The Department of Employment and Social Development’s (“ESDC“) Primary Agricultural Stream allows employers to hire temporary foreign workers (“TFWs“) for a maximum period of 24 months when Canadians and permanent residents are not available. The program was created to reduce differences between the Seasonal Agricultural Workers Program (“SAWP“) and the regular Labour Market Impact Assessment (“LMIA“) stream.
Overview of LMIAs
Under the Temporary Foreign Worker Program ESDC reviews LMIA applications to assess the likely impact that foreign workers will have on the Canadian labour market. Immigration, Refugees and Citizenship Canada then generally processes work permit applicaitons submitted by foreign nationals who want to work in Canada. IRCC ensures that program requirements are met, and assesses the admissibility of applicants. The Canada Border Services Agency (“CBSA”) examines foreign nationals at the time of entry and determines whether they may enter Canada.
Agricultural LMIAs
The Primary Agricultural Stream applies to TFWs entering Canada from any country.
Information can be found on the ESDC website here: http://www.esdc.gc.ca/en/foreign_workers/hire/agricultural/overview.page
In brief, Primary Agriculture is defined as work duties that must:
- be performed within the boundaries of a farm, nursery or greenhouse
- involve at least one activity, such as:
- operation of agricultural machinery,
- boarding, care, breeding, sanitation or other handling of animals, other than fish, for the purpose of obtaining raw animal products for market
- collection, handling and assessment of those raw products, or the planting, care, harvesting or preparation of crops, trees, sod or other plants for market
- be consistent with one of these National Occupational Classification codes: 0821, 0822, 8252, 8255, 8431, 8432, and 8611
The LMIA processing fee does not apply to occupations related to primary agriculture and positions under the National Occupational Classification (NOC) codes 0821, 0822, 8252, 8255, 8431, 8432 and 8611.
Employers must provide foreign workers with adequate, suitable and affordable housing as defined by the Canadian Mortgage and Housing Corporation. The housing can be either on-farm (for example bunkhouse) or off-site (for example commercial establishment). Employers must ensure the occupancy of each accommodation location does not exceed the maximum occupancy permitted.
The following are frequently asked questions about the program as reproduced from the TFWP Wiki. This Wiki was obtained through an Access to Information Act request, and may be out of date by the time you read this. The reproduction did not occur with the affiliation of the Government of Canada. The full reproduction can be found in the PDF below.
Frequently Asked Questions
What is the definition of on-farm for the purpose of determining whether an employer may apply through the Agricultural Stream I SAWP? For example, is a honey extraction factory where TFWs will be operating the machines considered on-farm?
- On-farm would include a property, location, or a facility where the key activities that are taking place include the raising or growing of primary crops and livestock.
- The crops and livestock include those listed on the TFWP National Commodity List.
- On-farm may also include other crops and produce that are not listed on the TFWP National Commodity List such as wheat.
- Honey extraction activities would be acceptable under on-farm primary agriculture only if the honey factory is located on a farm.
Would a request for a cattle auction farm worker be considered under the definition of on-farm Primary Agriculture?
- Although the farm worker may be involved in handling cattle, cattle auction requests would not fall under primary agriculture. Cattle auction businesses function primarily as a retail business, rather than a business predicated in the care of raising of animals (ex. feedlots, cattle ranches etc.).
How do Program Officers handle applications that list a combination of AG stream commodities and non-AG stream commodities (i.e. grain and bovine)?
- If an application lists a mix of commodities, some of which fall under the National Commodity list, and others that do not fall under the list, Program Officers are to contact the employer to clarify if the employer is requesting a worker to perform work related to both sets of Ag and non-Ag commodities. If the employer indicates they are requesting the foreign worker to perform duties related to both commodities (Ag and Non Ag Commodity), the employer should be advised that the foreign worker may not perform duties that relate to both AG and non-AG commodities separate applications are required, one for the AG commodities and one for the non-AG commodities the requests must meet the requirement of the relevant program streams (including their ability to guarantee full time work based on the separate activities).
How are “canning I processing” activities understood for the purpose of assessing an LMIA job offer?
- The TFWP website states “canning/processing”; however, this must not be interpreted as two separate activities, but rather the weight is on canning.
- Canning activities in the TFWP context would be similar to ‘bagging’ or placing or packaging the unprocessed crop in a bag, a container, a jar, or a basket.
- The key point is that the commodity or product must be in its raw state.
- The processing activity, therefore, cannot exist by itself whereby a raw product or crop is transformed into a value-added product. In this context of “canning and processing”, the processing activity would be very minimal.
- For example, the job duties of a TFW may include picking strawberries, sorting strawberries, and packaging strawberries on a farm.
Can an employer apply through the Agricultural Stream for job offers where the duties include canning, processing or packaging of commodities for another farmer?
- No.
Can a farm employer apply through the Agricultural Stream I SAWP if the farm employer is also involved in ‘custom farming’ activities where the farmer is hired to provide farm work services to other farm owners?
- Yes. A farm employer can also engage in custom farm activities in addition to farming their own farm.
- The required criteria are 1. The custom farm employer must be actively engaged in farming their own farm and actively engaged in providing custom services. In other words, the farm employer cannot simply act as a labour broker or farm labour contractor. 2. The TFW job duties must fall within the specified NOC codes and the work must take place on a farm, greenhouse, or nursery, closed building (mushrooms and vermiculture-worms).
Is an employer required to submit more than one application if their farm spans more than one location. For example, if an employer has one Employer ID for their farm, but their farm spans multiple locations over 200 kms?
- Employers may submit one application for farms that span multiple locations, depending on various factors (listed below). Determination of whether a single application may be accepted, or if multiple applications are required, is made by Program Officers during their assessment.
- Based on the information provided, an officer should consider the nature of the farm, and the way the farm is set up. Where each location operates independently with its own equipment, buildings etc. it is easier identify a work location. Example: A farmer owns multiple chicken farms; each location has its own buildings, coops, equipment, management.. In this case it is possible to discern that each work location is independent. Separate applications would be appropriate, Example: A company owns multiple greenhouses over a number of areas in southern BC. Each greenhouse has its own outbuildings, equipment and grows a different produce (cucumber greenhouse in Nelson, red pepper greenhouse in Cranbrook, Tomato greenhouse in Rock Creek) In this case it is possible to discern that each work location is independent and separate applications would be appropriate, However, there may be cases for the workers to move around.
- Example: grain farm may start with his own farm (including buildings, equipment). Later, the farmer may buy up separate
fields and parcels of land within the same general area. - In this case each of the following different parcels of land may not have its own outbuildings and equipment; the farmer mayuse the same equipment, moving it from parcel to parcel (ex. combine driven from location to location to harvest).
- In this case, it would be unreasonable to identify each parcel of land as a separate work location and one application for the multiple locations would be appropriate. The officer would be able to identify the home farm as the hub.
- To ensure the TFW is not subject to abuse or taken advantage of, ex. where the distance between the farm locations appears excessive or impractical, ex. 200 km away, ESDC would have concerns about the transportation, payment during travel, and accommodation. employer must pay the confirmed wage for travel time,transportation should be free and at no cost to the foreign worker, If they will be living at another location, that accommodation must meet Temporary Foreign Worker Program inspection
requirements.
Can an employer include driving a motor vehicle on a road as a part of the job offer for the TFW(s) under the Agricultural Stream?
- The only driving that may occur off the farm is a situation where the TFW is operating agriculture machinery (e.g.: tractors, round baler machine, harvesting machine, etc. ) to get from one parcel of the employer’s farm to another parcel of the farmer’s farm to perform the job duties.
- An employer cannot include driving a motor vehicle on a road as a part of the job offer under the Agricultural Stream if this was not clearly stated on the job duties, and supported by the recruitment efforts at the time of the LMIA application.
- A TFW farm worker cannot drive a motor vehicle on the road or off the farm to transport goods. Any driving should always be on the farm premise.
- Narrow and limited exceptions may include:
- Driving a van or other vehicle may be allowed with job offers where it is a necessity to commute from farm-to-farm or land parcel to land parcel in order to complete the primary job duties. For example, apiary job duties that involve moving bee boxes or farm labour positions that include transporting grain from a field to an on-farm storage facility would be permissible.
- The full-time driving component of the primary agriculture job duties cannot replace another occupation such as a ‘truck driver’. For example, a farm labourer could not drive a truck to deliver grain to market.
How should wages be assessed for high-skilled agricultural positions, when no specific high-skilled wage is listed on the external website for that commodity?
- The Agricultural Stream Policy and Directives are currently in the process of being updated; National Headquarters (“NHQ“) has advised that until the Agricultural Stream Policy and Directives have been finalized, officers should assess wages for high-skilled, non-livestock commodity positions using the standard wage assessment for the relevant National Occupational Classification (“NOC“).
Can an employer select the Agricultural Stream or the ‘regular’ TFWP stream if the employer’s commodity is listed on the National Commodity List?
- If the employer’s commodity is on the National Commodity List, then the employer must apply under the Agricultural Stream (or SAWP) and meet the program stream requirements.
Is hops on the National Commodity List, and if yes what commodity is it listed under?
- Yes, hops is on the National Commodity list, and is categorized under the ‘flowers’ commodity.
How can I tell if a horse-related application falls under AG stream?
- There are three determinants for assessing positions under the SAWP/Agriculture streams:
1. the activities must meet the definition of on-farm primary agriculture,
2. the agricultural product is for market and is on the National Commodities List, and
3. the occupation falls under one of the following NOC codes: 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611.
It should be noted that the occupation must be performed within the boundaries of a farm, nursery or greenhouse and involve the boarding, care, breeding, sanitation or other handling of animals for the purpose of obtaining animal products for market, or activities relating to the collection, handling and assessment of those products. Products for market refers to a physical product. The sale of a horse or any horse by-products would constitute a product for market. The sale of services like horse-back riding or show-jumping would not.
Is peat moss a commodity on the National Commodity List?
- No, peat moss is not on the National Commodity list. Employers applying for foreign workers with peat moss as the commodity must use the High/Low Wage application.
What is the appropriate NOC for chicken sexers? NOC 8431 (General Farm Worker) or 8253 (Specialized Livestock Worker)?
- The poultry industry breeds and processes chickens differently based on their sex. Chicken sexing is the method of distinguishing the gender of a chicken or hatching/chick by exposing the genitalia; chicken sexing is accomplished through two known techniques: venting or feathering. While venting may take more practice than feathering, NHQ has confirmed that neither technique is sufficiently complex to justify determining the “chicken sexer” position as a skilled NOC (NOC 0, A or B) position. Given that there are no skill or experience requirements the position should be identified as NOC 8431.
Does an employer need to conduct a housing inspection even if a TFW chooses accommodation that is not provided by the employer?
- Housing inspection is a part of an employer’s requirement in order to participate in the TFWP Agricultural Stream. This requirement is unrelated to a TFW’s preference. An employer must always have accommodation to offer a TFW and the accommodation must have passed the current year’s inspection.
Are employers required to obtain housing inspections when a TFW will be housed in a commercial establishment such as a hotel or motel room, or apartment?
- Yes. In the Agricultural Stream, the employer must always provide proof of a housing inspection. There is no variation in the housing requirements for apartments or hotels; the same requirements must be met.
Transportation Related Questions
What are the ERs obligations for providing transportation to/from the housing location and worksite?
- The website is clear that: Employers must provide to the TFWs, where required, no-cost transporlation to and from the on-siteloffsite housing location to the work location.
Does the employer have an obligation to pay the TFWs daily travel costs if, by their own choice, the TFWs refuse to commute in the employer provided van? (Example: pay a mileage fee)
The employer’s obligation to provide transportation, at no cost to the TFW, ceases when the TFW chooses alternate transportation. The employer has the right to make transportation arrangements in the manner that is most economical and suitable to the situation. By refusing the transportation arrangements the TFW assumes full cost of the alternate transportation. The employer is not required to pay mileage costs to the TFW.
What if the TFW needs to commute/use their own vehicle to transport themselves to and from work due to an unusual/unforeseen circumstance?
The employer and worker are not prevented from entering into an arrangement to cover all or part of the FW’s mileage cost if they so choose. Such arrangements would be separate from the Agriculture Stream employment agreement/contract. TFWP strongly recommends that the employer and TFW make the arrangements in writing and that the document, signed by both parties, be kept in case of a future inspection. It is also the employer’s responsibility to ensure that any such voluntary payments for mileage are made in accordance with applicable provincial/territorial legislation.
Note: An employer who chooses to reimburse a TFW for mileage in a case where the TFW declines the standard transportation arrangement should ensure that this reimbursement was included in the original advertisements for the job. Mileage reimbursements are likely part of the overall compensation related to the job. An employer who reimburses a TFW for mileage without having included that in advertisements recruiting Canadians and PRs for the job may be in violation of the advertising/recruitment requirements.