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Hiring temporary foreign workers: The details | Colin Singer

Wednesday, April 28, 2021 @ 8:26 AM | By Colin Singer


Colin Singer %>
Colin Singer
Further to our series on hiring temporary foreign workers, as part of the Temporary Foreign Workers Program (TFWP) requirements employers must conduct recruitment efforts to hire Canadians and permanent residents before offering a job to a temporary foreign worker.

Due to the higher unemployment rates during the COVID-19 pandemic, Ottawa upped its recruitment and advertisement requirements on June 15 last year to ensure Canadians and permanent residents continue to be considered first for available jobs.

This means:

  • any ads posted before March 15, 2020, may need to be reposted for an additional two consecutive weeks.
  • employers must conduct at least three different recruitment activities, including: advertising on the government of Canada’s Job Bank or submitting a written rationale and explanation for the alternative method, and; conducting at least two additional methods of recruitment, with at least one national in scope, that are consistent with the occupation.

Employers also have to use the Job Match service in their recruitment for positions advertised on Job Bank in the three months prior to the Labour Market Impact Assessment (LMIA). That service allows employers to see anonymous profiles of registered job seekers whose skills match those of the job.

When seeking to fill a high-wage position, employers are required to invite all job seekers who rated four out of a possible five stars under the Job Match feature within the first 30 days of the posting to apply for the job.

Other acceptable methods of recruitment for a job advertisement under the TFWP include:

  • general employment websites;
  • online classified websites;
  • specialized websites which are dedicated to specific occupational profiles;
  • local, regional and national newspapers or newsletters;
  • local stores, places of worship and community resource centres;
  • local, regional and provincial or territorial employment centres;
  • magazines and journals;
  • participation at job fairs;
  • partnering with training institutions or offering internships;
  • professional recruitment agencies;
  • consultations with unions for available labour;
  • advertising through professional associations; and
  • recruitment within the company.

Job ads must be detailed

If the two additional methods of recruitment are online, they must each have unique value and reach different audiences. The advertising for the job must be for be for a minimum of four weeks in the three months prior to the LMIA.

All job advertisements under the TFWP must include:

  • the company’s operating name;
  • business address;
  • title of the position;
  • job duties;
  • terms of employment;
  • language of work;
  • wage;
  • a wage range can be used for the purposes of complying with the advertisements but the minimum wage in the range must meet prevailing wage;
  • benefits package offered;
  • location of work;
  • contact information, including telephone number, cell phone number, e-mail address, fax number, or mailing address; and
  • skills requirements.

Employers can determine the prevailing wage by choosing the higher of either the median wage on Job Bank or a wage that is within the wage range the employer is paying current employees hired for the same job and work location, and with the same skills and years of experience.

That can be done by going to the “compare wages” feature on Job Bank and inserting the appropriate job title or NOC code in the “Job search” field. In certain circumstances, industry-specific wage rates have been identified and are considered as the prevailing wage rate during the assessment of the application.

These sectors have unique wage requirements:

  • pharmacy students (excluding the province of Quebec);
  • pharmacy interns (excluding the province of Quebec);
  • program leaders, instructors (recreation, sport and fitness);
  • camp counsellors (Ontario);
  • snow sport instructors (British Columbia, Alberta, Saskatchewan and Manitoba);
  • Cold Lake;
  • international medical graduates in Quebec;
  • fee for service physicians, and;
  • the maritime sector.

Hiring a temporary foreign worker for a job in the province of Quebec requires that employers consult the wage table provided by the Ministère de l’Immigration, de la Francisation et de l’Intégration (MIFI).

Under the TFWP, the employer also has to prove that they have made an effort to recruit qualified Canadians and permanent residents by providing documents to prove they have advertised the position and undertaken those recruitment efforts.

These can include:

  • a copy of the advertisement and information to support where, when and for how long the position was advertised;
  • proof that the print media and websites were used to advertise targeted an audience that has the appropriate education, professional experience or skill level required for the occupation; and
  • proof of other recruitment activities.

English or French are the only languages which can be identified as job requirements in the LMIA application and job advertisement. If another language is essential for the job, the employer must provide justification for it on the application.

If there is no language required for the job, the employer must provide more details on the application, including:

  • how the foreign national will perform job duties in an effective and safe manner without the ability to communicate in any language: and
  • what reasonable measures are in place to ensure the health and safety of everyone in the workplace.

Global Talent Stream

In most cases, the process to bring in a temporary foreign worker can be time-consuming and sometimes take up to six months but there are occupations for which Ottawa has fast-tracked the process under the TFWP. These are the occupations that fall under the Global Talent Stream (GTS).

Through this stream, the processing of Canadian visa applications is cut down to two weeks. Every employer who is thinking of bringing in a skilled worker should check to see if the position to be filled falls under the GTS.  

Proceeding under the GTS can not only help the temporary foreign worker get into Canada sooner but can also potentially help him or her later become a permanent resident — if he or she chooses to do so — under the Express Entry system. That’s because temporary foreign workers who come to Canada under the GTS are typically able to score higher on the point system used by Express Entry.

Quebec, academics, agricultural workers, caregivers

Among other aspects an employer will want to consider is whether the temporary foreign worker is coming to fill an academic, agricultural, or caregiver position — or coming for a job in Quebec. There are special hiring criteria that have been developed by Employment and Social Development Canada (ESDC)/Service Canada and Immigration, Refugees and Citizenship Canada (IRCC) with universities, degree-granting colleges and unions representing Canadian academics.  

If a college or university wants to hire a foreign worker for an occupation where the majority of the job duties are other than teaching or research — in other words management, financial or administrative — then the regular ESDC process for hiring foreign workers applies. But the Immigration and Refugee Protection Act (IRPA) allows universities and colleges in Canada to hire some types of foreign academics without requiring an LMIA or the need for the foreign academic to get a work permit.

Agricultural positions to be filled by temporary foreign workers also require a bit more attention. In addition to the high and low-wage streams, employers must also consider whether these workers are coming from Mexico or participating Caribbean countries for the Seasonal Agricultural Worker Program which requires that the commodity being produced be listed on the National Commodities List (NCL).

When the commodity is not listed on the NCL, the employer should be looking at the Agricultural Stream.

Families who want to hire foreign caregivers to work full time in their homes to care for children or adults with medical needs must keep in mind that since June 18, 2019, IRCC will not issue a work permit for a foreign national for any caregiver position in Canada outside of Quebec unless that foreign national is already in Canada with a valid work or study permit.

Employers looking to hire a temporary foreign worker in Quebec should note the francophone province has its own processes. These special provisions require that all LMIA applications for hiring in Quebec be submitted simultaneously to Service Canada and MIFI and that all LMIA applications be submitted in French, except for those applications for in-home caregiver positions.

Also, effective since June 10 last year — during the COVID-19 pandemic — Quebec developed its own separate list of occupations deemed to be high priorities.

All documents employers have regarding the employment of a temporary worker must be kept for six years from the date of issuance of the work permit.

Penalties for non-compliance with the rules of the program can be as simple as a warning letter or as onerous as monetary penalties of $500 to $100,000 per violation to a maximum of $1 million per year. A business found to be in non-compliance can also be banned, either temporarily or permanently from hiring through the TFWP or the International Mobility Program (IMP), and have its name added to the public list of employers who have been non-compliant.

This is the third of a three-part series. Read part one: Hiring temporary foreign workers: International mobility; part two: Hiring temporary foreign workers: Employer responsibilities.

Colin R. Singer is immigration counsel for www.immigration.ca. He can be reached via Twitter: @immigrationca.

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