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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