Changes cause headaches for foreign worker application

Employer’s application to Temporary Foreign Worker Program denied after interpretations of the 2014 changes made its application incomplete
By Sergio Karas
|Canadian Employment Law Today|Last Updated: 07/06/2016

Recent changes to the Temporary Foreign Worker Program (TFWP) have caused considerable difficulties to employers looking to hire temporary foreign workers. In June 2014, the federal government implemented significant modifications to the program and replaced Labour Market Opinions (LMOs) with a more complex regime of Labour Market Impact Assessments (LMIAs). The changes include a strict interpretation of advertising and compliance guidelines that employers must follow in order to avail themselves of the TFWP, increased scrutiny on reasonable efforts to hire Canadians, monitoring of wages and working conditions, and a consideration of proposed transition plans to eventually replace foreign workers with Canadians or permanent residents. The new TFWP regime has been the subject of recent litigation dealing with the interpretation of these guidelines.

The Federal Court has been called upon to decide the issue of when and under what conditions a Canadian employer can engage a temporary foreign worker for a vacant position. Specifically, when a labour market shortage exists in that position and the wages and working conditions meet the minimum standard, what reasonable efforts must be made by an employer to find a Canadian?

In Ahmed v. Canada (Minister of Public Safety and Emergency Preparedness), the employer applicant, acting as manager for the company, sought to hire a temporary foreign worker in the position of marketing consultant. The employer submitted an application for an LMO to the Department of Employment and Social Development Canada (ESDC), on June 19, 2014. The employer was advised by the TFWP on July 11 that the application was rejected as an incorrect form was used, some fields were not completed, and the application lacked required documents. As the government implemented significant changes to the TFWP on June 20, 2014, replacing the LMO with the LMIA, the employer submitted a second application in July. However, shortly after, a TFWP officer informed them by email that their second application was rejected because it was incomplete and the required employer transition plan was apparently missing. The employer filed a subsequent LMIA application in October 2014, together with the employer’s representative’s submission advising the TFWP that the employer was publishing another job bank advertisement with a modified wage. A program officer conducted two telephone interviews with the employer and eventually refused the application, on the grounds that it did not demonstrate that the employer had made sufficient efforts to hire Canadians for the position and the employment of the foreign national was not likely to result in the filling of a labour shortage. Further, the officer found there was no demonstrable shortage of workers in the occupation for the geographical region indicated in the application, apparently relying on other evidence of research not disclosed to the applicant.