A new report on the Temporary Foreign Worker Program has made 21 recommendations for how it should be adapted to further meet the needs of Canadian employers.
The Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities has recommended a significant overhaul that would see the loosening of certain restrictions put in place by the previous Conservative government. You can read the report here.
In this writing, immigration.ca considers each of the 21 recommendations individually, setting out what it intends to achieve and why.
RECOMMENDATION 1
Extend work permits for caregivers in the low-wage stream from one to two years.
LMIA fees were increased from $275 to $1,000 in 2014, to cover the costs of more thoroughly assessing whether Canadians were available to fill positions.
Under the current rules, families hiring caregivers under TFWP must reapply for a work permit each year, and pay the $1,000 fee for a new LMIA. Combined with airfare costs and health insurance, the committee was told of a growing financial burden on families. As a result, the numbers of caregivers in Canada dropped dramatically between 2014 and 2015 (see chart).
This recommendation aims to reduce that burden by giving caregivers two-year work permits for each application.
There were calls for the fee to be abolished completely, or at least made refundable in the event of a failed application. It was pointed out that if a company wanted to hire 50 workers, it would cost them $50,000.
But the only recommended change on this point relates to the caregiver stream.
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RECOMMENDATION 2
Review the LMIA application process with a view to increasing speed and efficiency, and taking into consideration the National Occupation Classification as well as the adequate allocation of resources towards training and meeting service standards.
Long processing delays for an LMIA’s to be processed is one of the key issues regularly raised by Canadian businesses. Often they identify a need and want to bring someone in quickly, but have to wait a number of weeks before approval is granted (or denied).
Immigration Minister John McCallum has stated he wants to speed the process up, and this recommendation believes the main way to do this is with better training and more resources.
McCallum on Processing Times
“Their idea of a quick processing time is more like six days rather than six months (current target). Six days would be a stretch. But at the same time … we want to open our doors to the best and the brightest … so, obviously, I will be working very hard to try to accommodate their needs as best I can.”
The NOC element of this recommendation is also crucial, as technology firms looking to hire skilled TFWs often find the specific job they need is not covered in the stated list of occupations. A certain level of flexibility is required where these `new industry` jobs are concerned.
Quicker processing times could be achieved by moving as much of the process online as possible. With the plan clearly being to grow TFWP, the allocated resources should also grow proportionally.
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RECOMMENDATION 3
Implement a Trusted Employer Program with the objective of reducing LMIA processing times for employers who have demonstrated trustworthiness in their use of the TFWP.
Another suggestion aimed at reducing processing times, although one that would require extremely careful implementation.
A significant reason for the scaling back of TFWP was because certain employers were outright abusing the system, filling positions with foreigners while Canadians remained unemployed.
A Trusted Employer Program could give rise to the same kind of abuse, however the committee heard how similar systems currently operate in both the UK and Australia. Those obtaining `Trusted Employer` status would be given access to quicker labour market test.
RECOMMENDATION 4
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.
Post-graduate work permits for students graduating from Canadian universities are exempt from the LMIA and as such come under the International Mobility Program.
However, foreign faculty members are not covered by this exemption and therefore require an LMIA. The committee heard that such university professors and researchers “can contribute to strengthening Canada’s research and innovation performance, rather than filling a labour gap.”
This recommendation would see the exemption broadened to include all academic hiring.
RECOMMENDATION 5
Allow minor modifications to contracts between TFWP 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 Employment and Social Development Canada is adequately informed of any changes in short order. The changes must not violate the spirit of the job description.
Although not covered anywhere in the report, it would be sensible to allow minor changes to contracts provided they are agreed-upon. Often certain requirements of a position can be unforeseen until the worker arrives, so a certain level of flexibility could help reduce paperwork. It is certainly unhelpful for the whole application process to have to start again because of a few small changes that both employer and employee are happy with.
RECOMMENDATION 6
Restructure the TFWP such that it achieves better overall economic and social benefit for Canadians and program participants. Re-establish the TFWP into more specific program areas and streams that adequately reflect the realities of labour market needs in Canada.
This recommendation is all about flexibility. When the previous Conservative government introduced caps on TFWP, it did so to prevent abuse of the system in certain industries. But it failed to consider that other industries legitimately relied on temporary workers to continue to operate at full capacity.
The report states: “Witnesses from various sectors of the Canadian economy, such the seafood, hospitality and meat processing industries, reported challenges with respect to finding enough
Canadians to fill available positions and spoke of the impact that the cap has had on their production levels.”
Restructuring TFWP to offer greater flexibility would allow the government to introduce caps where they are needed without having an adverse impact elsewhere.
A new TFWP should allow the fish and meat industry to bring in more workers, and give flexibility to the hospitality industry because of the seasonal nature of their business.
The Conservative plan was to cap numbers of foreign workers at 10 per cent of a company`s total workforce by July 1, 2016. But the Liberals moved to keep the cap at 20 per cent following appeals from desperate employers.
RECOMMENDATION 7
Study the impact of expanding the definition of primary agriculture as found in the Immigration and Refugee Protection Regulations.
This recommendation relates to the seafood industry`s request to be included under the primary agriculture stream of the TFWP.
Under the primary agriculture stream, workers can be hired from any country for a maximum period of 24 months. It also includes access to the Season Agricultural Worker Program (SAWP), through which workers are secured through bilateral agreements with Mexico and certain Caribbean countries. These workers can only work in Canada for eight months.
It is clear the seafood industry needs help in sourcing a reliable stream of temporary labour. That could come as part of the restructuring in Recommendation 6, or by allowing it to be included under the primary agriculture stream. One or the other is certainly necessary.
RECOMMENDATION 8
Review and improve mechanisms in which migrant workers are brought into Canada to fill both temporary and permanent positions, preventing the use of the Temporary Foreign Worker Program to satisfy permanent labour needs.
When businesses are frustrated with the slow process of bringing in foreign workers, they will explore every avenue they can in order to get those workers in quickly.
Emerging technology companies have spoken of their frustration at how long it takes to bring in talent under the Express Entry system. As a result, many of them turn to the TFWP as a means of bringing workers quickly, but this is not what the program was designed for.
This recommendation says that if Canada`s programs for bringing in permanent workers were fulfilling the needs of employers, any need to abuse the TFWP in this way would be eliminated.
Businesses in Ontario openly admitted recently that they prefer TFWP over Express Entry for bringing in workers. This should not be a choice – either a company needs a temporary worker, or it needs a permanent worker.
Removing these type of applications from the TFWP would also free up resources to speed up genuine applications for temporary workers.
RECOMMENDATION 9
Provide an exemption on the Transition Plan requirement for 5% of a business’s workforce that consists of high-wage temporary foreign workers.
The Transition Plan was introduced by the previous Conservative government as part of the 2014 reforms of TFWP. Employers are required to outline specific recruitment and training policies that will reduce their reliance on high-wage foreign labour.
Companies argue that certain high-skilled workers do not exist in Canada, meaning a short-term solution also does not exist for replacing the temporary worker with a Canadian.
This recommendation would allow such workers to remain exempt from the Transition Plan, helping to speed up the LMIA process, and ultimately get a visa more quickly.
RECOMMENDATION 10
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.
One of the recommendations made to the committee was that apprenticeships should be expanded so that Canadians can learn from the high-skilled foreigners in the country under TFWP.
The report reads: “Alternatively, rather than requiring a Transition Plan setting out the company’s initiatives to transition to a Canadian workforce, witnesses suggested the TFWP could be used to increase training opportunities. For example, they spoke of using the program to create mandatory apprenticeship training opportunities for Canadians, which would ensure the transfer of knowledge domestically and lessen the reliance on temporary foreign labour over time.”
Many of the companies who were consulted as part of the TFWP review have major training programs in place, including the Entertainment Software Association of Canada, Technicolor, Montreal International and the Information Technology Association of Canada.
However, they were clear that the benefits of these programs would be long term, and that short-term labour needs still needed to be met by TFWP.
RECOMMENDATION 11
Monitor labour market needs as to ensure skills, training, and educational output match Canada’s current and future employment needs such that reliance on foreign labour diminishes, and invest in better collection and retention of labour market information in Canada to adequately assess labour market needs.
It follows that, if you do not properly assess the needs of the labour market, it is difficult to continually adapt immigration programs to meet those needs.
While sometimes labour market needs can move in an unexpected direction, it seems a safe expectation that more and more technology talent will be required, which is a concern given Canada already has a shortage of these highly-skilled workers.
Training and educational programs need to be put in place to tackle this, which requires broad-based strategic action from a number of government departments. This fundamental need goes beyond simply tweaking the requirements of Canada`s immigration programs.
Immigration policy can help plug the gap in Canada`s technology talent pool, but it needs to come as part of a government-wide initiative.
RECOMMENDATION 12
Set the cap on the percentage of temporary foreign workers a business can employ at a minimum of 20 per cent, and further review sector and geographic considerations.
This has been covered extensively under Recommendation 6, although it is worth considering the figures involved again.
As mentioned above, the Conservative plan was to cap numbers of foreign workers at 10 per cent of a company`s total workforce by July 1, 2016. But the Liberals moved to keep the cap at 20 per cent following appeals from desperate employers.
Quick Facts: Maritime Seafood Coalition
- Lobster industry relies on temporary foreign workers to fill 20 to 25 per cent of workforce
- This figure was as high as 50 per cent in plants located in rural communities.
- Labour shortage persists despite recruitment initiatives for Canadians such as increased wages,expanded benefits, more flexible work schedules, and, in the case of Prince Edward Island, a
bursary to attract university and college students.
- Had the 10 per cent cap been introduced, a loss of $123 million was estimated by the end of2016.
- Cap could also have hindered the industry’s ability to capitalize onrecent trade opportunitiesdue to lower production capacity.
There is a need for caps to be more flexible, both in terms of industry and geography. Imposing a blanket cap on everyone has not worked and needs to be reviewed as a priority.
RECOMMENDATION 13
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.
The Conservative changes in 2014 also imposed a rule that for low-wage jobs in areas with 6 per cent unemployment or higher, a LMIA would not be granted.
Again, it is easy to understand why this was imposed, but the zones used for determining unemployment rates were too broad.
The report states: “For example, smaller communities like Whistler, despite their lower unemployment rates, are grouped under larger regions where the unemployment rate is 6 per cent or higher. Several witnesses suggested that it would be more accurate to disaggregate unemployment data so as not to unfairly penalize communities.”
This is another issue related to flexibility. TFWP in its current form lacks the ability to adapt its requirements to different industries.
RECOMMENDATION 14
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.
Employer-specific work permits are widely considered to put temporary workers in vulnerable and powerless positions with their employers. Employees are far less likely to report their employer when the result could be their own deportation, due to the terms of their working visa.
The report reads: “The committee acknowledges that employer-specific work permits can place migrant workers in a vulnerable position with negative implications for their physical and mental well-being.”
Alternatives include restricting the visa by industry, or by geography as recommended by the committee, although both could lead to difficulties when considering a LMIA.
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RECOMMENDATION 15
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 entry visa must also be extended so workers can continue to enter and leave Canada.
RECOMMENDATION 16
- a) Review the current pathways to permanent residency for all temporary foreign workers, with a view to facilitating access to permanent residency for migrant workers who have integrated into Canadian society and are filling a permanent labour market need.
- b) Allocate adequate resources to allow for the timely processing of permanent residency applications for those migrant workers that are hired under the TFWP.
The purpose of federal government policy should be broad based and complement provincial policies as much as possible. It should be up to the provinces to create their own pathways to permanent residence for temporary workers. Federal policies should work alongside the provinces to facilitate these objectives within reasonable time frames.
It is not tenable for federal policy to create pathways to permanent residence for all temporary workers under this program.
The report reads: “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 residency.”
In terms of speeding up the processing, the whole system should be moved online where possible. With the immigration program set to grow, extra resources should be allocated towards this end.
RECOMMENDATION 17
The IRCC should work with provinces, territories and other government departments to increase information sharing to create more harmonization with immigration and nominee programs to function in collaboration with one another. That these efforts aim to reduce duplication of work benefitting both the government and applicants.
RECOMMENDATION 18
Amend the Immigration and Refugee Protection Regulations to remove the relevant provisions with respect to the “cumulative duration” rule.
Under the current rules, temporary workers who have been in Canada for a cumulative total of four years are not allowed to extend their permits, and are not allowed to apply for another permit for a further four years.
This resulted in cases where workers have seen their permits expire before an application for permanent residence can be processed.
Extending or possibly removing the four-year cumulative rule would help facilitate the above objective, but would increase the numbers of temporary workers in Canada under the TFWP.
One suggestion could be extending the period for renewing temporary permits to six years. It would be a fair assumption that if workers cannot become permanent after six years, they would be required to cede their place to new workers, or Canadians if they are available. The concept of temporary residence is commensurate with cumulative limitations on renewals.
RECOMMENDATION 19
Reform the Express Entry program 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.
The current Express Entry system, which selects suitable candidates for Canada’s federal and provincial immigration programs, awards fewer points for fixed term contracts than it does for permanent contracts.
The committee says it heard from several businesses, including animation firm Technicolor, where fixed term contracts are the norm for their employees. The industry’s labour shortage means it is in dire need,but the experience of its workers is not given the same number of points under Express Entry.
It would be an improvement to treat all Canadian experience equally.
RECOMMENDATIONS 20 and 21
20) 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:
- a) Increase resource and information sharing with provinces and territories.
- b) Increase frequency of on-site inspections while temporary foreign labour is being used.
- c) Creating an accreditation system for recruiters, which requires compliance with TFWP rulesand from which employers could exclusively select.
- d) Establish a dispute resolution mechanism for migrant workers when conflict with an employerarises.
- e) Ensure, through on-site inspections, that labour laws and regulations are properly enforcedwhere migrant workers operate
- f) Guarantee that any workplace injuries that require immediate attention be grantedemergency care where deemed necessary in Canada.
21) Establish measures to ensure incoming migrant workers and their employers are informed of their rights and responsibilities under TFWP, including dispute resolution and abuse reporting procedures, as well as information on wages, benefits, accommodations and working conditions. This information should be provided in the language of preference of the migrant worker.
The strict enforcement of the rules and requirements of TFWP are paramount when it comes to protecting workers’ rights.
Inspections of firms that employ temporary workers have increased significantly under the Liberals, as new powers – implemented in December 2015 – are enforced.
Those found not adhering to TFWP rules are subject to wide sweeping administrative money penalties (AMPs) of up to $100,000 per violation to a maximum of $1 million in any one-year period.
Employers can also be banned from using the program for one, two, five or 10 years, or permanently in the most serious cases.
The rules also apply to the International Mobility Program (IMP), a spin-off from TFWP which includes intra-company transfers and free-trade agreement work permit categories.
Banned employers are also ‘named and shamed’ on the federal government’s website.
It means that employers wishing to use TFWP need to be extremely careful when navigating the process of bringing in a foreign worker using the program. Then, once the workers begin working, employers must be careful the rules are being strictly followed.
Violations can include not making enough effort to hire a Canadian to do the job, not being able to produce documents for inspection or making the temporary worker do a different job to the one initially offered. Modifications to the position would constitute a change in terms and conditions which must be reflected on the worker’s documentation.
In the case of a live-in caregiver, the violations include not providing adequate accommodation. A full list of the violations is available here.
Temporary Foreign Worker Report: Conclusions
Overall the committee has found it difficult to attain balance in its recommendation for TFWP. Despite widespread calls, there cannot be a direct path to Canadian permanent residency for all temporary workers. This would be untenable.
There is scope for more temporary workers to become permanent residents, especially those who have integrated into Canadian society and are fulfilling a labour market need. It is right to remove some of the barriers to permanent residency that exist simply because of the way the Canadian immigration system is structured.
The process now passes to the affected ministries, which must decide how many of the recommendations it intends to address through regulatory amendments. The one certainty is that changes are on the way for the Temporary Foreign Worker Program.
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