Canadian Employment Law Today

Canadian HR Reporter, 2021 4 Changes to Temporary Foreign Worker Program feature two pathways for employers and temporary foreign workers in the agriculture sector A fork in the road for agricultural temporary foreign workers CANADA'S AGRICULTURE sector requires access to the global workforce to meet con- sumer demands. This leads employers to rely on temporary foreign workers (TFWs) to overcome shortages in general labour. TFWs that work in agriculture are a part of critical infrastructure; they ensure food security and serve an essential function for Canadians' well-being. To remedy these labour shortages, em - ployers can obtain work permits for TFWs through the Temporary Foreign Worker Pro- gram (TFWP). Work permit applications for TFWs in the agricultural sector are processed on a priority basis and they are exempt from travel restrictions because of their designa- tion as essential workers. The TFWP has two streams: the Seasonal Agricultural Work- er Program (SAWP) and the Agricultural Stream. With multiple pathways available, agricultural-sector employers should pursue a stream that suits their needs. Preliminary requirements There are two criteria for employers that are unique to both the SAWP and the Agricultural Stream: Production must be in a sector on the national commodity list and the job must be in on-farm primary agriculture. The national commodity list includes the following sectors: • Apiary products • Fruits, vegetables (including canning/ processing if grown on the farm) • Mushrooms • Flowers • Nursery-grown trees including Christmas trees, greenhouses/nurseries • Pedigreed canola seed • Seed corn • Grains • Oil seeds • Maple syrup • Sod • Tobacco • Bovine • Dairy • Duck • Horse • Mink • Poultry • Sheep • Swine Primary agriculture is defined under the Immigration and Refugee Protection Regu - lations (IRPR). It refers to work where the duties are performed within a farm, nursery or greenhouse. It entails machinery opera- tion, working with raw animal products or working with plants. The products must be for market. The National Occupation Clas- sification codes for jobs in on-farm primary agriculture are: • Managers in agriculture (0821) • Managers in horticulture (0822) • Agricultural services contractors, farm supervisors and specialized livestock workers (8252) • Contractors and supervisors, landscap - ing, grounds maintenance and horticul- ture services (8255) • General farm workers (8431) • Nursery and greenhouse workers (8432) • Harvesting labourers (8611) When hiring workers under the TFWP, a positive Labour Market Impact Assessment (LMIA) is required. The LMIA includes job offer details and demonstrates that there are no Canadian workers or permanent residents available for the job and that there is a need to hire foreign workers. A positive LMIA en - ables TFWs to apply for work permits under the SAWP and the Agricultural Stream. Employers must provide the same wages and benefits to TFWs that they provide to other employees in the same occupation. Unionized workers are to be paid at the es - tablished rate under the collective bargain- ing agreement. Employers must agree to review and adjust wages to ensure that their rates meet or exceed those in the wage tables or the applicable minimum wage rate. In the past, an LMIA was valid for six months. As a temporary measure due to the rise in COVID-19 infection rates, an LMIA approved for 2021 is valid until Dec. 15, 2021. New measures have been taken to process LMIA applications in a more flexible manner. Employers are no longer required to submit minor administrative changes un - less they impact the LMIA's terms and condi- tions. There are some costs that are required to be paid by employers, such as TFWs' round- trip transportation and transportation be- tween housing and the work location. Em- ployers are obligated to provide adequate, suitable and affordable housing for TFWs, which requires an official inspection within eight months before the LMIA application submission. Due to COVID-19, housing in - spection reports have greater flexibility when an employer can prove that the appropriate authority cannot conduct an inspection. If an employer lodges TFWs in commercial ac- commodations rated three stars or higher, a report is not required. Employers may also have to ensure that their intended hires are covered by a provin- cial or territorial workplace safety insurance provider. When TFWs work with pesticides or hazardous chemicals, employers must notify workers and provide, at their expense, free protective equipment, training and su - pervision. There is a mandatory recruitment period where employers must attempt to hire Ca- nadian citizens and permanent residents before offering jobs to TFWs, with specific requirements on those attempts. Job adver- tisement requirements to the Canadian job market were updated because of the eco- nomic impact of COVID-19 — jobs posted before March 15, 2020 may need to be re- advertised for an additional two consecutive weeks. Service Canada will contact employ- ers to re-advertise. The Seasonal Agriculture Worker Program (SAWP) For eligibility under the SAWP, there is a re- quirement that TFWs must be citizens of Mexico or a participating Caribbean country (Anguilla, Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, CASE IN POINT: IMMIGRATION The impact of COVID-19 has altered the hiring process for temporary foreign workers in Canada's agricultural sector. New opportunities have been made available through two streams: the Seasonal Agricultural Worker Program and the Agricultural Stream. These opportunities come with increased protections for workers but also strict obligations for employers who must have a thorough understanding of the updated legislation to navigate the changes affecting their businesses. BACKGROUND BY SERGIO KARAS

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