Proposed change to afford certain temporary foreign workers with increased mobility

July 05, 2019 − by Jonathan Mor − in Employment Standards − Comments Off on Proposed change to afford certain temporary foreign workers with increased mobility

Immigration, Refugees and
Citizenship Canada (IRCC), and Employment and Social Development Canada (ESDC),
have proposed an amendment to the Immigration
and Refugee Protection Regulations
(IRPR), which would provide increased
employment mobility to certain foreign workers under the Temporary Foreign
Worker Program (TFWP). The proposed amendment was published on June 22, 2019, in
Part I, Volume 153, Number 25 of the Canada Gazette.

Under the TFWP, to hire a foreign
worker, employers must obtain an approved Labour Market Impact Assessment
(LMIA) from ESDC, pursuant to which IRCC issues a work permit. The current
program only authorizes the issuance of an employer-specific “closed” work
permit. Foreign workers are, therefore, completely dependent on the employer
noted on the work permit. Should a foreign worker wish to leave the current
employer to take up new employment, a new LMIA and work permit would currently
be required. This is a costly process, requiring a great deal of time and
effort. Moreover, the costs and effort would primarily be required on the part
of the new employer, which only makes finding such an opportunity more

As a result of the above, the TFWP
in its current form, grants a great deal of power to employers. As many foreign
workers are unlikely to find another employer willing to navigate the process
of obtaining a new LMIA, these workers have little option but to endure difficult
employment conditions. Considerations such as these have prompted IRCC and ESDC
to propose the change.

The proposed amendment would
introduce LMIAs and work permits that are occupation-specific instead of
employer-specific. Occupations in Canada are defined and organized in
accordance with the National
Occupational Classification
(NOC), which assigns each occupation a four-digit
NOC code. Pursuant to the proposed amendment, the new LMIAs (and the resulting
work permits) would instead be specific to a particular NOC code, and not to a
specified employer. This would afford foreign workers increased employment
mobility by allowing them to change employers without first obtaining a new
LMIA or work permit, so long as they remained in the same occupation. This
would remove the most significant barrier to finding suitable alternative
employment, as new employers would not be burdened with the cost, time and
efforts required to support a new LMIA application. With this barrier removed,
the effect would be to restore some power to foreign workers, allowing them increased
opportunity to leave undesirable employment situations.

Notably, the proposed change to
the TFWP would not affect all streams of the LMIA. Instead, it is intended to
target two LMIA streams that are used to employ the most vulnerable of
temporary foreign workers; the Low-wage Stream and the Primary Agriculture

The High- or Low-wage Streams of
the LMIA are defined by reference to a provincial
or territorial median hourly wage
, as published by ESDC. By way of example,
the Ontario median hourly wage is currently CA$22.50. Therefore, positions in
Ontario that offer a wage at or above the median hourly wage are processed
under the High-wage stream, while positions offering a wage lower than this are
processed under the Low-wage Stream.

As its name suggests, the Primary
Agriculture Stream is used to employ foreign workers on a farm, nursery or
greenhouse. Such employment will involve one of the following: the operation of
agricultural machinery; obtaining raw animal products for market; or the
processing of raw products, the planting, care, harvesting or preparation of
crops, trees, sod or other plants for market.

The two above LMIA streams are
primarily used to employ low-skilled foreign workers, as these positions
require little-to-no education and provide workers with minimal wages. As a
result, the proposed amendment to the IRPR should provide increased employment
mobility, and therefore, power in the employer-employee relationship, to the
most vulnerable of Canada’s temporary foreign workers.

It remains to be seen whether IRCC
and ESDC will move forward with the amendment, and whether there is any
appetite to provide similar changes for the LMIA streams used for more
highly-skilled foreign workers.

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