On April 24, 2014, Jason Kenney, the Minister of Employment and Social Development, abruptly announced a moratorium on the Food Services Sector’s ability to participate in the Labour Market Opinion (“LMO”) program. Effective immediately, Service Canada will refuse to process LMO applications from employers in the Food Services Sector. As well, all current LMOs for employers the Food Services Sector are suspended.
The Businesses that are Affected
The businesses that are affected are employers that are classified in the 2002 North American Industrial Classification System as Food Services and Drinking Places.
This industry comprises establishments that are primarily engaged in preparing meals, snacks, and beverages for immediate consumption on and off the premises. It does not include food services activities that occur within establishments such as hotels, civic and social associations, amusement and recreation parks, and theatres. However, leased food-service locations in facilities such as hotels, shopping malls, airports, and department stores are included.
Examples of businesses which are included include:
- Full-Service Restaurants
- Limited-Service Eating Places
- Mobile Food Services
- Food Services Contractors (such as establishments that provide food services to airlines, and operations that run food concessions at sports and similar venues)
- Drinking Places
Examples of businesses which are not included in the moratorium include:
- Organizations that prepare and/or deliver food for the needy
- Theatre Companies and Dinner Theatres
- Vending Machine Operators
- Direct Selling Establishments (such as organizations that sell fruit, vegetables, and other non-prepared food items from mobile equipment)
- Civic and Social Organizations (that operate a bar for their members)
The Occupations that are Included
For the Food Services Sector, the occupations that are encompassed are the following occupations from the 2006 National Occupational Classification (“NOC”):
- Food Counter Attendants, Kitchen Helpers, and Related Occupations
- Restaurant and Food Services Managers
- Food Services Supervisors
- Food and Beverage Servers
- Sales, Marketing and Advertising Managers
- Retail Trade Managers
- Accommodation Services Manager
- Other Services Managers
- Retail Trade Supervisors
- Executive Housekeepers
- Dry Cleaning and Laundry Supervisors
- Cleaning Supervisors
- Other Service Supervisors
- Technical Sales Specialists – Wholesale Trade
- Butchers, Meat Cutters and Fishmongers – Retail and Wholesale
- Sales Representatives – Wholesale Trade – Non-Technical
- Retail Salespersons and Sales Clerks
- Maitres d’hotel and Hosts/Hostesses
- Other Personal Service Occupations
- Grocery Clerks and Store Shelf Stockers
- Other Elemental Sales Occupations
- Security Guards and Related Occupations
- Light Duty Cleaners
- Specialized Cleaners
- Janitors, Caretakers and Building Superintendents
- Dry Cleaning and Laundry Occupations
- Ironing, Pressing and Finishing Occupations
- Other Elemental Service Occupations
The Affect of the Moratorium
There are two main consequences of the moratorium. The first is that Service Canada will refuse to process LMO applications for any of the above occupations for employers in the Food Services Sector. They will not accept new applications, and they will be refunding the processing fees of Food Service Sector employers with applications in process.
Secondly, as a result of all existing LMOs in the Food Services Sector being suspended, Citizenship and Immigration Canada (“CIC”) will suspend the processing of work permits while the moratorium is in effect. CIC has already begun e-mailing work permit applicants confirming same. CIC has not yet indicated whether it will also refund processing fees, nor has Service Canada announced whether it will refund processing fees for unused LMO spots. [Update – In Operational Bulletin 574 – Instructions in regard to the Temporary Foreign Worker Program Food Services Sector Labour Market Opinion and Work Permit Suspensions, CIC instructed officers to suspend processing of work permits without issuing refunds.]
Foreign nationals already working in Canada who have submitted an application to extend their work permit will have implied status if their application was submitted prior to the expiry of their present work permit. This means they will be able to remain in Canada and continue working for the same employer that appeared on their original work permit. They will continue to have implied status until a final decision is made on their application.
Employees in Canada who will be Impacted
The moratorium extends to work permit extensions. Employees in occupations affected by the LMO moratorium will not be able to extend their employment in Canada through the LMO program.
International graduates on Post-Graduate Work Permits (“PGWP”) are also impacted. Even though the International Graduates LMO Program does not require that employers demonstrate recruitment, employers seeking to extend the employment of International Graduates beyond the expiry of their PGWP have not been exempted from the moratorium.
Finally, owners and operators of restaurants have not been exempted from the moratorium.
Employers in the Food Services Sector have not been completely shut out of the Temporary Foreign Worker Program. They can still obtain LMOs for NOCs other than those listed above.
As well, many programs remain available to the Food Services Sector, including the Intra-Company Transferee Program, the Reciprocal Work Permit Program, numerous Provincial Nominee Programs, and, with some exceptions, the Canadian Experience Class.
More information about the moratorium can be found here.
Citizenship and Immigration Canada has released an Operational Bulletin on the moratorium which can be found here.
Please contact us if you have any questions or concerns about these changes.