Friday, September 23, 2016

Parliamentary Committee Recommends 21 Changes to Temporary Foreign Worker Program

English: The main doorway into the chamber of ...
English: The main doorway into the chamber of the House of Commons of Canada (Photo credit: Wikipedia)

Government Ministers set to respond to Committee report, with major changes to current regulations expected

A House of Commons committee tasked with reviewing Canada’s Temporary Foreign Worker Program (TFWP) has made a wide range of recommendations for changes to the program, including easier pathways to permanent residence for foreign workers and simpler ways for businesses to respond to labour market needs.
The committee also calls for the elimination of a rule that ties a foreign worker’s work permit to a specific employer, based on testimony that this creates a power relationship that is open to abuse. Furthermore, under these recommendations, employers with a track record of using the program appropriately would then be placed into a ‘Trusted Employer Program’ whereby their applications for Labour Market Impact Assessments (LMIAs) would be fast-tracked.
The report also supports ending the rule that forces certain workers to leave Canada after four years.
Within hours of the report having been published, the Minister of Immigration, John McCallum, and the Minister of Employment, Workforce Development and Labour, MaryAnn Mihychuk, announced that they would respond to the recommendations within the legislated timeframe of 120 days. Given that the Committee was dominated by Liberal members and that the Liberal Party holds a majority within the House of Commons, the long-awaited report is expected to guide upcoming changes to the TFWP that have been promised by the government since it took office last November. The most recent major changes to the TFWP were introduced by the previous Conservative government in June, 2014.

Recommended changes to the TFWP

Glossary of terms:
  • Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (‘The Committee’) – The House of Commons Committee that submitted the report and the list of recommendations.
  • ESCD – Employment and Social Development Canada, the government department responsible for social programs and the labour market at the federal level.
  • LMIA – Labour Marker Impact Assessment, a document that an employer in Canada may need before hiring a foreign worker.
  • IRCC – Immigration, Refugees and Citizenship Canada, the government department overseeing immigration to Canada.
  • TFWP – Temporary Foreign Worker Program.
Labour Market Impact Assessment Application fee
The Committee heard that the $1,000 LMIA application fee made it difficult for certain businesses, in particular small businesses, to remain competitive. For families needing to hire caregivers, the fee has been financially burdensome. Accordingly, the Committee recommends as follows:
  1. That ESDC and IRCC take immediate steps to extend work permits for caregivers in the low-wage stream from one to two years.
Processing and timelines regarding LMIA applications
The Committee agreed that there is a need to streamline and standardize the LMIA application process. In particular, the Committee heard that the length of time it takes to process LMIA applications affects companies’ productivity, and has an impact on the temporary foreign workers themselves whose work permit renewals are dependent upon a positive LMIA. The Committee recommends as follows:
  1. That ESDC review the LMIA application process, with a view to increasing speed and efficiency; and that such a review take into consideration the National Occupational Classification (NOC) Codes as well as the adequate allocation of resources towards training and meeting service standards.
  2. That ESDC implement a Trusted Employer Program with the objective of reducing LMIA processing timelines for employers who have demonstrated trustworthiness in their use of the TFWP.
  3. That ESDC review the policy with respect to foreign faculty members currently employed or seeking employment with a recognized Canadian academic institution, whose employment is currently dependent upon a LMIA, with a view to providing exemptions or accommodations for this class of foreign nationals.
  4. That the TFWP permit minor modifications to contracts between employers and employees with regards to the nature of the work and increases in wages if both parties consent, the changes do not disadvantage the worker, and ESDC is adequately informed of any changes in short order. The changes must not violate the spirit of the job description.
TFWP streams
Currently, the TFWP comprises various streams, each with its own specific requirements. Witnesses appearing before the Committee suggested that the current way in which the TFWP is structured needs to be reformed as current stream-specific requirements do not fully address the individual needs of various industries. The Committee acknowledges that the current program streams may not fully reflect Canadian labour market needs and recommends as follows:
  1. That ESDC appropriately restructure the TFWP such that it achieves better overall economic and social benefit for Canadians and program participants. That ESDC re-establish the TFWP into more specific program areas and streams that adequately reflect the realities of labour market needs in Canada.
  2. That IRCC study the impacts of expanding the definition of primary agriculture as found in the Immigration and Refugee Protection Regulations.
  3. That ESDC and IRCC seek to review and improve mechanisms in which migrant workers are brought into Canada to fill both temporary and permanent positions, preventing the use of the TFWP to satisfy permanent labour needs.
Transition Plans
Currently, employers seeking to hire high-wage workers must submit transition plans along with their LMIA application to ensure that they are taking steps to reduce their reliance on foreign workers over time. High-wage workers are those earning above the median hourly wage for a given occupation in specified region. Transition plans are designed to ensure that employers seeking foreign workers are fulfilling the purpose of the program.
The majority of witnesses who appeared before the Committee to talk about the high-wage stream shared the view that the requirement for a Transition Plan may not be realistic when there is a proven labour shortage of high-skilled workers that cannot be addressed domestically in the short-term. Other stakeholders support abolishing Transition Plans altogether. The Committee recommends as follows:
  1. That ESDC provide an exemption on the Transition Plan requirement for five percent of the business’ workforce that consists of high-wage temporary foreign workers.
  2. That ESDC work to implement measures to ensure appropriate training and education resources are allocated in those fields most likely to present labour and skills shortages. Also, that appropriate apprenticeship targets be included as a requirement of the Transition Plan for employers to ensure they meet their recruitment and training obligations for Canadians.
  3. That ESDC, businesses, and stakeholders continue to monitor labour market needs as to ensure skills, training, and educational output match Canada’s current and future employment needs such that our reliance on foreign labour diminishes, and invest in better collection and retention of labour market information in Canada to adequately assess labour market needs.
Cap on the proportion of the workforce that consists of low-wage temporary foreign workers
Currently, employers with 10 or more employees applying for a new LMIA are subject to a cap of 10 percent on the proportion of their workforce that can consist of low-wage temporary foreign workers. The introduction of this cap has negatively affected some businesses’ production levels, and some industry-specific exemptions may be contemplated. The Committee also recommends as follows:
  1. That ESDC ensure the cap on the percentage of temporary foreign workers a business can employ at a given time, be set at a minimum of 20 percent, and further review sector and geographic considerations.
Certain low-wage positions in the Accommodation, Food Services and Retail Trade sectors
Currently, LMIAs with respect to certain low-wage positions in regions with a six percent or higher unemployment rate will not be processed. However, witnesses told the Committee that available labour market data is very high-level and not suited to determining labour market conditions in smaller communities situated within the broader geographic region. The Committee recommends as follows:
  1. That ESDC take immediate steps to improve the collection of labour market data and review the geographic zones used for determining unemployment rates, with a view to aligning the labour market conditions of more localized economies with the requirements of the TFWP.
Employer-specific work permits
Temporary foreign workers employed in the low-wage stream and the Seasonal Agricultural Worker Program (SAWP, part of the TFWP) have consistently stated that employer-specific work permits tying workers to one employer lead to a power imbalance that may lead to abuse. The Committee recommends as follows:
  1. That ESDC take immediate steps to eliminate the requirement for an employer-specific work permit; provided that it implement appropriate measures to ensure temporary foreign labour is only utilized within the existing provisions of the LMIA process, including sector and geographic restrictions.
  2. That IRCC provide multiple entry work visas for temporary foreign workers employed in seasonal work, with the objective of allowing these individuals greater mobility during off-seasons; that when a work visa is extended, the multiple 32 entry visa must also be extended so workers can continue to enter and leave Canada.
Pathways to permanent residence for all migrant workers
The Committee acknowledges that all migrant workers, especially those that are filling long-term labour needs and are fully integrated into Canadian society, should enjoy greater pathways to permanent residence. Therefore, the Committee recommends as follows:
  1. That IRCC review the current pathways to permanent residence for all temporary foreign workers, with a view to facilitating access to permanent residence for migrant workers who have integrated into Canadian society and are filling a permanent labour market need. That IRCC allocate adequate resources to allow for the timely processing of permanent residence applications for those migrant workers that are hired under the TFWP.
  2. That IRCC work with provinces, territories and other government departments to increase information sharing that will create more harmonization with immigration and nominee programs to function in collaboration with one another. That these efforts aim to reduce duplication of work benefiting both the government and applicants.
  3. That IRCC amend the Immigration and Refugee Protection Regulations to remove the relevant provisions with respect to the “cumulative duration” rule, which currently makes certain workers ineligible for new work permits if they have been working in Canada for four years and bans them from applying for a new one for an additional four years.
  4. That IRCC reform the Express Entry immigration selection system to allow for fixed-term employment contracts to be allocated the same number of points as permanent work contracts, where there is a strong likelihood of continued employment.
Monitoring and enforcement
The Committee acknowledged that program monitoring and enforcement remains an issue, despite recent steps towards improvement. The Committee recommends as follows:
  1. That ESDC, in collaboration with relevant stakeholders, review current monitoring and enforcement mechanisms, with the objective of addressing gaps in employer compliance and the protection of migrant workers’ rights. In addition, an effort shall be made to move away from a complaint-driven model of program enforcement. The review shall take into consideration the following specific measures:
    • increasing resource and information sharing with provinces and territories;
    • increasing the frequency of on-site inspections and ensuring that they be conducted while temporary foreign labour is being used;
    • creating an accreditation system for recruiters, which requires compliance with the TFWP rules and from which employers could exclusively select;
    • establishing a dispute resolution mechanism for migrant workers when conflict with an employer arises;
    • ensuring, through on-site inspections, that labour laws and regulations are properly enforced where migrant workers operate; and
    • guaranteeing that any workplace injuries that require immediate attention be granted emergency care where deemed necessary in Canada.
  2. That ESDC, in collaboration with stakeholders, establish measures to ensure that incoming migrant workers and their employers are informed of their rights and responsibilities under the TFWP, including dispute resolution and abuse reporting procedures, as well as information on wages, benefits, accommodations and working conditions; and that the Department undertake best efforts to provide this information in the language of preference of the migrant worker.
The next steps
“The Committee has undertaken a major project and returned with some welcome recommendations that would benefit Canadian workers, foreign workers, and businesses alike. Representatives from each stakeholder group have been consulted and, consequently, the report is thorough,” says Attorney David Cohen.
“Although some of the recommendations may be tweaked or shelved, I would expect many, if not most, of these recommendations to become part of the program regulations in one form or another. With a program that is likely to undergo significant changes over the coming months — and as businesses and workers figure out exactly what may be required of them before and after the program is modified — I would encourage stakeholders to consult an expert on Canadian work permits to ensure a smooth hiring process.”
Source: http://www.cicnews.com/2016/09/parliamentary-committee-recommends-21-changes-to-temporary-foreign-worker-program-098523.html