Plan, employers are required to conduct the all of the following:

  • General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
  • Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training. This activity is additional to that conducted for the minimum recruitment and advertisement requirement. If the underrepresented group is the same, the activities must be different. If the activities are for the same group, they must be substantially different.
  • Permanent Resident Requirement – Employers must conduct at least 1 distinct activity that supports a TFW’s permanent transition to Canada. This activity could include assisting with language training.

Employers will be required to report on the results of the commitments they have made in their Transition Plan if they are selected for an inspection, or choose to re-apply for a subsequent LMIA for the same occupation and work location.

In today’s post, I wish to elaborate on the above.

Continue reading “Service Canada Transition Plans”