Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Foreign worker program changes impose burden on employers Changes intended to protect Canadian jobs but will mean more red tape for employers using temporary foreign workers By SErgio r. KaraS The FederAl government has an- nounced major changes to the much ma- ligned Temporary Foreign Worker Program (TWP) after months of negative media reports concerning high profile scandals, public pressure, and a looming federal elec- tion campaign. e changes are profound and will make it more difficult for employers to hire foreign workers in many categories. e most significant policy changes can be summarized as follows: • Labour Market Opinions (LMOs) are now replaced by Labour Market Impact As- sessments (LMIAs), which will be based on enhanced labour market data rather than on occupation descriptions listed in the National Occupation Classification (NOC). Filing fees are increased from $275 to $1,000 per applicant. • Temporary foreign workers (TFWs) will now be separated into two main catego- ries according to wage level. "High-wage temporary foreign workers" will be those in positions at or above the provincial or territorial median wage, and "low-wage temporary foreign workers" will be those earning below the median wage. Hourly median wages vary from a low of $17.26 in Prince Edward Island to a high of $32.53 in the Northwest Territories. e median wages will be revised periodically. For low-wage TFWs, work permit dura- tion will be limited to a one-year maximum rather than the previous two years. TFWs who are currently in Canada with longer work permits will not be affected. For high-wage TFWs, employers will be required to present transition plans in addi- tion to recruitment efforts to demonstrate how they intend to decrease their depen- dence on TFWs, with limited exceptions. • e Seasonal Agricultural Worker Pro- gram is renamed the Primary Agricultural Stream, but its elements are largely un- changed. Further, no changes have been made to the Live-In Caregiver program for the time being, but reports indicate the government is planning an overhaul in the near future. new recruitment requirements e new LMIA will require employers to provide much more comprehensive infor- mation regarding their recruitment efforts and to demonstrate that Canadians cannot be found for a specific position — in addi- tion to current advertising requirements. Employers will also need to prove Canadi- ans have not been laid off or had their hours reduced at a worksite that employs TFWs. Authorities will rely on better sources of labour market information to determine if there are Canadians who could fill those po- sitions. e new labour market information will include a proposed new job matching service to allow Canadians to apply directly for positions through the Job Bank, a quar- terly job vacancy survey by Statistics Cana- da, an annual national wage survey also to be conducted by Statistics Canada, and bet- ter use of government data. It remains to be seen how the government will roll out these new sources of information and how they will reflect labour market conditions. Cap on low-wage workers All employers with more than 10 employees will be subject to a cap of low-wage TFWs — 10 per cent of the employer's workforce per location. ese changes are designed to reduce the number of workers in low-skilled occupa- tions by limiting the number of employees in each employer location. Employers with ten or more employees applying for a new LMIA are subject to a cap of 10 per cent of their workforce that can consist of low-wage TFWs. is cap will be calculated based on the total number of hours worked at the spe- cific worksite by all employees. Employers who are currently above the 10 per cent cap will be provided with a transi- tion period to reduce the number of low- wage foreign workers. Initially, they will be limited at 30 per cent or frozen at their current level, whichever is lower. ose em- ployers will have to reduce that percentage to 20 per cent as of July 1, 2015, and eventu- ally to 10 per cent. According to recent me- dia reports, the government has indicated a desire to eliminate the low-wage TFW pro- gram altogether, but no such action has yet been taken. Unemployment rate and foreign workers LMIA applications will be refused for em- ployers in the accommodation, food servic- es, and retail trade sectors for positions that require little or no education or training, in geographical areas where unemployment rates exceeds six per cent. is applies to jobs such as food counter attendants, kitch- en helpers, light duty cleaners, cashiers, construction labourers, landscaping and grounds maintenance labourers, janitors, specialized cleaners, security guards, and attendants in accommodation and travel. e government's rationale for such a move is that Canadians hit with high unemploy- ment rates should be afforded an opportu- nity to apply for those positions. However, this does not take into account the fact that many unemployed Canadians refuse to ac- cept low-wage occupations. high-wage workers transition plans Employers who want to hire TFWs in high- wage occupations will be required, with limited exceptions, to submit transition plans with their LMIA applications to en- sure they are taking steps to reduce their dependence on foreign workers over time. ese transition plans are in addition to the existing recruitment and advertising requirements employers must meet during the course of an application. e transition plan is designed to provide proof that em- ployers are training Canadians for the posi- tion or assisting the TFW become a perma- nent resident. Employers will also be required to un- dertake further recruitment activities, in- cluding reaching out to organizations with groups traditionally underrepresented or affected by high unemployment such as ab- original people, youth and Canadians with disabilities. Employers will need to report on the success of their transition plans if they are selected for inspection. highest-demand, highest-paid and shortest-duration occupations Occupations in the skilled trades, or top 10 per cent of earners, or short-duration (un- der 120 days) will now be provided with a 10-business-day service standard. It must be noted that employers will still be re- quired to advertise and undertake the same recruitment efforts as with other LMIA ap- plications. Employers are exempt from the requirement of the transition plan when hiring in these categories. Typically, the po- sitions benefitting from the faster process- reVerseD on page 7 »

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