CANADA – Recent Changes to Labour Market Opinion’s
On December 31, 2013, amendments made to the Immigration and Refugee Protection Regulations (IRPR) and new Ministerial Instructions issued by the Minister of Employment and Social Development Canada (ESDC) went into effect. These changes have been developed in order to reinforce the integrity of the Temporary Foreign Worker Program (TFWP).
Employers who plan to apply for a Labour Market Opinion (LMO) should be aware of the new conditions to which they must comply.
Amendments to the IRPR require employers to:
- Keep any document that relates to compliance with the conditions set out in IRPR for a period of six (6) years, beginning on the first day of the period of employment for which the work permit is issued to the foreign worker. During this period, the employer must be able to prove that any information they provided on the LMO application was accurate;
- Make reasonable efforts to maintain an abuse-free work environment and;
- Hire or train (or make reasonable efforts to hire or train) Canadians or permanent residents, if that was one of the reasons that led to the issuance of the work permit.
- Employers will have to complete an updated LMO application form.
ESDC/Service Canada will be permitted to conduct inspections in order to verify that employers are complying with the conditions stated in IRPR during a period of six (6) years, beginning on the first day of the period of employment for which the work permit is issued to the foreign worker. To confirm compliance with IRPR’s conditions, ESDC/Service Canada will have the authority to:
- Require from employers documents that relate to compliance;
- Conduct on-site inspections without a warrant. (Excludes private dwellings). In the majority of cases, an advance notice will be given to the employer and;
- Interview foreign workers or Canadian employees (by consent only).
Employers who have failed to comply with the conditions stated in the IRPR will be given the opportunity to provide a justification and to take corrective action before a determination of non-compliance is issued.
If a determination of non-compliance is made, employers will:
- Not be allowed to hire foreign workers for two (2) years, and will have their name, address, and period of ineligibility published on a public ban list;
- Be issued negative LMOs on any pending LMO applications and/or;
- Face the possibility of having previously-issued LMOs revoked.
The issuance of the new Ministerial Instructions may result in ESDC suspending or revoking LMOs, or refusing to process LMO applications, under identified public policy considerations. Employers who face a suspension or revocation of their LMOs will be contacted and given the chance to respond. ESDC/Service Canada may also refuse to process LMO applications based on the Ministerial Instructions for selected sectors, regions, or occupational groups. Any information about a decision made by the government regarding the refusal to process LMO applications for any specified groups will be published on ESDC’s website.
Employers must pay foreign workers for each occupation according to the prevailing wages, including yearly increases, as published by the government. Previously, employers were only required to follow the initial prevailing wage upon hiring, but now they must also comply with any annual increases.
The Canadian government plans to oversee employers that use recruiters in a more strict fashion. Foreign workers are not permitted to pay employers, their recruiters, or any third parties for a job offer, and employers must comply with all new provincial and federal laws regarding recruiters.
Please note that this is general information only and not intended as advice on a specific matter. Please contact Fakhoury Global Immigration directly with questions exclusive to your situation.