Canadian Employment Law Today

CELT July 24 2013:celt 467.qxd 13-07-09 2:45 PM Page 7 CANADIAN EMPLOYMENT LAW TODAY New regulations send shockwaves to businesses with foreign workers Proposed amendments would grant broad powers to government officials for compliance investigations THE TEMPORARY Foreign Worker Program has been in the limelight for much OPINION of 2013. It attempts to strike a balance between the protection of the local By labour force and the needs of employers Sergio Karas to hire qualified workers not readily available in the labour market, but concern over the size of the program has the information provided by the become a politically charged topic pit- employer at the time of the Labour Marting employers against labour unions. ket Opinion (LMO) application or obtainNow the federal government has entered ing a work permit was accurate, and the fray, introducing new regulations whether the employer complies with the that give sweeping powers to officials conditions imposed on it during the administering the program. period of employment of the foreign The new regulations usher in a new workers. Officers would have the authorera of increased scrutiny ity to require the on employers, who have employer to provide docuIMMIGRATION come to be viewed negaments and report at any tively in the labour market specified time and place to and accused of preferring foreign work- answer questions in connection with the ers instead of Canadians. employment of a foreign worker. In addiOn June 8, 2013, the federal govern- tion, officers would have the authority to ment introduced proposed amendments enter and inspect any premises in which to the Immigration and Refugee Protec- a temporary foreign worker performs tion Act Regulations, implementing her duties. In the case of a private changes to the Temporary Foreign dwelling, officers would have to obtain a Worker Program. The proposed amend- warrant issued by a justice of the peace. ments tackle many aspects of the However, no such warrant would have employer's responsibilities under the to be obtained for an inspection of busiprogram, including increased protection ness premises. Moreover, while conductfor foreign workers from abuse and ing an inspection, officers may request exploitation, protecting the integrity of the employer or any of its employees to the Canadian labour market by requir- answer any relevant questions, demand ing increased efforts by employers to any documents for examination, make hire Canadians, and increased compli- photocopies, take photographs, and ance. However, the most controversial request assistance if necessary. It must aspect of the proposed amendments is be noted that such authority applies to granting Human Resources and Skills LMOs and all work permits, including Development Canada (HRSDC) and Cit- those granted under international izenship and Immigration Canada (CIC) treaties such as NAFTA or other immiofficials the authority to conduct inspec- gration programs. The authority to contions to verify compliance with the con- duct inspections and ensure compliance ditions imposed on employers of will extend for six years after the temporary foreign workers. employment of a temporary foreign The proposed inspection authority worker has concluded. Inspections could would allow officials to verify whether be triggered where an officer has reason to suspect the employer is not complying or has not complied with any conditions imposed; where the employer has not complied in the past; or where the employer is chosen for random verification of compliance with the conditions. Employers who are found to be in violation of the regulations would be denied access to the temporary foreign worker program for two years and their names and addresses would be added to an ineligibility or "black" list posted on the CIC website. Further, noncompliant employers would be barred from offering employment to foreign nationals under the Federal Skilled Trades or Federal Skilled Worker program. Compliance burden increased This heavy-handed approach increases the regulatory compliance burden significantly and would have a chilling effect on many businesses. In granting officers broad inspection powers without a search warrant, the government has created a quasi-criminal situation for employers who will be receiving impromptu visits by omnipotent bureaucrats, demanding documents and the employer's presence at an inopportune time. This "sledgehammer" approach is generally reserved, in other legislation, for situations involving danger to the public and not for routine document inspections. It is intimidating, inefficient and unnecessary, and it will do nothing to deter bad employers since the penalties associated with noncompliance are insignificant. While compliance is an important aspect of program integrity and it is true some employers have abused the Temporary Foreign Worker Program, it would have been more productive to uti- Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 8 7

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