The temporary foreign worker community has been a historically vulnerable segment of the Canadian population. To address concerns around the protection of temporary foreign workers, the Immigration and Refugee Protection Regulations (the Regulations) were amended to, in part, further protect temporary foreign workers and ensure the integrity of the Temporary Foreign Worker Program and the International Mobility Program.
This could be partly due to the treatment of foreign workers, specifically Leon Logan. Last month we explained that Mr. Logan, a temporary foreign worker from Jamacia, was awarded compensation from the Human Rights Tribunal of Ontario for discriminatory practices in investigating a sexual assault that occurred in the fall of 2013.
Information about rights
Temporary foreign workers are entitled to be informed about their rights in Canada. The Regulations will now require employers to provide foreign workers with up-to-date information about their rights in Canada. This information must be provided in the workers’ preference of French or English and before the workers’ first day of work. Employers must also make this information available to foreign workers throughout their employment. The rights of temporary foreign workers and workers under the International Mobility Program can be found online.
An employer hiring under the Temporary Foreign Worker Program must provide their temporary foreign workers with a signed copy of an employment agreement on or before the first day of work. Similarly, employers hiring under the International Mobility Program must attest, when they submit an offer through the government portal, that they have already provided the temporary foreign worker with an employment agreement.
In both programs, the employment agreement must match the offer of employment that was presented to the foreign worker. This means that the agreement must provide for employment in the same occupation, with the same wages, and with the same working conditions as those set out in the offer of employment. The agreement must be drafted in the foreign workers’ choice of French or English and signed by the employer and the foreign worker.
Reprisal is abuse
Employers were previously obligated to make reasonable efforts to ensure the workplace is free of abuse towards temporary foreign workers. The amendments add “reprisal” to the definition of abuse.
Prohibit employers from recovering fees
Employers are no longer allowed to charge temporary foreign workers for their recruitment. The Regulations also now prohibit the employer from recovering fees for the provision of services relating to their Labour Market Impact Assessment, employer compliance and related to recruitment.
Health of workers
Employers are now obligated to reasonably provide access to health care services when a temporary foreign worker is injured or ill. Employers are also required to obtain and pay for private health insurance that covers emergency medical care during the period for which the temporary foreign worker is not covered by their provincial or territorial health insurance system, such as OHIP.
The integrity of the programs
Compliance with the regulations
To support compliance, the relevant government agencies have been given the authority to require that any third party provide any document in their possession that relates to the employer’s compliance with the regulatory scheme.
The government can also suspend the processing of a Labour Market Impact Assessment request if there is a reason to suspect that the employer is non-compliant with enumerated conditions under the Regulations.
The government is also now required to assess whether the employer made reasonable efforts to provide a workplace free of abuse and was not an affiliate of an employer who is ineligible for the program or has an unpaid monetary penalty.
Wage and labour dispute factors stand alone
Under the Regulations, seven factors should be given equal consideration as part of an overall assessment to determine whether foreign workers' employment would likely have a neutral or positive effect on the Canadian labour market. Now, two factors, whether wages are consistent with the prevailing wage rate for the occupation and whether the foreign worker's employment is likely to adversely affect the settlement of any labour dispute or the employment of any person involved in the dispute, are individually required to be passed.
Collection of information
The government’s authority to collect personal information on employers and temporary foreign workers to verify the employer’s compliance with the Regulations was confirmed in the amendments.
The amendments to the Regulations have increased the standards to which employers are held relating to temporary foreign workers. There can be serious consequences for employers who are non-compliant with the Regulations, such as fines or the prohibition from participating in the Temporary Foreign Worker Program or International Mobility Program. Please contact Walker Law if you require assistance in a lawsuit regarding employment litigation generally.