Report on Temporary Foreign Worker Program is a hopeful sign of reform

Report on Temporary Foreign Worker Program is a hopeful sign of reform

The Report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities by the House of Commons was released this week with an overview of and recommendations for the Temporary Foreign Worker Program in Canada.

This was a sizable task, and while there was criticism for how slowly it was conducted, it’s actually a welcome sign that the government has acted so quickly to fix a program that is critical to the Canadian economy.

The Temporary Foreign Worker Program is the program that governs hiring of foreign workers through the Labour Market Impact Assessment route. In the business immigration realm, we traditionally use this for companies bringing in hired high- and low-wage workers. More recently, the TFWP is being used for individuals looking to boost their points in the Express Entry stream. The program overall has gone through multiple revisions in the past few years and has become more complicated and restrictive. As a result, use of the program has declined in the past year. The report indicates that the program dropped to only 90,211 approved LMIAs in 2015, from 163,035 in 2013.

This is in contrast to the International Mobility Program that governs the hiring of foreign workers through non-LMIA routes such as intra-company transferees or free trade agreements, to name a couple. These routes are generally preferred by employers as they are more direct as an application for the work permit is made without any sort of LMIA process. Immigration, Refugee, and Citizenship Canada makes the full adjudication of the validity of work, as well as the adjudication of the foreign worker. It’s a one-step process that can increase the overall speed to deployment for the hiring of a temporary foreign worker.

But the TFWP is often the best or only method for bringing in a new hire. It offers less uncertainty for an applicant applying at the port of entry, as the employment part of the application has been adjudicated, but it also engages employers in the process in a different way, encouraging them to only move forward with these types of applications for the best or most urgently needed applicants. And while this level of engagement is not necessarily a bad thing, the delays the process can cause, especially with inconsistent processing or unreasonable assessments and/or requests, can cause frustration with the process and an inability to quickly onboard workers.

The report outlines a number of recommendations, many of which echo the sentiments routinely expressed in the bar. Recommendation two, in particular, is a sensible recommendation for Employment and Social Development Canada to review the LMIA application process to increase speed and efficiency, as well as provide even more resources to ensure better training and meeting of service standards. This is an important first step, of course. But there are several recommendations that would have an immediate impact.

With recommendation three, we see a move toward addressing many of the concerns of the business immigration community. The report recommends creating a Trusted Employer Program to reduce LMIA processing timelines. This type of program would give employers who have shown that they are complying with the LMIA requirements access to a more streamlined process. There was a similar program a few years ago called the Accelerated Labour Market Opinion, which was an enormous benefit to the business community.

It didn’t exempt employers from following the rules, but it did create a program where employers attested they had complied with the terms. Processing was minimal on ESDC’s part, because all of the onus of compliance shifted to the employer. If the employer was found to be non-compliant down the road, penalties were imposed. This type of system is good because ESDC can quickly process. However, for small employers or others who do not use counsel, there is concern they would not understand the full risks associated with “owning” the full burden of compliance. But the ALMO was an incredibly beneficial program for executives and other applicants who needed fast deployment, and I would welcome seeing a similar program rolled out in the future.

Another recommendation that would have a significant impact to the relationship between the business community and ESDC is recommendation five, which recommends permitting minor modifications to the employment situation between employers and employees regarding the increases in wages in situations where both parties consent and the wage change does not disadvantage the worker. The recommendation states that ESDC should be adequately informed of these changes. This is a constant source of confusion for employers, as many companies have annual increases and bonuses as part of their normal operations and do not realize that “positive” changes also need to be reported. The key to this recommendation, in my opinion, is the statement, “The changes must not violate the spirit of the job description.” This would be a critical change, though I would highly recommend losing any reporting requirement for these routine increases provided there is no violation of the spirit of the job description.

There are promising suggestions such as in recommendation six where the report suggests re-establishing the TFWP into more specific program areas and streams that can adequately reflect the labour market. This would be welcome for industries and sectors that struggle to find workers. There are obvious sectors that would benefit, but this could also be extended to include employees being hired at a certain professional level. This would enable employers to attract the best and the brightest without lengthy processing times or inconsistent processing standards sabotage hiring process.

Other recommendations that would have immediate impact would be exempting the Transition Plan requirement for the 5 per cent of the business’ workforce that consists of high-wage temporary foreign workers, as well as several recommendations for low-skilled workers. While low-skilled workers are often considered critical to business operations in Canada, they are outside the scope of my everyday practice, so I am not going to address those here.

The report is a great start toward overhauling the TFWP. It recommends fair changes that do not disadvantage the employer, the temporary worker or the Canadian labour market. It increases Canada’s ability to attract foreign workers who are the best and the brightest, while also working to ensure that they are protected in their roles. I look forward to seeing the impact these recommendations will have in the coming year.

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