Canadian HR Reporter

CANADIAN HR REPORTER November 16, 2015 FEATURES 19 IMMIGRATION From technical to tactical Changes to TFWP force employers to change immigration, mobility management practices By Julie Lessard S ince 2011, Canada's fed- eral government has intro- duced sweeping changes to the Temporary Foreign Worker Program (TFWP). Regretta- bly, employers report negative repercussions from these re- forms, which have handicapped short-term project capabilities and altered long-term business development plans. ese perturbations are largely the result of red tape around bringing foreign talent onboard using the TFWP. In addition to the sheer complexity of the new regulations, audit readiness and compliance are a growing concern for many employers. In this new and complex land- scape, obtaining a work permit is no longer a results-oriented, me- chanical administrative exercise. Employers must adapt business models and practices to deal with new challenges in immigration and international mobility. Here are some of the key devel- opments that make it imperative to have a modernized and flexible approach to TFWP management. Prevailing wage and manda- tory advertising requirements: Historically, employers had the flexibility to pay temporary for- eign workers up to 15 per cent below the prevailing wage for a high-skilled occupation, and five per cent below the prevailing wage for a low-skilled occupation (under certain conditions). With the first round of restric- tions introduced in 2012, this flex- ibility ended in 2013. Also begin- ning in 2013, job advertisements have to include the salary offer. Finally, since 2014, employers must keep all recruitment records including copies of applicant resu- més and all relevant documents, for six years. ey must also make them available for compliance au- dits during this period. Today, employers are besieged by practical problems resulting from lacunas in the wage and ad- vertisement requirements. The most commonly cited issues are lack of clarity as to which recruit- ment efforts are considered ac- ceptable and sufficient, and the special circumstances in which an employer can be exempted from including salary information in the ad text. is lack of clear di- rectives is exacerbated by the fact government agents administering the program frequently offer con- flicting, or at best variable, inter- pretations of the rules. In addition, employers face for- midable legal and strategic chal- lenges. e "artificial nature" of the advertisement requirement under the TFWP has long been a major concern for employers. For many, advertising via provincial or national job banks or includ- ing the salary offer in the posting runs contrary to the employer's normal hiring practices, particu- larly when recruiting for senior management positions. Despite strong evidence of a disconnect between the regula- tion and hiring practices on the ground, TFWP rules make too few exceptions. On the ground, this often means additional "com- pliant" recruitment efforts must be made, even where the employ- er has already identified a suitable foreign candidate through a previ- ous good-faith campaign that was standard for the company, the in- dustry and the type of occupation. is juxtaposition adds layers of complexity to the hiring pro- cess and raises serious employ- ment law and anti-discrimination law concerns. For starters, the employer must carry on the "minimum advertise- ment" campaign on the provincial or national Job Bank web site even after it has filed a Labour Market Impact Assessment (LMIA) for a foreign candidate who meets the job requirements and has been selected for the position. Second, the employer must somehow distinguish between Canadian workers (citizens and permanent residents) versus for- eign workers in the hiring process, while not infringing on Canadian anti-discrimination law. Finally, the employer com- pounds its liability risks as it must secure an employment contract with a foreign worker while es- sentially being unable to commit to the contract, due to uncertainty as to the outcome of the work per- mit process. In this context, larger employers may quite easily find themselves embroiled in anti-dis- crimination or damages lawsuits. Transition plans: Since 2014, employers intending to hire a "high-wage" TFW must submit a "Transition Plan" with the LMIA application. High-wage positions are defined as full-time positions (minimum of 30 hours of work REQUIRED > pg. 20

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