Earlier today, the Canadian federal government and ESDC jointly announced a new clause change in the Immigration and Refugee Protection Regulations Amendment to the Immigration and Refugee Protection Regulations on the Protection of Foreign Workers’ rights!

Amendment to the Immigration and Refugee Protection Regulations of Canada — Temporary Foreign Workers Part

Amendment to the Immigration and Refugee Protection Regulations - Temporary Foreign Workers Part

Earlier today, the Canadian federal government and ESDC (Ministry of Employment and Social Development) jointly announced a new clause change on the protection measures for the rights and interests of foreign workers in the Amendment to the Immigration and Refugee Protection Regulations!







In the new amendment, we mainly focus on the new changes:

Part 1:

Employers must sign an employment agreement (English/French) with foreign temporary employees before the employee arrives at work or on the first day of work and inform them of all rights and latest welfare content that they should enjoy in Canada.

At the same time, when employers recruited through the Temporary Foreign Labor Program (TFWP) submit a Labor Market Impact Assessment (LMIA) to ESDC, they must commit to signing an employment agreement with the employed foreign temporary employees and promise that no fees will be prohibited, including:

• Employer compliance fee

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• Recruitment-related fees

• Fees related to labor market impact assessment

Employers recruited through the IMP program must prove that when submitting an application on the employer recruitment portal, they themselves or the entrusted third party will charge the employee any of the above fees.

For foreign temporary employees

Your employer must:

• Provide you with information about your rights

• on or before the first day of work

• Pay your work expenses as provided in your employment agreement. This includes working overtime (if it is included in your agreement)

• to make reasonable efforts to provide you with a workplace that is not abused (including retaliation)

• comply with employment and recruitment standards in the province or region where you work

• Obtain and pay for private health insurance that covers your emergency medical care until you are eligible for the province or Regional Health Insurance (see the Medical Insurance section for exceptions)

• If you are injured or sick in the workplace, please do your reasonable efforts to provide you with health care

Your employer cannot:

• Force you to engage in unsafe jobs or your employment agreement does not authorize you to do a job

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If you are sick or injured, force you to work

• threaten or insult you

• does not include pressure in your employment agreement or force you to work overtime

• is punished for reporting abuse, unsafe work, insufficient housing or cooperating with the inspection of government employees

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• Deport you from Canada or change your immigration status

• Let you repay the recruitment-related fees they may have paid to hire you

TFWP and IMP

Temporary Foreign Labor Program (TFWP) (ESDC-led; co-managed by ESDC and IRCC)


• fills the local unmet temporary labor demand.

• All categories are required to be Labor Market Tested (LMIA) – ensuring Canadians and permanent residents have the first chance to get jobs and that job opportunities are consistent with Canadian wages and working conditions.

• Two-step process (except Quebec , Quebec also requires a certificate): Employers must first obtain an active LMIA from ESDC, and then foreign workers can apply for a work permit from the IRCC.

• ESDC develops policies related to labor market testing and TFW planning process design and conducts Labor Market Impact Assessment (LMIA).

• For Quebec positions, the potential impact on the Quebec labor market must also be assessed and a certificate of acceptance (CAQ) must be provided before issuing the LMIA.

• Once an active LMIA is obtained, foreigners can apply for a work permit from the IRCC (or CBSA at the port of entry). The IRCC or CBSA will evaluate the work permit application and issue a work permit to the workers. IRCC is responsible for the formulation of work permits and access requirements.

• ESDC works with IRCC and CBSA to conduct employer compliance activities under TFWP.

• course requirements vary by stream (high wage flow and low wage flow).

• Low-skilled workers account for the majority of workers under the program, mainly due to the large number of agricultural workers and nursing staff.

• As proof of their efforts to hire Canadians, employers must conduct different recruitment activities (advertise on Job Bank, conduct at least two additional recruitment methods, such as attending job fairs, professional recruitment agencies, etc.).

• LMIA is valid for 6 months (ESDC only evaluates the Canadian labor market for 6 months).

• applicants must submit a work permit application within 6 months.

International Mobility Plan (IMP)

• promotes Canada's wider economic, social and cultural interests.

• All streams are exempt from any labor market testing based on the broader benefits they offer.

• Foreigners may also obtain an open work permit that allows them to work for any employer for a specific period of time.

• Two-step process: Employers must first submit their job invitation through the employer portal and pay the employer compliance fee (unless an open work permit is required), before foreign workers can apply for a work permit from the IRCC.

• IRCC formulates policies related to LMIA waivers, work permits and access requirements.

• IRCC and CBSA evaluate work permit applications and issue work permits to workers.

• IRCC collaborates with ESDC and CBSA to conduct employer compliance activities under IMP.

• The program is designed to balance the needs of employers and employees.

• compliance does not cover open worker licenses because holders can leave the abuse of employers.

• The complexity of this program reflects its flexibility in responding to emerging needs.

In short, the former is a designated employer, jointly regulated by the IRCC and ESDC, linking foreign employees with specific employers, and applying this compliance system, while the latter is not subject to compliance system and allows foreign workers to work for any employer, and is regulated only by the IRCC.

Part 2:

modified the definition of "abuse of foreign employees" and refined the concept of "revenge"

In the plan before the amendment, employers need to provide employees with a reasonable workplace without abuse. In the new amendment, the Abuse definition specifically updated the content of "Reprisal", which means that employers are not allowed to retaliate against employees, including work environment, work content and personal attacks due to work and other relationships.

At the same time, employers must provide employees with complete health and safety services, including:

Any service that can be obtained for health care

Whether employers recruited through TFWP or IMP must make reasonable efforts to obtain complete health care services when temporary foreign workers are injured or sick in the workplace, such as:

• Ensure temporary foreign workers have a phone number to make emergency service calls; or

• organize transportation to hospitals, clinics or doctors' premises, but there is no need to pay.




Private health insurance for emergency medical treatment

All TFWP employers must obtain and pay for private health insurance, which covers emergency medical care services for temporary foreign workers not covered by their provincial or regional health insurance system. This condition applies to all TFWP employers.

When a worker is injured or sick due to work, most provinces and regions will provide workers' compensation benefits (compensate for wage losses). In such cases:

• Your employer shall not prevent you from filing a work injury compensation claim

• Please contact your local local employment or labour standards office for more information on workers' supplementary benefits.




Part I:

Provisions for protecting the integrity of the application procedure

I. ESDC and IRCC have the right under the amendment to require any third party (bank and payroll company) to intervene without the consent of the employer or worker to provide any documents and regulatory conditions they hold related to the employer's compliance in order to support the inspection of the employer.

HD Canada Ministry of Employment and Social Development and the Immigration, Refugees and Citizenship Canada will continue to comply with the privacy requirements of the Privacy Act and their respective legislation. They will only collect information necessary for the intended authorization purpose to support the inspection process and verify employer compliance, which may include information received through the TFWP Confidential Tips Hotline or online reporting tool. It also includes information from media coverage. Any relevant information will be shared with Canadian Immigration, Refugees and Citizenship inspectors.

2. Suspension of processing LMIA request

Canada Ministry of Employment and Social Development now has the right to suspend processing of LMIA requests if there is reason to suspect that the employer does not meet one or more of the following conditions and that the health or safety of foreign workers will be at risk after obtaining a work permit:

• Employer must actively participate in the business of providing the employment unless the employment is provided as a resident nanny.

• Employer must provide foreign workers with working conditions that are basically the same (and not less than) as specified in the proposal.

  • Employers must make reasonable efforts to provide a reasonable and non-abuse workplace.

  • Employers must comply with the conditions related to COVID-19.

    pause will remain in effect until there is no reason to suspect a serious risk threat to the health or safety of workers. In this case, the suspension will be cancelled and the processing of the new LMIA application will continue.

    III. New assessment requirements for applying for LMIA employers

    This amendment improves ESDC's ability to identify potential misconduct when evaluating employers' LMIA applications. This applies to employers who have not hired foreign workers under the TFWP for the past six years.
    Likewise, for employers who frequently recruit through TFWP, ESDC and IRCC will also have reasons to review them to identify the possibility of employer violations.
    At the same time, the ESDC review also requires that the employer evaluate whether the employer has:

    • makes reasonable efforts to provide a workplace without abuse; and whether

    • is eligible for participation in the program or an affiliate of the employer with unpaid administrative fines.

      
      

  . The salary level of foreign workers will be used as a requirement for approving LMIA or not

  ESDC After receiving the employer's LMIA request, the following two factors will be considered independently:

  • Whether the salary listed in the employment letter is consistent with the average current salary of the same position in the occupation

  • Whether hiring foreign workers may have an adverse impact on the resolution of any labor dispute or the employment of any person involved in the dispute.

  These two factors will determine the evaluation based on the considerations of approval and rejection, while the remaining factors will continue to be part of the overall evaluation.
  
  Regardless of the evaluation of the other five factors, these two factors are basic requirements. Employers must meet these requirements to obtain LMIA approval.

  Last part:

  Recruiting overseas employees must comply with the laws of the province or region

  Some provinces in Canada have clear requirements that employers must register in the province before recruiting and hiring temporary foreign workers. In addition, some jurisdictions require recruiters to obtain mandatory permission.
  
  In the new amendment, employers must comply with employment and recruitment laws in all provinces and territories, including laws related to provinces or territories where temporary foreign workers work.

  Abolished the Immigration and Refugee Protection Ordinance regarding Employer Compliance Review

  Since 2019, the Ministry of Employment and Social Development Canada and the Ministry of Immigration, Refugees and Citizenship Canada have not used an employer compliance review agency. This is because inspection agencies are more effective in detecting employer violations. The amendment formally abolishes employer compliance review regulations and aligns the Immigration and Refugee Protection Ordinance with current practices.