Canada's Temporary Foreign Worker Program: Not so temporary after all

Posted by Sharaf Sultan on April 30, 2013

Canada’s Temporary Foreign Worker Program (TFWP) has come under serious criticism during the past several weeks. 

The program is being charged with taking jobs away from Canadians and permanent residents, leaving locals unemployed while depressing the wage levels of those who are employed.   The criticism of the program has been both severe and swift.  The pressure has been so great that the federal government has just this week proposed various reforms to the program.   

Throughout the latest firestorm there has not been enough debate of substance. Rather, and unfortunately, the bulk of the discussion on this issue has consisted of overreaching claims regarding the apparent damage this program is doing to Canada’s labour market and the impact it has on foreigners. 

While this can be partly explained by the emotions that this topic has ignited, it is of paramount importance that policy relating to the Temporary Foreign Worker Program be formed in an atmosphere of reasoned and informed debate. 

What is the Temporary Foreign Worker Program? To read further please click here.

Major Changes to Canada's Temporary Foreign Worker Program Announced

Posted by Sharaf Sultan on April 30, 2013

The federal government announced yesterday that it is overhauling the Temporary Foreign Worker Program (TFWP).  This follows recent criticism of the program, namely that it was taking away opportunities for Canadians and reducing general wage levels across the country.

The proposed changes include the following:

  • A requirement that employers have in place a plan to shift to hiring Canadian workers
  • Cancellation of a pilot project that allowed employers in certain circumstances to pay up to 15 percent below the prevailing wage rates to temporary foreign workers
  • Increased government authority to suspend and revoke work permits where employers are deemed to be abusing the program
  • A requirement for employers to pay new fees in requesting to hire a foreigner
  • An immediate suspension of the Accelarated Labour Market Opinion process, which allowed for expedited processing of temporary work permits
  • A rule that English and French can be the only languages required for job 

We will be both assessing and providing further analysis of these changes shortly.  We are also hosting a session at our Toronto offices on May 22nd on managing global mobility in the light of changing immigration and employment rules and regulations.  Do not hesitate to sign up for this free seminar at the following link.

For further questions, please do not hesitate to contact the writer at ssultan@heenan,ca or 416-777-4175.   

Judicial Review of decision to hire Chinese Workers set to begin this week

Posted by Sharaf Sultan on April 07, 2013

A federal court this week will hear a challenge of the decision of Human Resources and Skills Development Canada (“HRSDC”) to allow 201 Chinese workers into Canada. 

The case involves HD Mining, a Vancouver-based mining company, which came under intense public scrutiny for its hiring of hundreds of Chinese nationals to work at its Murray River Coal project, a major coal mining project in northern British Columbia.  The company was initially granted approval by Human Resources and Skills Development Canada (“HRSDC”) to have over 200 Chinese workers enter Canada to work in developing the mine. 

Two prominent labour unions, the International Union of Operating Engineers (the “IUOE”) and the Construction and Specialized Workers' Union (the “CSWU”), charge that HD Mining did not follow the proper procedure in hiring foreigners.  The unions specifically argue that HD Mining did not make enough efforts to find Canadians for these jobs and that accordingly, the decision of HRSDC was improper. 

In securing permits for the Chinese workers, the company applied to HRSDC in British Columbia for positive Labour Market Opinions (“LMOs”). Approval from HRSDC is a necessary prerequisite to the entry of most foreign workers into Canada’s labour market. This process involves an assessment of the local labour market to determine whether allowing a foreigner to work in Canada is justifiable in the circumstances, such as where there is a shortage of skilled labour.

The unions argue that HD Mining was presented with several qualified Canadians who were more than capable of doing the jobs needed. The unions also accuse HD Mining of acting inappropriately in not interviewing or otherwise seriously considering local applicants. The unions specifically point to the fact that HD Mining received approximately 230 resumes from Canadians or Permanent Residents, but hired only 12 to support their claim that the company did not make sufficient efforts to hire locally.   

The federal court will now have an opportunity to weigh in on the matter.  The court’s decision will be closely followed as it will likely set an important precedent in the law applicable to the hiring of foreign workers.   

What does this mean for employers?

This case is important for any employer that has ever or may ever hire foreigners.  The number of temporary foreign workers has exploded in recent years, in part because of the prominent and growing skills labour shortage in Canada.  This decision could accordingly have serious implications for employers who are struggling to find practical strategies to secure the right skills for their labour force. 

We will continue to monitor this case and provide updates and analyses as more information becomes available.   

For more information please contact Sharaf Sultan (ssultan@heenan.ca) or at (+1)416-777-4175. 

Canadian Government Launches World's First Start-Up Visa

Posted by Andrew Carricato on April 02, 2013

On April 1, 2013 the Government of Canada officially launched the world’s first Start-Up Visa Program aimed at recruiting innovative immigrant entrepreneurs.  Announced on January 24, 2013, Citizenship and Immigration Canada’s (« CIC ») new Start-Up Visa Program will link immigrant entrepreneurs with private sector organizations in Canada that have experience working with start-ups and who can provide essential resources.

What it is?

The new visa is a bold new approach to attracting the world’s best and brightest start-up entrepreneurs to make Canada their destination of choice. The Program is unique because it will provide foreign entrepreneurs valuable assistance in navigating the Canadian business environment. For example, it will provide highly sought after entrepreneurs permanent residency and immediate access to Canadian business partners. This is expected to provide Canadian private sector organizations a powerful new tool which will allow them to attract global entrepreneurs who, it is hoped, will result in significant job creation.

How it works?

In order for an immigrant entrepreneur to qualify for the new Start-Up Visa Program, they will need to secure a minimum investment of $75,000 from a Canadian angel investor group or $200,000 from a Canadian venture capital fund. In addition to certain other program requirements, they will also have to possess certain educational qualifications and meet language proficiency standards.

At the outset, CIC will collaborate with Canada’s Venture Capital & Private Equity Association (CVCA) and the National Angel Capital Organization (NACO).  These groups will identify which members of their associations will be eligible to participate in the Program. CIC is also finalizing details of cooperation with the Canadian Association of Business Incubation (CABI) to include business incubators in the list of eligible organizations. A full list of designated venture capital funds and angel investor groups is now available on the Citizenship and Immigration Canada website.

The pilot program will run for five (5) years. Initially, the emphasis will be on the quality of the applicants and on achieving successful outcomes. The number of applicants accepted will therefore initially be highly limited. Assuming the Program is successful, CIC hopes to expand it to formally introduce a new economic class in the Immigration and Refugee Protection Regulations.

The Start-Up Visa Program represents CIC’s latest effort at meeting the new and evolving needs of the Canadian economy by building a faster and more flexible economic immigration system.

If you would like to know more about this new Program or are interested in other employment related immigration matters, please contact us.

 

For more information see:

News Release — Historic New Immigration Program to Attract Job Creators to Canada

Backgrounder — The new Start-Up Visa Program: An Innovative Approach to Economic Immigration

Federal Government tightening rules surrounding hiring of Temporary Foreign Workers: A quiet revolution of Canada's immigration program comes into the national spotlight

Posted by Sharaf Sultan on March 30, 2013

Canada has taken in increasingly higher numbers of temporary foreign workers.  The growth has been so significant in recent years that the annual intake of temporary foreign workers in Canada now consistently surpasses the number of permanent resident arrivals.

There are widely differing opinions as to whether this is a positive, negative or neutral development.   Setting aside the often inflammatory and populist commentary on this issue, the reality of Canada's economy and labour market means that the country will almost certaintly continue to accept high numbers of temporary foreign workers. 

This is primarily because of the simple fact that there is an immense and growing skills gap in Canada's labour market.  Specifically, employers across the country continue to struggle to find applicants with the right skills to fill job vacancies.  This issue is only likely to become more pronounced in the future.  By some accounts, by 2020, there will be over a million unfilled jobs in Canada as a direct result of needed skills. 

While domestic job retraining programs may partially address the problem, this at best presents a partial solution to what is a large and chronic national issue.    Given this, Canada faces two options: (1) to significantly increase the annual intake of permanent residents from  approximately 250,000 to at least 400,000 or (2) to maintain or grow the number of temporary foreign workers granted access to Canada each year.  Given current public opinion, it is much more likely that Canada will choose temporary workers over a significant increase in the intake of permanent residents. 

Coming changes to the Temporary Foreign Worker Program

At the same time that the number of temporary foreign workers in Canada has increased, so has criticism aimed at the Temporary Foreign Worker Program (the “TFWP”) – the set of rules and regulations governing the employment of temporary workers. 

The Federal Government has been the target of a sustained campaign of harsh criticism for its management of the TFWP.  Specifically, prominent labour groups across Canada charge that the program has acted as a drag on local labour standards, depressing local wages and reducing the number of work opportunities available to Canadians.  The criticism is forcing a national conversation about a program that has to date received astonishingly little attention.

The Federal Government has responded to the criticism through a set of proposed changes to the TFWP, presented as part of the 2013 Federal Budget.  These include the following initiatives:  

  • The Federal Government will work with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs
  • Employers will be expected to make greater efforts to hire Canadians before they will be eligible to hire temporary foreign workers
  • The Federal Government will actively assist employers who rely heavily on temporary foreign workers to find local employees
  • The Federal Government will amend the Immigration and Refugee Protection Act and Regulations to restrict non English or French job language requirements
  • The Federal Government will introduce user fees for ministerial reviews of whether a foreigner should be allowed into Canada on a temporary basis  

What does this mean for employers?

The TFWP is still a largely positive program, providing employers with tools to secure skills needed from abroad which cannot be found locally.  The recent high profile criticism of the TFWP and the government’s response is important however because it serves as a warning to employers that they will be expected to adhere to what are likely to become increasingly strict rules and regulations surrounding the hiring of foreign workers on a temporary basis. 

Employers would accordingly be wise to treat the hiring of foreigners with the same importance as any other human resource matter, including through advanced planning and organized execution.  Such an approach can help to ensure that employers are in the best position to take advantage of the TFWP while avoiding potential associated liabilities. 

For more information, contact the writer at ssultan@heenan.ca or at (+1)416-777-4175

Human Rights and Temporary Foreign Workers: Tribunal delays hearing to allow worker to sort out immigration status

Posted by Sharaf Sultan on March 30, 2013

The number of temporary foreign workers in Canada has increased exponentially over the last 10 years, and in particular since 2006.  There are now over 250,000 foreigners entering Canada each year under a temporary work permit, and approximately half a million temporary foreign workers in the country at any given time.

As the Globe and Mail reported this past week, the number of foreign labourers in Canada has increased to the point where they now represent 1 in 50 workers across the country.   

Unsurprisingly, as the number of temporary foreign workers increases, so does the number of disputes arising between temporary foreign workers and their employers. 

Foreign workers however often face both unique and significant obstacles when pursuing claims against their current or former employers.  This is primarily because of the fact that foreign workers by definition have temporary status in Canada.  What this means is that most temporary workers who pursue claims against their employers face a real possibility that their status will expire before a decision on or resolution of their matter.  This means that a foreign worker who brings files a claim may not be present in Canada nor have the papers necessary to return to Canada to attend in person for a tribunal or court appearance. 

These realities present a serious risk to maintaining access to justice, particularly given the sheer number of temporary foreign workers in Canada at present.   

Courts and tribunals have accordingly begun to seriously address this problem.  A good example is the recent decision of the Ontario Human Rights Tribunal (the “Tribunal”) of Hazel v. 624091 Alberta Ltd., 2013 HRTO 435 (CanLII).  The case addresses a claim by a foreign worker who states that his employer discriminated against him on the basis of citizenship, disability, and race.  The employee, a citizen of Trinidad, was in Canada under a temporary worker permit granted by the federal government’s pilot project for occupations requiring low levels of formal training.  The worker states that his employer improperly provided him low wages, denied him health insurance, did not provide him with certain safety equipment, and ultimately terminated his employment shortly after he became injured.

The employee asked for the Tribunal to adjourn a scheduled hearing on the basis that he did not have status to travel to Canada.  The Tribunal’s normal practice is to require that all parties attend in person in order to be available to present their case and to be available for cross-examination.  Exceptions to the requirement are generally dealt with on a case-by-case basis.  The employer took the position that the matter should not be adjourned.  The Tribunal however allowed the adjournment in order to provide the former employee with an opportunity to apply for approval to come to Canada to attend at the Tribunal. 

Why is this case important?

This case is important because it demonstrates that judicial and administrative bodies are willing to accommodate the immigration status of temporary foreign workers and former temporary workers.  It means that employers will not be able to rely on the fact that temporary workers will likely leave Canada to avoid potential liability.  To the contrary, employers are likely to see temporary workers pursue claims until they are heard by judges or other decision-makers. 

This case is an important development, particularly given that employers are already under greater scrutiny by Canadian immigration authorities with respect to the manner in which they treat foreign workers.  Employers would accordingly be wise to ensure that they are familiar with all rules and regulations pertaining to the hiring of foreign workers and that they take proactive steps to reduce the chance of potential liabilities. 

For more information, please contact the writer at ssultan@heenan.ca or at (+1)416-777-4175.

Americans top list of illegal workers apprehended in Canada

Posted by Sharaf Sultan on March 17, 2013

The Canada Border Services Agency (the “CBSA”) recently stated that it caught more citizens of the United States working in Canada without authorization in 2012 than any other nationality.

After Americans, citizens of the Philippines and Israel were the most frequently apprehended for working illegally in Canada  Other nationalities with a high frequency of arrest for working illegally in Canada include India, Ireland and Mexico. 

While it may be surprising that United States citizens topped the list, it is important to keep in mind that they are subject to less enforcement.  Specifically, US citizens are not required to apply for a visa in advance of travel to Canada’s border.  The greater ease with which United States citizens can enter Canada means that there are fewer mechanisms in place to control and monitor their activities in Canada.  Israeli citizens are similarly exempt from the requirement to apply for a visa in advance of arrival in Canada.      

The CBSA stated the following in reviewing the incidences of illegal workers in Canada. 

Individuals working illegally in Canada undermine the integrity of our immigration system and hurt those foreign workers who abide by our laws

CBSA appears to have stepped up its enforcement of Canada’s immigration laws in recent years, with a particular focus on those working in Canada. 

This has occurred in lockstep with the exponential growth in the number of temporary foreign workers entering Canada on an annual basis, which has increased from approximately 60,000 to roughly 250,000.  CBSA enforcement includes not only checks at Canada’s borders but also raids against organizations suspected of illegally employing foreign workers. 

The concern is that as the number of foreign workers increases, so will the incidence of abuse of the immigration system.  This is a particularly sensitive issue given the recent public criticism of the Temporary Foreign Worker Program (the “TFWP”) - the system of rules and regulations governing the entry of foreigners to Canada. 

Specifically, prominent labour groups across Canada have criticized the TFWP as undermining the Canadian labour market by allowing foreigners to take away jobs that would otherwise have been available to Canadians and as being responsible for driving down Canadian workers’ wage rates and working conditions.

What does this mean for employers?

The latest statistics from the CBSA make it clear that the agency is vigorously enforcing Canada’s immigration laws, regardless of nationality.  Employers should accordingly take the necessary steps to understand the rules and regulations governing the entry of foreigners into Canada’s labour market.   This can help to reduce the risk not only that individuals will be found to be violating Canada’s immigration laws but also that employers will be found to be operating in contravention of the TFWP. 

Employers that do not adhere to Canada’s immigration laws can be subject to harsh sanction, including a revocation of their right to hire foreigners, fines, as well as the imprisonment of those responsible for facilitating the illegal entry of individuals to Canada’s labour market.    

For more information, please contact the writer at 416-777-4175 or ssultan@heenan.ca

Former Chelsea Football Club Sports Psychologist sues Vancouver Canucks over work permit dispute

Posted by Sharaf Sultan on March 10, 2013

An Italian sports psychologist has filed a claim with the British Columbia Supreme Court, claiming that the Vancouver Canucks are responsible for damages relating to wrongful dismissal and mental distress. 

The psychologist, Mr. Demichelis, claims that the Vancouver Canucks and co-owner Mr. Aquilini induced him to leave his employment with the Chelsea Football Club in the United Kingdom and to work for the Vancouver Canucks in Vancouver. 

Mr. Demichelis claims that he initially declined the Canucks offer of employment but that he later accepted it after sustained efforts on the part of Mr. Aquilini and the team.   Mr. Demichelis specifically states that the Vancouver Canucks stated to him that he was the person the Canucks needed to improve the players’ physical and psychological well-being.  Mr. Demichelis also claims that he was told that his expertise was essential to winning the Stanley Cup.

Mr. Demichelis further alleges that he agreed to a two year contract with the Canucks starting July 2012 for a salary of $700,000, along with a signing bonus of $400,000. He also states that the Canucks agreed to market Mr. Demichelis’ expertise to other professional clubs in North America. 

Mr. Demichelis was told in December 2012 that his employment would end at the end of January 2013.  He claims that the club explained to him that, as part of the process of trying to secure him a work permit, they found Canadians that were able to fulfill the requirements of his role. 

Mr. Demichelis claims that he has suffered significant damages in part because he gave up his employment in the United Kingdom and moved his family to Vancouver. 

The Vancouver Canucks have yet to file a Statement of Defence.

What does this mean for employers?

This case demonstrates the potential pitfalls in the employment of foreigners.  In particular, employers can face significant liability when disputes arise from the hiring and/or employment of temporary foreign workers.  This issue is becoming increasing commonplace in large part because of the exponential growth in the number of temporary foreign workers in Canada.  There are now approximately 250,000 individuals entering Canada on an annual basis under a temporary work permit, and 500,000 temporary foreign workers in the country at any given time. 

Employers should accordingly ensure that they receive adequate employment and immigration advice to ensure that all matters relating to the hiring of foreign workers are addressed adequately and in a seamless fashion.  This can help to ensure that employers are in the best position to defend against claims should disputes arise. 

 For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175  

Transferring workers to Canada? Know the terms to which you will be bound

Posted by Sharaf Sultan on February 24, 2013

As international trade continues to grow, so does the number of people crossing borders.  And I am not referring to tourists.  Instead, I am talking about the increasing number of workers relocating between an organization’s various global offices. 

This is happening because, as companies expand to new markets or have their production needs satisfied across countries, they need staff to work in various jurisdictions in order to attend to market specific issues. 

This global phenomenon has taken root in Canada.  This is verified when one looks at the number of temporary foreign workers entering Canada on an annual basis, which has exploded in recent years from 60,000 to over 250,000.  This increase is largely explained by the growth in the number of companies transferring employees from various global offices to Canadian ones.    

There is significant risk in transferring employees to Canada.  This is because a company can find itself liable in the event that a conflict arises between the employee and the organization or if the employee’s employment is terminated while in Canada.  Should this occur a company may find that an employee is entitled to significantly more in Canada than what may be the case in another jurisdiction.    Employment laws in Canada are, for example, more generous to employees than they are in most jurisdictions in the United States, particularly with respect to termination pay.  Other relevant laws, such as those relating to human rights and occupational health and safety, are often markedly different in Canada than in other jurisdictions. 

Given these issues, employers may find that a “straightforward” and “simple” short term assignment to Canada results in significant unforeseen liability. 

What to do?

The best way to avoid liability for employees transferred to Canada is to address all employment related matters in advance of an employee’s transfer.  Specifically, employment and immigration issues should be address simultaneously.  When thinking of relocating an employee to Canada, employers should be discussing at the same meeting immigration and employment matters.  The following provides examples of questions which employers should be asking when planning for a transfer:

  • What are the immigration options for having the employee work in Canada?
  • What are the relevant employment laws for the jurisdiction(s) in which this employee will be working in Canada?
  • How can we most effectively address these liabilities?  

A systematic and efficient approach to the transfer of employees to Canada can help to significantly improve predictability of results while reducing risk of liability. 

For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175

Canada to pay price for its low production of babies: Time to look abroad

Posted by Sharaf Sultan on February 18, 2013

For years the Canadian public has been warned about the coming retirement of the so-called Baby Boomers.  The concern has been that the supply of young people entering the labour market has been dropping precipitously just as the wave of Baby Boomer retirees quickly approaches.

It appears that the day of reckoning is upon us.  As the Globe and Mail reports today, at some point this year the number of young workers entering the labour market is set to no longer outnumber the number of individuals exiting the market (i.e. retiring).  Specifically, the Globe reports that in 2013 the number of 15- to 24-year-olds will begin to drop below the number of 55 to 64 year olds for the first time ever.

A record to celebrate? Not so much

Rather than congratulating Canada’s Baby Boomers for reducing Canada’s baby production to record low levels, the country must instead grapple with what is quickly becoming a serious demographic problem.  Less young people entering the labour market threatens Canada’s tax base, meaning that there may not be enough money to support a rapidly aging population.  Employers will also have an increasingly difficult time finding the skills necessary in order to drive their businesses forward, potentially hurting Canada’s competitiveness and, by extension, its economic growth rate.    

Various studies point to potential home grown solutions to this demographic problem.

A common one is that we should not be concerned because people are not retiring until much later in life today.  While it is true that increasing numbers of workers are putting off retirement, this presents at best a temporary solution.  The fact is that the Baby Boomers will retire, they will retire in large numbers, and it will begin shortly. 

Others point to the potential of activating idle labour across the country, through initiatives such as job retraining programs and improving labour mobility so that people move to areas of the country where skilled labour is required.  There is however only so much slack in Canada’s economy and certainly not enough idle labour to fully address what is a major shift in Canada’s demographics. 

The fact is that, the various solutions suggested will at best act as stop-gap measures that only partially address what is an enormous and historically remarkable demographic shift. 

Time to import the goods  

So how is Canada to ensure that it secures the skills necessary in order to drive its economy forward and improve living standards as its population ages? The answer will almost certainly lie in large part through immigration, both permanent and temporary. 

While permanent migration to Canada has remained relatively stable, the number of temporary foreign workers has increased in recent years at an exponential rate, from approximately 60,000 individuals in 2006 to over 250,000 today.  The massive growth of this largely employer-driven program demonstrates that companies are already looking abroad in order to secure the skills needed which they cannot find locally.  This trend will undoubtedly continue.

Already immigration represents almost all of Canada’s labour-force growth.  Employers which may not have considered hiring foreigners will take seriously this option in the future.  This will not be limited only to extractors of raw materials but will pervade across the entire economy from coast to coast. 

Employers would accordingly be wise to become familiar with the rules and regulations of the Temporary Foreign Worker Program in order that they are prepared to use this tool when required. 

For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175

Federal Government Cuts Employment Insurance Benefits to Temporary Foreign Workers

Posted by Sharaf Sultan on December 30, 2012

The Federal Government recently announced cuts to special rules that provided pregnancy, parental and compassionate care Employment Insurance benefits to temporary foreign workers.  The cuts took effect on December 9th, 2012 and are expected to immediately affect approximately 1,900 temporary foreign workers.

Temporary foreign workers are provided work permits which describe both the time period in which someone is able to work in Canada and any restrictions to the work, such as only being able to work with a specific employer or at some specific location within Canada or a province or territory.

The cuts affect a wide range of temporary foreign workers, including those with expired Social Insurance Numbers or, alternatively, those with expired work permits.  Under the old rules, such individuals were eligible to attain employment insurance benefits under certain circumstances. 

The changes are most likely to affect seasonal temporary workers who often work in Canada for several months before taking breaks in their country of citizenship.  Approximately 11,650 temporary foreign workers collected Employment Insurance benefits in 2011.  Such individuals would often collect Employment Insurance benefits while in their home country which would provide financial assistance during their absence from Canada. 

The Federal Government has stated that the cuts are aimed at maintaining the integrity of the Employment Insurance regime.  Specifically, government representatives pointed to the fact that under the normal Employment Insurance rules workers are not able to attain benefits when outside of Canada. 

The Federal Government further stated that providing individuals who are ineligible to work in Canada Employment Insurance is inconsistent with the underlying purpose of the program which is to provide assistance to individuals who are actively seeking employment. 

Canadian Employers Come Under Scrutiny for Treatment of Foreign Workers

Posted by Sharaf Sultan on September 24, 2012

The Globe and Mail recently reported that Mexican government officials have warned a variety of employers in British Columbia that they could lose hiring privileges if they do not improve the employment conditions of Mexican seasonal agricultural workers.

These workers are brought into Canada on an annual basis under the Seasonal Agricultural Workers Program.   The program is jointly administered by Human Resources and Skills Development Canada (“HRSDC”) and Citizenship and Immigration Canada (“CIC”) and allows Canadian agricultural employers to hire workers from Mexico and various Caribbean nations on a purely seasonal basis.  The program has expanded so that there are now several thousand seasonal agricultural employees from Mexico and the Caribbean working in British Columbia.     The program requires employers to co-operate with both Canadian and Mexican government officials in order to both assess and monitor workers’ conditions on an ongoing basis. 

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Coming Changes to Skilled Worker Program Signals Continued Revamp of Canada's Immigration System

Posted by Sharaf Sultan on August 27, 2012

The Federal Skilled Worker Program (the “FSWP”) is the largest program for economic migration to Canada. The program has however often been criticized as leaving new permanent residents unprepared to succeed in Canada.  The federal government has accordingly been working to reform the program in order to ensure success for those who arrive under this category.  To this end, the federal government has just released the following proposed changes to the FSWP, including the following:

  • Making language the most important selection factor through establishing new minimum official language thresholds and increasing the points allocated to language skills
  • Priority to younger immigrants through a reduction in points for older applicants
  • Increasing points provided for Canadian experience while reducing points allocated for foreign experience
  • Streamlining of arranged employment programs to facilitate staffing of positions
  • Provision of points for spousal language ability and Canadian experience
  • Mandatory review of educational qualifications gained abroad as against Canadian educational standards and an accompanying award of points for compatibility with Canadian standards

The new changes are likely to take effect in January 2013, the same time that the FSWP is scheduled to reopen for new applications. 

Foreign Workers and the Law: Class Action Approval a Warning Shot to Employers

Posted by Sharaf Sultan on April 09, 2012

As I have written about in previous blogs, the number of temporary foreign workers in Canada continues to skyrocket.  Growth of this category of foreigners has been large and consistent so that the number of temporary foreign workers in Canada now confidently outstrips the number of new permanent residents allowed into the country each year.

Until relatively recently, this category of workers had received little if any attention.  The fact however is that temporary foreign workers represent the largest source of foreign labour in Canada, one which employers in Canada are becoming increasingly dependant.

With such large numbers, courts across the country are increasingly being faced with employment-related cases for temporary foreign workers.  One example is a recent decision of the British Columbia Supreme Court in Dominguez v. Northland Properties Corporation, 2012 BCSC 328 (CanLII).  

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Employees Working Across Borders: But where do they belong to?

Posted by Sharaf Sultan on March 16, 2012

A recent decision of the United Kingdom’s Supreme Court provides valuable insight into the issue of which laws apply to employees working in various jurisdictions. This is a phenomenon which is increasing exponentially as companies across the globe expand their operations and accordingly often send people to a variety of countries.

The case, Ravat v. Halliburton Manufacturing and Services Ltd., involved an employee who worked for Halliburton, a multi-national manufacturing company headquartered in Aberdeen, Scotland. He had worked for the company for approximately 16 years, from 1990 to 2006, at which point his employment was terminated.

During his time with Halliburton, the employee consistently alternated between living in the United Kingdom and working in Libya. Specifically, his normal regime included working in Libya for 28 days, followed by 28 days in back in Preston, United Kingdom during which time he had no obligation to do work. The work which he carried out in Libya was for the benefit of the German subsidiary of Halliburton.

Following the termination of his employment, the employee proceeded to bring forward a claim for wrongful dismissal. A preliminary question however was whether the Scottish employment tribunal had jurisdiction to deal with the matter, particularly given that the employee had spent so much of his time with Halliburton stationed in Libya. The employment tribunal ruled that it did in fact have jurisdiction to deal with the matter. This decision however was overturned by the appeal tribunal. The case subsequently made its way to the Supreme Court. 

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Employers to Become Equal Partners in Immigration as Quiet Revolution Continues

Posted by Sharaf Sultan on March 05, 2012

The Federal Government late last week signalled in no uncertain terms its determination to forge ahead with fundamental reforms to the immigration system.

The government has over the last few years been on something of a mission to reform a system that has traditionally focused primarily on permanent residency, including the “family class”, into one increasingly designed to facilitate the entry of workers to meet specific labour market shortages.  The changes have been aimed at addressing what both statistics and employers have been saying for some time: Canada is not producing enough skilled workers to service rapidly expanding industries, such as the oil and gas sectors.

As I have discussed in previous postings, last April fundamental changes to the Temporary Foreign Worker Program (the “TFWP”) came into effect.  These changes spelled out strict rules for employers to ensure their compliance with immigration rules.  Employers that stray from the rules through, for example, not adhering to pre-approved wages or working conditions, can find themselves subject to various sanctions, such as heavy fines or, worse, a ban against hiring foreign workers. 

The resulting modifications to immigration laws, such as these most recent changes to the TFWP, seem to be having their intended effect as the number of temporary foreign workers has in recent years climbed to the point where they now exceed the number of permanent residents accepted each year.

With great power comes great responsibility

The Federal Government’s announcement of last week appears to signal a continuing determination that employers will play an increasingly central role in deciding who can immigrate to Canada. 

The changes are nothing less than revolutionary.  All indications are that at least some of the notoriously creaky wheels of the immigration process will be deliberately lubricated to facilitate an expedited entry of workers to satisfy employer needs for skilled workers.  Specifically, the government will ensure that employers get their choice of workers quicker, a kind of “just in time” system designed to speed up the entry of workers to support commercial operations. 

Assuming the proposed changes come to fruition, it is clear that, while employers will play a greater role in the immigration system to secure desired employees, employers will have equally enhanced responsibilities to adhere to the increasingly complex regulatory environment surrounding immigration.  This means that employers would be wise to increasingly integrate immigration into overall Human Resources decision making, policy design, as well as overall execution.  Immigration will eventually cease to be a “one-off” issue but rather be part of comprehensive operational planning and ongoing compliance.  Revolutionary? Perhaps not, but a significant change nonetheless.

Oil, Gas and Potash game changers for the fight over global talent pool

Posted by Sharaf Sultan on February 13, 2012

Global demand has voted and the results thus far have produced clear winners and losers.

While Canada’s manufacturing sector continues to struggle under intense global competitive pressure, the commodities sector has found itself in the middle of a grand party, awash in new investment and  experiencing exponential growth.  This has resulted in increased job opportunities in western provinces as compared to their central Canadian compatriots. 

How big are commodities?

According to the Canadian Association of Petroleum Producers, Canada already produces approximately 3.2 million barrels of oil per day from a variety of sources.  This amount is forecast to increase to almost 5 million barrels by 2020, virtually all which will be produced in Western Canada.  Canada is already a major player in world oil production out-producing, among others, Venezuela, Brazil, Iraq, Kuwait, the United Arab Emirates, and Norway. 

Canada has also attracted a significant amount of investment in other commodity sectors.  For example, Canada is currently the largest producer and exporter of Potash and also the third largest producer of Natural Gas in the world. 

How is this growth affecting the labour market?

As Canada’s manufacturing sector loses ground to commodities, unemployment rates in both Ontario and Quebec  (along with all eastern provinces for that matter), continue to be significantly higher than western provinces.  To this end, the lowest rates of unemployment at present in Canada are Alberta, followed by Saskatchewan and Manitoba. 

At the same time, despite the rise in unemployment as a result of the last recession, there remain significant shortages of skilled labourers across a wide variety of industries.  Meanwhile, rapid expansions in natural resource production has led to growth in the underlying demand for skilled workers.

Crudely put (no pun intended), competition for skilled workers is heating up, and the commodities sector is becoming more aggressive at finding this talent wherever it can be found.

Given this environment, employers should be prepared for the increasing likelihood that they will be hiring foreign workers, either directly from a source country or from those who are already present in Canada.  As more companies hire foreign workers they will need to incorporate immigration matters, including hiring practices, into existing human resource policies.

Thinking of hiring foreign workers?

Posted by Sharaf Sultan on February 08, 2012

More and more businesses in Canada are hiring foreign workers.  In fact, the number of temporary foreign workers has ballooned in recent years to the point where they now outnumber new permanent residents.  There are many reasons for this trend, including a rapidly aging labour force, skills shortages for specific sectors of the economy, as well as federal government policy which has increasingly prioritized temporary foreign workers over permanent residence applications. 

The greater emphasis on temporary foreign workers has led to recent regulatory changes to the rules surrounding the hiring of foreign workers.  The changes, in force since April 2011, has resulted in significant changes to the Temporary Foreign Worker Program. 

What does this mean? Employers are increasingly under scrutiny with respect to the process followed in hiring foreign workers.  Specifically, Citizenship and Immigration Canada is watching to ensure that employers act in a manner consistent with their applications with respect to factors such as the wages and working conditions.  Employers are also now subject to heightened inspection with respect to the genuineness of any job offer and the past compliance of an employer. 

Employers also face serious consequences for non-compliance and/or for any perceived misrepresentation to Citizenship and Immigration Canada, including denial of any further work permits, fines, imprisonment, and/or public listing for companies on the Citizenship and Immigration Canada website declaring an employer’s inability to hire foreign workers. 

So, how are employers to deal with this greater scrutiny? There are several practical steps which can be taken, including establishment of an internal audit process which keeps records of ongoing work permits, details of work conditions of all foreign workers, including expiry dates of all those working under work permits.  Employers should also consider taking steps to ensure ongoing compliance and drafting of clear policies relating to foreign workers. 

Europeans Move to Streamline Immigration Process Signals an Intensification of Competition for Skilled Workers

Posted by Sharaf Sultan on January 16, 2012

The European parliament has recently passed a directive providing greater rights to foreign workers and significantly streamlining the process for gaining entry to the EU as a foreign worker. 

The law specifically allows non-EU individuals who are working legally within the EU to benefit from a range of rights similar to those of EU citizens.  This means that foreign workers will now benefit from the same rights as EU members with respect to working conditions, government pensions, social security, and access to a wide range of public services.

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