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Dear Ms Powell,
I was trying to find some information about the changes to the temporary foreign worker programme but couldn’t find answers to my concern. My father asked me to write to you as he got sick due to the way his employer is treating him and wants to change his job but is not sure if he can. Can you please tell me, what are the changes to the programme, and can my dad change his job without getting into trouble? Thanks for your help.
– MM
Dear MM,
The Canadian government recently published the proposed Regulations Amending the Immigration and Refugee Protection Regulations (temporary foreign workers), aimed at strengthening protections for temporary foreign workers in Canada and improving the employer compliance and protections of international workers who come to Canada to work under the Temporary Foreign Worker Programme (TFWP) and the International Mobility Programme.
The difference between the two programmes is that individuals that come to Canada under the TFWP need to have a positive Labour Market Impact Assessment (LMIA) report, and those under the IMP do not need such a report.
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REGULATORY IMPACT ANALYSIS STATEMENT
The government of Canada identified several deficiencies with the TFWP in their 2016 report of the Standing Committee on Human Resources, Skills and Social Development as well as the Status of Persons with Disabilities. After consultation with foreign workers, they realised that most employees did not know or understand their rights as workers. They also found that some employers were either non-compliant or finding ways to avoid meeting their obligations to the workers. The most important finding was that many foreign workers did not have suitable access to information and healthcare.
Other concerns included that foreign worker were being charged illegal recruiting fees, some working conditions were not meeting the standards required, and that workers were afraid to report abuse for fear of reprisals.
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PROPOSED CHANGES
The proposed amendments are expected to address the existing gaps in worker protections and strengthen the programmes’ integrity. It is intended that enhancing employer compliance and amending the LMIA process will result in greater employer compliance and a safe workplace for foreign workers.
A summary of the proposed changes are:
1. Employers will be required to provide to each worker a document that clearly outlines their rights and duties.
2. The employees’ rights should be displayed in a public spot at the workplace.
3. An employment agreement must be provided to the worker and the government. The agreement must include details about the job duties, working conditions, wages, and must match the terms outlined in the employment offer.
4. The employer should agree to provide a workplace free of abuse.
5. Reprisal is classified as abuse.
6. Employment and Social Development Canada (ESDC) will have the authority to suspend processing of an LMIA if there are concerns that the employer has been non- compliant with any regulation or law.
7. Revision of the terms for granting an employer a positive LMIA report.
8. Reducing the time an employer must respond to a Notice of Preliminary Findings from 30 days to 15 days.
9. Tightening the ban and punishment on employers and recruiters charging workers illegal recruiting fees.
10. ESDC and IRCC will now have the authority to demand documents from third parties, such as banks, to ensure employer compliance.
11. Employers will now be required to make reasonable efforts to provide access to healthcare to employees who become sick or injured at work.
12. Requiring all employers under the TFWP (except those under the Seasonal Agricultural Worker Programme) to pay for and provide employees private health insurance. This insurance must include emergency medical care. The insurance should cover any period during which the temporary foreign worker is not covered by the applicable provincial or territorial health insurance system.
13. Employers who are found to have violated one or more of the programme conditions or requirements may face fines or administrative sanctions such as warning letters, administrative monetary penalties (ranging from $500 to $100,000 per violation up to a maximum of $1 million), and temporary or permanent periods of ineligibility from using the programmes.
14. The employer may seek leave to the Federal Court to commence an application for judicial review following sanctions.
The government recognised that additional measures are necessary to prevent vulnerable temporary foreign workers from experiencing mistreatment, abuse, and unsafe working conditions while working in Canada.
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TYPE OF PERMIT
The type of work permit that your father has will determine if he is authorised to change employers. If he has an “open work permit”, he may work with any employer. However, if he has an “employer specific work permit” he is obliged to remain with his current employer. It is best for your father to contact an immigration lawyer in Canada, directly, to review his employment contract, work permit, and to assist him with any other employment concerns he may have.
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Deidre S. Powell is an immigration lawyer, mediator and notary public with an office in Ottawa, Ontario, Canada. Submit your questions and comments to info@deidrepowell.com or call 613.695.8777. You can also find her at www.deidrepowell.com, Facebook, Twitter and Instagram.
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