Employing foreign workers just got harder 


May 2013

Employment and Labour Bulletin

Reacting to the recent public backlash over alleged abuses to the temporary foreign worker program (TFWP), on April 29, 2013 the federal government announced a series of legislative, regulatory and administrative changes "ensuring Canadians have first chance at available jobs".

The principal changes to the TFWP are:

  • effective immediately, a temporary suspension of the Accelerated Labour Market Opinion (LMO) process

  • effective immediately, eliminating an employer's flexibility to pay temporary foreign workers at wage rates (5% to 15%) below the prevailing wage rate for the occupation

  • amending the Immigration and Refugee Protection Act to increase the government's authority to suspend and revoke work permits and LMOs in the case of misuse

  • introducing a fee for the processing of LMO applications and increasing the fee for processing work permits

  • amending LMO application forms to require employers to verify that Canadians are not being replaced by foreign workers

  • requiring employers who rely on foreign workers to have a firm plan in place to transition work to Canadian workers

  • identifying English and French as the only languages that can be used as a job requirement, unless an employer can demonstrate that a foreign language is an essential job requirement

These changes will reverse initiatives introduced by the same government over the last few years, designed to assist Canadian employers experiencing labour shortages when Canadians were not available to do the work.

Critics of the current rules have argued that foreign workers are too often being used as a source of cheap labour that has driven wages down and contributed to the continuing high unemployment rate in Canada. Conversely, critics of the proposed changes are saying that they will put increasing pressure on small businesses that have otherwise been unable to recruit Canadian workers and on other employers that have experienced skill shortages.

The announcement is simply the first step in what the government calls on "ongoing" review of the TFWP. We will keep you informed of further changes as they develop.

by David Elenbaas

Any member of our Employment and Labour Relations Group would be pleased to discuss the impact of these changes.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013