If you are a multi-national employer looking to transfer an employee to Canada what is the minimum that you should be forced to be that employee? Is it the minimum wage the employee’s current country? Is it the minimum wage in the employee’s future respective province? Or should it be more? Should it be on the higher end of what that employee’s position generally plays? Or should anywhere in the acceptable range of salaries be permitted? Does the fact that it is a transfer as opposed to a Canadian company hiring a foreign worker even matter?
These are the questions that we explore in today’s post.
The Intra-Company Transferee Program
A key feature of temporary foreign worker law is the delicate balancing act of protecting the Canadian labour market while ensuring that companies can hire the employees that they want. The Canadian government has attempted to navigate this tight rope through the requirement that companies wishing to hire foreign workers first obtain a Labour Market Opinion confirming that the hiring of a foreign worker will not negatively impact the Canadian labour market.
There are several exceptions to this requirement, however. In a previous post, I discussed the numerous alternatives to the requirement that foreign workers and their companies obtain a Labour Market Opinion. This post was ultimately published in Canadian Immigrant Magazine.
One of the exceptions to the Labour Market Opinion requirement is for Intra-Company Transferees (“ICTs”). A foreign national working abroad for Company A can be transferred to a Canadian affiliate of Company A if that person is of a managerial or executive capacity, or has specialized knowledge. Whether or not an employee possesses specialized knowledge is determined by analyzing numerous factors, including education, knowledge, experience, salary, relevant training, and supporting documentation.
A specialized knowledge worker would normally possess the following characteristics:
- knowledge that is uncommon (i.e., beyond that generally found in a particular industry and within the company);
- knowledge that has been gained through extensive experience and is difficult to acquire in a short period of time;
- difficulty to train another worker to assume such duties;
- the required knowledge is complex in that it cannot be easily transferred; and
- a person possessing such knowledge would be in a position that is critical to the well-being or productivity of the Canadian employer.
The Thorny Issue of Wages
An area of the law that recently caused much confusion was what the salary requirement was for ICTs, if there was one at all. Different visa offices appeared to have different standards. Accordingly, many representatives assumed that there was no wage requirement. Others assumed that the wage had to be within the Canadian range. Some even speculated that the wage was standard was the same as for Labour Market Opinions.
A recent Operational Bulletin seeks to end the confusion. Citizenship and Immigration Canada’s policy on the salary requirement for ICTs is that the ICT’s salary must be “realistic” in terms of Canadian wage-levels for the occupation concerned. An ICT’s should “normally approximate” the average wage for the stated occupation in the specified geographical location while working in Canada. Allowances, such as hotel and transportation, are not to be included in the calculation of overall salary. Only allowances compensated in monetary form and paid directly to employees are to be included.
Although the Operational Bulletin states that salaries should “normally approximate” the average salary for a region, and that an application is not to be refused on the basis of salary alone, one would be wise to err on the safe side.
Tying it Together
In drafting a policy which provides that the ICTs salary requirements will generally be the same as for those who require a Labour Market Opinion, Citizenship and Immigration Canada has taken the clear position that while employers wishing to transfer an employee to Canada will benefit from not having to show that no Canadian could take the position, such employers will not be able to use the ICT to pay an employee less than what a Canadian counterpart would likely expect.