Canadian Employment Law Today

Court sides with employer in foreign worker wage calculation dispute Confusion over what data to use in calculating prevailing wages for an occupation in a certain region BY SERGIO R. KARAS E mployers familiar with the Labour Market Impact Assessment (LMIA) process are aware that, in order for an application to be successful when requesting authorization to hire a foreign worker, one of the criteria that must be met is the requirement to pay the prevailing wage for the position being offered. How - ever, the Immigration and Refugee Protec- tion Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) do not specifically define how that prevailing wage, which varies from region to region, must be calculated. In Paturel International Co. v. Canada (Minister of Employment and Social Devel - opment, the Federal Court decided that the prevailing wage in the circumstances of that case had been set too high and the Tempo- rary Foreign Worker Program (TFWP) offi- cer committed a reviewable error by relying purely on data relating to median wages in the geographical area where the employer was located, which were not representa - tive of the wages paid by employers in the region. Paturel operated a lobster processing plant in Deer Island, N.B., under the name East Coast Seafood. Paturel employed a number of foreign workers and wished to renew their work permits. To that end, it submitted the relevant LMIA applications to obtain the necessary approvals, which were a prerequisite for the renewal of the work permits. When adjudicating an LMIA application, a TFWP officer must consider whether the employment of a foreign national would have a neutral or positive effect on the Ca - nadian labour market, including whether the wages offered are consistent with the prevailing wage rate for the occupation. e prevailing wage is determined with refer- ence to the median wage published online by the Government of Canada's National Employment Service. Wage data derives primarily from Statistics Canada's Labour Force Survey, but other sources may also be considered, including Employment Insur - ance (EI) data. In 2013 the prevailing wage in the area was based on provincial information. How- ever, in 2014 regional employment insur- ance (EI) figures were used instead, which had the effect of narrowing the geographi- cal scope. According to the EI wage reports used at that time, fish processing workers had earned between $10 and $57 per hour and the median wage was calculated at $13.79 based on 590 employees reporting. e average wage was $14.51. e officer relied on the median wage for the occupation. is represented an in - crease of more than 20 per cent from the earlier provincial figures of $11.25 per hour. Paturel was the largest employer of shellfish workers in the region and none of its em - ployees earned a wage as high as that estab- lished as the median wage for the occupa- tion. e median wage in the province was $11.33 per hour, and job postings in the re- gion offered between $11.49 and $12.43 per hour. Median wages in two regions adjacent to Paturel's location, where its competitors operated, were $11.09 and $11.20. e minister argued that it was not un - reasonable for the officer to rely on the median wage calculated with reference to EI data, given that other sources of infor- mation were unavailable or unreliable at the time. e court disagreed and held that while the officer had broad discretion to rely on data that he considered to be most representative of the prevailing wage in the region, his sole reliance on EI data amount - ed to a fettering of his discretion and it was therefore unreasonable, as supported by the Federal Court of Appeal in Stemijon Invest- ments Ltd v. Canada. e court also decided that, while the IRPR do not specify how a prevailing wage should be calculated and the minister has wide discretion, the IRPR do not stipulate that a failure to meet the prevailing wage, taken alone, would be sufficient reason to refuse an LMIA application. ere are other factors that must also be considered to an - swer the broader question of whether a for- eign national would have a neutral or posi- tive effect on the Canadian labour market. In fact, in this case the officer considered those factors and determined that the majority of them had a positive effect in that the em - ployment resulted in direct job retention for Canadian citizens or permanent residents; it was likely to fill a labour shortage; and it was necessary as demonstrated by the employer's unsuccessful efforts to recruit within Cana - da. Notwithstanding these positive findings, the officer relied only on the employer's fail- THE FEDERAL Government's changes to the Temporary Foreign Worker Program and Labour Market Impact Assessments have kept employers employing foreign workers busy. Between getting up to speed on the changes and changing their practices to meet the new legal demands, it's not uncommon for employers to be confused over some of the new requirements. It can add to the confusion when the officers doing the assessments aren't consistent on some of the requirements — such as what happened when one employer's application became problematic when different data was used to determine wage levels the employer must follow. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: IMMIGRATION The officer relied on the median wage of regional EI wage reports, which was significantly more than Statistics Canada's labour force survey figures.

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