On July 31, 2013, the Ministry of Employment and Social Development Canada (“Service Canada“) introduced changes to the Labour Market Opinion (“LMO“) process which took affect immediately. Today’s changes, as well as previous, recent ones, greatly increase the burden for companies applying for LMOs. Today’s changes were comprehensive. We have provided a broad overview of the changes below, however, we encourage you to contact us, or check the website below, for further details.
LMO Application Fees
Effective July 31, 2013, employers applying for LMOs must pay a processing fee of $275.00 for each position requested. The total payment must reflect the number of Temporary Foreign Workers (“TFW“) positions requested on the LMO application (e.g. $275 x number of positions = total payment). For example, a company requesting a bulk LMO for 25 positions will be required to pay a processing fee of $6,875.00.
Employers who wish to increase the number of positions requested on a LMO application must submit a new LMO application for these positions, with the required documents and fees.
There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled. Reconsideration requests will also require the submitting of new application forms and fees.
New Advertising Requirements
The period that employers must advertise positions domestically before applying for LMOs is being increased from two weeks to four weeks. As well, advertisements must continue to run during Service Canada’s processing of the LMO application.
In addition to advertising on the national Job Bank website or the equivalent provincial/territorial website, employers must prove they have used at least two other recruitment methods that are consistent with the practices for the occupation. If hiring for a high-skilled position, one of the methods must be national in scope. If hiring for a low-skilled occupation, employers must demonstrate that they made efforts to target under-represented groups in the labour force.
Specifically, employers seeking to fill high-skilled positions (which includes occupations within National Occupational Classification 0, A, and B) will be required to:
- advertise on the national Job Bank or its provincial/territorial counterpart for a minimum of 4 weeks;
- continue to post the Job Bank (or equivalent) advertisement until the date the LMO is issued;
- advertise on 2 or more other mediums, at least one of which is national in scope, for a period of at least 4 weeks and until the LMO is issued;
- demonstrate that the advertising medium is appropriate for the position;
- include the company name, job duties, wage, benefits, skill requirements, and other information, in the advertisement;
- maintain copies of the advertisements and the results of their efforts for a minimum of 6 years.
Employers seeking to fill high-skilled positions (which includes occupations within National Occupational Classification C and D) will be required to:
- advertise on the national Job Bank or its provincial/territorial counterpart for a minimum of 4 weeks;
- continue to post the Job Bank (or equivalent) advertisement until the date the LMO is issued;
- advertise on 2 or more other mediums, limited to print media and general employment websites, for a period of at least 4 weeks and until the LMO is issued;
- target underrepresented groups in the employment; and
- include the company name, job duties, wage, benefits, skill requirements, and other information, in the advertisement;
- maintain copies of the advertisements and the results of their efforts for a minimum of 6 years.
The new advertising requirements do not apply to the Live-in Caregiver Program, positions related to on-farm in primary agriculture, the Seasonal Agricultural Worker Program, and the Agriculture Stream.
Language Restrictions
Effective immediately, English and French are the only languages that can be identified as a job requirement, both in LMO requests and in advertisements. An exception exists if employers can demonstrate that a language other than English for French is essential for the job. The onus will be on employers to demonstrate that a language other than French or English is an essential requirement of the position.
Housing
Employers of low-skilled foreign workers will either have to pay for housing or demonstrate that affordable housing is available where the employer is expected to work;
Today’s changes further the objectives of a Government of Canada (the “GoC“) announcement on April 29, 2013, in which the GoC also announced that.
- The Accelerated Labour Market Opinion program is suspended;
- The Variation to the Prevailing Wage Rate which allowed employers to pay foreign workers 5-15% less than prevailing wage if that is what Canadians were paid is terminated; and
- The period of Substantially the Same (“STS”) analysis is increased from two years till six.
As well, under regulatory changes that the GoC introduced on June 7, 2013, most employers of foreign nationals will soon need to comply with the following conditions during the course of the employment of the foreign nationals:
- Be actively engaged in the business in respect of which the offer of employment was made;
- Comply with federal and provincial laws which regulate employment;
- Provide the foreign nationals with employment that meets STS requirements;
- Make reasonable efforts to provide a workplace which is free of abuse, including physical abuse, sexual abuse, psychological abuse, and financial abuse;
- Not be convicted of human trafficking, unless there has been a pardon granted or a record suspension;
- Not be convicted, or receive a discharge, of any offence trafficking in persons (or related offence), an offence of a sexual nature (or an attempt) against an employee, an offence causing death or bodily harm to an employee, uttering threats to cause death or bodily harm against an employee, or an offence involving the use of violence (or an attempt) against an employee. In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.
Failure to comply with the above conditions will result in the employer being placed on the Employer Blacklist, which will result in a two-year bar on the employer hiring foreign nationals.
More information about today’s changes can be found here.
As mentioned above, today’s changes were comprehensive. There are new requirements, new forms, and new procedures. We strongly encourage you to contact us if you have any questions.