In both the Temporary Foreign Worker Program (the “TFWP”) and the International Mobility Program (the “IMP”) employers who have been non-compliant can reduce their potential penalties by voluntarily disclosing the non-compliance.
Voluntary disclosures are only available to mitigate against the consequences for non-compliance that occurred on or after December 1, 2015.
Considerations
A voluntary disclosure must be unsolicited. It must be complete and voluntary.
Officers will consider several factors in determining whether the voluntary disclosure is acceptable.
First, a voluntary disclosure will only be acceptable for violations that are not severe. Whether a violation is severe will depend on the number of foreign workers negatively affected by the violation, whether any abuse of a foreign worker occurred, the duration of non-compliance, and any economic gain the employer may have obtained as a result of the violation.
Second, acceptable voluntary disclosures must be made in a timely manner.
Third, the number of times an employer is non-compliant will impact whether a disclosure is voluntary and complete. Employers will not be allowed to repeatedly use voluntary disclosures to their advantage while making little or no effort to comply with TFWP or IMP requirements.
Fourth, the complexity of meeting a condition can impact whether a disclosure is accepted. For example, where efforts to prevent abuse are complicated, or National Occupational Classifications are vague, an employer’s non-compliance may be forgiven.
Points Reductions
If it is found to be acceptable by an officer, four points will be deducted from the total points calculated for the violation under the assessment. Where the point total is four or less the result of a voluntary disclosure is zero points.
Where an employer has committed more than one violation, the number of points in respect of each violation is calculated separately. As such, an acceptable voluntary disclosure, and the associated points’ reduction, is likewise applied to each violation separately.
Voluntary disclosure is done through completing the IMM5964 – Voluntary Disclosure Form.
