Canadian Employment Law Today

Canadian HR Reporter, 2021 Saint Kitts and Nevis, Saint Lucia, Saint Vin- cent and the Grenadines, Trinidad and To- bago). Canada has bilateral agreements with participating countries that inform how the SAWP operates. The roles of participating gov- ernments include recruitment and selection, ensuring that required worker documents are available and the designation of representa- tives that will assist TFWs in Canada. Participating governments ensure that the workers selected for their job pools meet all the program requirements. The conditions include farming experience, age of 18 or old - er, citizenship in a participating country and the ability to satisfy Canadian immigration law and the laws of their home country. Em- ployers cannot use private recruiters to select workers. SAWP employers can recover some of the round-trip transportation costs for TFWs through payroll deductions, except in British Columbia. The standard employment con - tract specifies the amount that employers can deduct. If a SAWP employer re-applies for a replacement TFW, they are exempt from the requirement that their housing inspection re - port be from within eight months. Employers are required to have all TFWs register for provincial or territorial health insurance as soon as they are eligible for it. When hiring Mexican TFWs, insurance pay - ments are submitted to Great-West Life As- surance Company and they are recoverable through payroll deductions. Employers can get assistance for these deductions from par- ticipating government liaison officers. Employers are not required to re-advertise vacant positions when submitting transfer LMIA applications if they or the transferring employer have a positive LMIA for the cur - rent season and the region and occupation are the same. Any informal transfer of em- ployees contravenes the Immigration and Refugee Protection Act and risks a maximum fine of $50,000 and two years imprisonment. An emergency order made under the Quarantine Act requires a mandatory 14-day quarantine period for every person entering Canada, with limited exceptions. To calcu - late deductions for SAWP workers during the quarantine period, a week is considered to be six working days, with at least five hours per day and one day of rest. In addition to the minimum 240 hours of pay specified in SAWP contracts, employers must provide regular pay and benefits during the quaran - tine period. The quarantine period does not count toward work duration for LMIA appli- cations. Employment and Social Development Canada provides standard employment contracts with formats for either Mexican or Caribbean TFWs. This contract is non-mod - ifiable as its purpose is to specify the rights and obligations of all parties. A copy of the contract in English, French or Spanish must be supplied to the worker and signed on their first day of work. The Agricultural Stream TFWs can be hired for up to 24 months under the Agricultural Stream. With this program, employers draft the employment contracts themselves. Governments are not parties to these agreements, as opposed to contracts under the SAWP. The Agricultural Stream is favourable to employers who wish for greater control in the recruitment process and the em - ployment agreement. Wage deductions are available to employ- ers that supply on-farm or off-site housing at $30 per week from TFWs' wages unless the applicable labour standards require a lower amount. Private health insurance for TFWs must be paid for by their employers. This period begins on the workers' arrival in Can - ada and lasts until their provincial or territo- rial health insurance plans are active. When employers use recruiters or third parties for new hires, the cost cannot be deducted from TFWs' wages. After an employer completes the mandatory recruitment and advertise - ment efforts, they are ready to apply for an LMIA. A public policy was introduced by Im- migration, Refugees and Citizenship Can- ada (IRCC) that allows TFWs in Canada to change jobs before the final decision on their work permit applications. Priority processing is available when an employer provides writ- ten notice to Service Canada that their TFWs are in Canada and that they wish to benefit from IRCC's COVID-19 Temporary Public Policy. COVID-19 compliance Updates to the IRPR include steep penalties for employers that prevent workers from com - plying with orders or regulations under the Quarantine Act or the Emergencies Act. Non- compliance that is discovered through inspec- tions may lead to fines of $1,000 to $100,000 for each violation, with a cap of $1 million an- nually. Employers may also be banned from the TFWP from one to 10 years, depending on the violation. For the most serious violations, an LMIA may be revoked and permanent pro- gram ban may be issued. The emergency order made under the Quarantine Act on April 14, 2020 imple- ments measures to combat the spread of COVID-19, which include the mandatory 14-day quarantine period. The federal gov- ernment's Mandatory Isolation Support Pro- gram for Temporary Foreign Workers will pay employers $1,500 for each worker to help ease the financial burdens that result from the quarantine period. This support program will remain in place until the Quarantine Act is no longer in force. For more information, see: • "Frequently asked questions: Changes to the Temporary Foreign Worker program regard- ing COVID-19" at https://www.canada.ca/ en/employment-social-development/services/ foreign-workers/employer-compliance/covid- faq.html. April 7, 2021 | Canadian Employment Law Today Seasonal agricultural workers must be from Mexico or a participating Caribbean country. CREDIT: PHOTO BETO iSTOCK ABOUT THE AUTHOR Sergio R. Karas Sergio R. Karas is principal of Karas Immigration Law Professional Corporation in Toronto. He can be reached at (416) 506-1800 or karas@karas.ca.The writer is grateful for the contribution by Ari Goodman, BA., LL.B., Student-at-Law.

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