Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER February 24, 2014 February 24, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 ATTENDING HAS NEVER THE 2014 HRIA CONFERENCE APRIL 9 & 10, 2014 | BMO CENTRE, CALGARY, AB EXPERIENCE EVERYTHING THE 2014 HRIA CONFERENCE HAS TO OFFER. DOWNLOAD THE APP TODAY! E x p l o r e t h e P o s s i b i l i t i e s NEW THIS YEAR! Enhance your conference experience by downloading the conference app. With this app you will be able to connect with other attendees, add your personal schedule, access session information, browse exhibitors, and view maps of the tradeshow floor and the BMO Centre. To download the app, scan the QR code or use the following link: http://eventmobi.com/hria1404s/ NEED HELP SAVING THE APP TO YOUR MOBILE DEVICE? Visit www.HRIAConference.com/Saving_the_App BEEN EASIER Tightening grip on the use of foreign workers Tightening grip on the use of foreign workers Changes to TFWP place more onus on employers and give authorities more powers Changes to TFWP place more onus on employers and give authorities more powers Substantial regulatory changes to Cana- da's Temporary Foreign Worker Program (TFWP), implemented on Dec. 31, 2013, have resulted in greater compliance obliga- tions for Canadian employers. e changes also provide immigration offi cials with ex- tensive authority to investigate and penalize employers that don't comply. Ministerial instructions were also released granting Citizenship and Immigration Canada (CIC) and Employment and Social Devel- opment Canada (ESDC or Service Canada) new powers to revoke, suspend and refuse to process work permit or Labour Market Opinion (LMO) applications based on public policy concerns. Key regulatory changes Some of the key regulatory chang- es are listed below. Introduction of employer condi- tions: e regulations require em- ployers of foreign workers to sat- isfy several key conditions, which remain binding on the employer for six years. An employer can be required to provide proof that it: •is actively engaged in the busi- ness for which the off er of em- ployment was made •is in compliance with federal and provincial/territorial laws that regulate employment and recruitment •has provided each foreign work- er with employment in the same occupation and with wages and working conditions that are sub- stantially the same as those in the off er of employment •has satisfi ed any commitment made in the LMO application regarding job creation and reten- tion, training, development or transfer of skills and knowledge for the benefi t of Canadians or permanent residents •has made reasonable eff orts to provide a workplace that is free of physical, sexual, psychological or fi nancial abuse. Inspections: CIC and Service Canada can now conduct in- spections of employers of foreign workers for the purpose of verify- ing compliance for any of the fol- lowing reasons: •they have reason to suspect the employer is not in compliance with any conditions •the employer has not complied in the past •the employer is selected for ran- dom verifi cation of compliance. Employers must demonstrate compliance in regards to any for- eign nationals who were issued work permits within the six years prior to the inspection, including any period of implied status. During an inspection, the au- thorities can require the employer to: •provide any relevant documents •report at a specifi c time and place to answer questions and provide relevant documents •attend any inspection. It is expected that employers will be given 48 hours' notice of an on-site inspection — unless such notice would compromise the inspection. e inspection is not limited to the employer's site but extends to any location where the temporary foreign worker per- forms work, including client sites. During an on-site inspection, an offi cer may: •question the employer or any individual employed by the em- ployer •examine documents or anything found within the premises •use copying equipment on the premises, require the employer to make copies of documents or remove the documents to make copies •take photographs and make vid- eo or audio recordings •require the employer to provide use of a computer to access rel- evant documentation •request to be accompanied by any person to assist in the in- spection. It is estimated an inspection will require one-and-a-half hours of preparation time and a further three hours of management time to attend the inspection. Although not specifi ed in the regulations, Service Canada has suggested that offi cers will seek consent before interviewing tem- porary foreign workers or Cana- dian employees. In determining the elements to review while con- ducting an inspection, immigra- tion authorities will consider risk, employer history and whether a specific complaint has been received. Employer Compliance Re- views (ECR): Every application for an LMO or work permit fi led by an employer can trigger an ECR. Filing an LMO application au- thorizes Service Canada to per- form a compliance review of all temporary foreign workers em- ployed by the employer within the previous six years, and Service Canada will review the wages, oc- cupations and working conditions of foreign workers employed un- der previous LMOs. Employers applying for and re- ceiving LMOs on or after Dec. 31, 2013, will be required to provide the "same" occupation to foreign workers (previously "substantially the same" occupation) and wages and working conditions that are substantially the same as — but not less favourable than — those set out in the off er of employment (and confi rmed in the LMO letter and annexes). CIC can perform a similar ECR and review compliance with the terms and conditions of any work permits issued to an employer during the six years immediately preceding the fi ling of an applica- tion for a work permit. The employer must demon- strate compliance with all the terms and conditions set out in the foreign workers' offers of employment. Employers will be notifi ed that they have been selected for a com- pliance review and told whether it is an ECR or an inspection. ey will be informed in writing of the: •steps they need to take •conditions for which they need to demonstrate compliance •types of documents they are re- quired to produce •dates by which they are required to produce them. Howard Greenberg Legal View LMOs > pg. 17

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