Canadian HR Reporter, a Thomson Reuters business 2014
September
17,
2014
|
Canadian
Employment
Law
Today
employment law blog
Canadian Employment Law Today invites you to check out its employment law
blog, where editor Jeffrey R. Smith discusses recent cases and developments in
employment law. The blog includes a tool for readers to offer their comments, so
discussion is welcome and encouraged. The blog features topics such as family
status accommodation, workplace violence, wrongful dismissal, and cutting staff.
You can view the blog at www.employmentlawtoday.com.
at the host company related to the area of
expertise.
• e specialized knowledge will not be
readily available within the Canadian la-
bour market, and cannot be readily trans-
ferred to another individual.
It must be noted that, where a treaty such
as the NAFTA, Canada-Chile Free Trade
Agreement, or Canada-Peru Free Trade
Agreement provides a different definition
of Specialized Knowledge, that definition
will still apply.
Introduction of mandatory wage floor
A completely new element in the Special-
ized Knowledge category has been intro-
duced. e policy now requires that the
employee claiming to possess Specialized
Knowledge be remunerated at a level com-
mensurate with the position. In order to
introduce some objectivity to the definition
of a mandatory wage floor, the new criteria
requires that the foreign worker should re-
ceive, as a minimum, the prevailing wage for
the specific occupation and region of work
as listed in the Employment and Skills De-
velopment Canada "Working in Canada"
website tool to determine prevailing Cana-
dian Wage. e tool can be found at http://
www.jobbank.gc.ca/wage-outlook_search-
eng.do?reportOption=wage.
While the authorities have been using
wage levels as an indication of specializa-
tion for some time, this is the first attempt
to codify its use.
Non-cash payments such as hotel, trans-
portation, and other benefits cannot be tak-
en into consideration when evaluating the
prevailing wage. Only allowances compen-
sated in monetary form and paid directly to
the employee can be included.
e mandatory wage policy does not ap-
ply to Specialized Knowledge workers en-
tering Canada pursuant to the NAFTA or to
other international free trade agreements.
Nevertheless, officers must still consider
wages as an indicator of specialization in
their overall assessment.
ese important changes restrict the use
of the Intra-Company Transferee Special-
ized Knowledge category and make it more
difficult for employers to transfer technical
personnel involved in Canadian projects.
Changes to the Temporary Foreign Work-
er Program are ongoing and it is expected
further restrictions may be introduced in
the future. Given the evolving nature of
the program, employers are encouraged to
keep abreast of developments and follow
specific cases to ensure applications are
made based on current and timely analysis
of existing policies and programs.
About the Author
SERGIO R. KARAS
Principal of Karas Immigration Law Professional Corpora-
tion, is a Certified Specialist in Canadian Citizenship and
Immigration Law by the Law Society of Upper Canada. He
is Past Chair of the Ontario Bar Association Citizenship
and Immigration Section, Past Chair of the International
Bar Association Immigration and Nationality Committee,
and Editor of the Global Business Immigration Handbook,
published by Carswell. He can be reached at (416) 506-
1800 or karas@karas.ca.
CRedit:
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