ARCHIVED – Backgrounder — Protecting Temporary Foreign Workers

As of April 1, 2011, each job offer will be assessed using new criteria.

The regulatory improvements give HRSDC, CIC and CBSA officers the authority to assess:

• The genuineness of the job offer, including a review of four factors for all workers and an additional three factors for live-in caregivers.
• The consistency of the job offer with the terms of any federal-provincial/territorial agreement and whether the foreign worker, their spouse or common-law partner or dependents are eligible to participate in particular pilot projects.
• If applicable, the history of the employer in hiring temporary foreign workers over the previous two years to determine whether the employer has provided wages, working conditions and occupation substantially the same as the terms set out in their job offers.
• The length of time that the foreign national being hired has worked in Canada. For more information, please see the backgrounder on the four-year limit for foreign nationals working in Canada, including the list of workers exempt from this requirement.

For jobs requiring a Labour Market Opinion (LMO), the assessment will be completed by HRSDC/Service Canada as part of the LMO process. For LMO-exempt jobs, the assessment will be completed by CIC or CBSA officers when a work permit is requested.

These regulations build on existing federal and provincial/territorial laws.

 TFWs have access to the same recourse mechanisms as Canadian workers when it comes to labour and employment standards. Provinces and territories have primary responsibility for enforcement of labour standards and have offices that can assist all workers regarding fair pay, hours of work, rest periods and general working conditions. Workers should contact the appropriate authority in the province or territory they work in if they have concerns about their working conditions.

Employers can be charged under the Immigration and Refugee Protection Act for employing a “foreign national in a capacity in which the foreign national is not authorized…to be employed.”

‘Genuineness’ of the job offer

Foreign nationals looking to work in Canada can be assured that they will be better protected from exploitation through a more rigorous assessment of the genuineness of the job offer.

• Four factors will be considered as part of the assessment for genuineness:
• The employer is actively engaged in the business.
• The job offer is consistent with the needs of the employer.
• The employer is reasonably able to fulfill the terms of the job offer.
• The employer has complied with federal/provincial/territorial laws regulating employment in the province/territory where the worker will be employed.

Three additional factors will be verified as part of the assessment for genuineness for employers seeking to hire through the Live-in Caregiver Program:

• The caregiver will be residing in a private household in Canada and providing child care, senior home support care or care of a disabled person in that household;
• The employer will provide adequate accommodations in the household that are adequately furnished and private; and
• The employer has sufficient financial resources to pay the caregiver the wages offered.

Consistency of the job offer with terms of a federal-provincial/territorial agreement

Some provincial and territorial governments have entered into bilateral agreements with CIC respecting foreign workers, and some of those agreements include pilot projects aimed at improving the program’s effectiveness in that jurisdiction.  Employers should consult the terms of these agreements to see if there are provisions that may apply to workers that they intend to hire.

Providing working conditions ‘substantially the same’ as promised in job offer

Officers will have the authority to undertake an assessment of whether an employer has, in the last two years, provided wages, working conditions and occupation as promised in a past job offer.

Generally speaking, when no adverse information is available on an employer, it is unlikely they will be required to submit additional documentation.

If adverse information is available to the officer about a specific employer and the information appears to support a negative assessment, the employer will have the opportunity to provide reasonable justification.

Examples of reasonable justification would include:

• A change in a federal, provincial or territorial law.
• A change in the collective bargaining agreement at the worksite.
• Dramatic changes in economic conditions that affect the workplace.

An employer may also be granted the opportunity to rectify the situation by providing appropriate compensation to the former employee.

Employers who have failed to meet commitments as promised in past job offers, and who have failed to provide reasonable justification or to rectify the situation by providing appropriate compensation to the former employee may face:

• The refusal of work permit applications for any foreign national offered employment by that employer;
• Becoming ineligible to hire TFWs for 2 years; and
• Having their name displayed on CIC’s public website.

These consequences should deter employers from failing to provide wages, working conditions and occupation that are substantially the same as their initial job offer.

Workers are advised to protect themselves by consulting CIC’s website prior to entering into or extending an employment agreement to determine if the employer they are planning to work for has been deemed ineligible to use the TFWP.

Workers cannot enter into an employment agreement, or an extension of an existing agreement, with an employer who has been deemed ineligible to use the TFWP. Doing so will affect the worker’s temporary resident status in Canada.

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