Audits and administrative monetary penalty regime possible game-changers

Audits and administrative monetary penalty regime possible game-changers
On Dec. 1, Citizenship and Immigration Canada and Employment and Social Development Canada will become the administrators of a new Administrative Monetary Penalty system meant to hold Canadian employers in check for compliance with Canada’s Temporary Foreign Worker Program.

While reform in this area has been an ongoing process, this new regime has the potential to be a game-changer.

When talk first began about reforms to the TFWP and employer sanctions for failing to comply with it, much of the reform seemed to centre around those individual employers that took advantage of temporary foreign workers or the labour market.

For example, an employer brings in a foreign national with a promise to pay a certain wage for work in a certain occupation. When the foreign worker arrives in Canada, the wage paid to him/her is much lower, or the working conditions are not as promised.

This was generally not an issue facing the corporate world, but it presented a very real challenge to enforcement officers in order to ensure people were not being taken advantage of. There was wide support for this type of reform.

But the landscape has changed. Large multi-national companies have been taken to task in the press for hiring foreign workers and outsourcing work to foreign countries. The media is repeatedly asking large Canadian businesses to demonstrate that foreign workers are being hired only where there is truly a labour market shortage and that Canadians are given the first opportunity at jobs.

This apparent wave of distrust of the temporary foreign worker program by the public at large, and what I can only imagine is an attempt by CIC and ESDC to get their houses in order, has led to the roll-out of the new AMP system.

It is extremely complicated. But its effect could have immense repercussions for Canadian companies that are caught offside.

Under the new regime, CIC and ESDC will hold companies responsible for any failures to comply with the TFWP. Violations are categorized into three types and points are awarded for violations based on severity, frequency, etc. Those points then translate into either monetary penalties, or into a loss of access to the TFWP for a period of a minimum of one year up to a potential lifetime bar.

The violations will be discovered during routine employer audits. These audits can occur randomly or as a result of an internal investigation. The scope of the audits and the penalty system are very complicated and outside the scope of this column, but Canadian businesses need to start preparing immediately.

Penalties have the potential to be severe and as of the date of writing, we still do not know how the government will treat any potential violations. What we do know is it is looking at all manner of violations — from not complying with the auditors, to failing to keep records, to failing to comply with salary or other stated potential benefits of the foreign workers employment, to not making reasonable efforts to provide a workplace free of abuse. As you see, there are a wide range of violations that are possible.

It seems the idea is to cast a wide net while holding employers accountable for their reasoning behind hiring foreign workers.

On the one hand, this all makes sense. Don’t let companies get away with providing false information to the government.

However, the other side is that conditions change during the course of employment. People are promoted, projects shift, salaries and bonuses are paid at year end. To not be able to include foreign workers in the regular growth and movement involved in large corporations almost creates a second class of worker, precisely what the original enforcement policies were purported to prevent.

One way to look at it is that it’s not the fact the foreign worker is moving up in the company or has a salary or bonus that is consistent with the industry and company standards. It’s that any change in the role means the “new” role should be opened up to the Canadian labour market, but in many cases, the role has only changed because of the foreign worker’s work in the role. It’s a Catch-22 that will become even more pronounced with the audit and AMP regime taking hold Dec. 1.

The audits have started. And with the government promise that one in every four employers that utilizes the TFWP will be audited each year, this is the time for all Canadian employers to be asking themselves: “Are we ready?”

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