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Smithson: Bolstering protection in Canada

Temporary foreign workers in Canada have had numerous employment standards and administrative requirements in place for their protection.

Effective April 1, 2011, a range of new safeguards came into effect.

At a high level, the new safeguards comprise a deeper assessment of the genuineness of the job offer from the Canadian employer, a two-year period of ineligibility from hiring temporary foreign workers for employers who fail to meet their commitments, and a four-year limit on the length of time some temporary foreign workers may work here.

Job offers to temporary foreign workers will now be assessed taking into account the genuineness of the job offer, the consistency of the job offer with the terms of any federal-provincial/territorial agreement, the history of the employer in hiring temporary foreign workers over the previous two years, and the length of time that the foreign national being hired has worked in Canada.

The assessment of genuineness will look specifically at whether the employer is actively engaged in the business, whether the job offer is consistent with the needs of the employer, whether the employer is reasonably able to fulfill the terms of the job offer, and whether the employer has previously complied with applicable laws regulating employment in the jurisdiction where the worker will be employed.

For live-in caregivers, the assessment of genuineness will also consider whether the caregiver will be residing in a private household in Canada and providing child care, senior home support care or care of a disabled person in that household, whether the employer will provide adequately furnished and private accommodations in the household, and whether the employer has sufficient financial resources to pay the caregiver the wages offered.

Employers who have failed to meet commitments as promised in past job offers and who have failed to provide reasonable justification or to rectify the situation by providing appropriate compensation to the former employee may face the refusal of work permit applications or being deemed ineligible to hire foreign workers for two years and having their name displayed on a government web site.

Many temporary foreign workers will now be subject to a four-year ‘cumulative duration’ limit on the length of time they may work in Canada.

This regulation is not retroactive—the clock starts ticking on April 1, 2011, for all temporary foreign workers, regardless of how long they have already been in Canada.

The four-year limit may not, however, include periods during which the foreign worker was on an extended unpaid leave, on parental leave, or was unemployed.

After a foreign worker has reached his or her four year cumulative duration limit, he or she will not be granted another work permit in Canada for an additional four years (after that time has elapsed, the worker will again be permitted to work here).

Numerous categories of foreign workers will be exempt from the four year cumulative duration regulation, so federal web sites should be consulted for the excluded categories.

Temporary foreign workers have access to the same remedial mechanisms as Canadians when it comes to labour and employment standards.

Provinces and territories have primary responsibility for enforcement of labour standards and have offices that can assist all workers regarding fair pay, hours of work, rest periods and general working conditions.

Workers should contact the appropriate authority in the province or territory they work in if they have concerns about their working conditions.

Ultimately, the protection of the rights and entitlements of vulnerable foreigner workers in Canada might be better viewed as our collective responsibility so we should all be on the lookout for possible abuses.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.

 

www.smithsonlaw.ca

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