Canada: Regulatory Amendments Enhance Foreign Workers’ Rights
August 29, 2022
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At a Glance
- Amendments to the Immigration and Refugee Protection Regulations in Canada will take effect on September 26, 2022, and will impact both the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) streams.
- The amendments are aimed at improving employer compliance and protecting foreign workers’ rights by remedying existing gaps in worker protections, ensuring adequate access to rights and employment information, ensuring better access to healthcare services, and improving workplace conditions for foreign workers.
- The changes will place more responsibilities on employers to protect foreign workers’ labor rights.
The situation
Immigration, Refugees and Citizenship Canada has announced amendments to the Immigration and Refugee Protection Regulations for both the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP), which will take effect on September 26, 2022.
A closer look
Details of the new amendments are as follows:
Part 1. Enhanced Worker Protections
| 1.1 Providing information to temporary foreign workers about their rights in Canada |
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IMP and TFWP |
| 1.2 Providing an employment agreement to the temporary foreign worker |
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IMP and TFWP |
| 1.3 Amending the definition of “abuse” to include “reprisal” against temporary foreign workers | This change expands the definition of “abuse” in the workplace for both programs. | IMP and TFWP |
| 1.4 Prohibiting employers from charging or recovering fees for the provision of services in relation to an LMIA, Employer Compliance fee and fees related to recruitment and requiring that employers ensure that any recruiters they use do not charge or recover these fees |
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IMP and TFWP |
| 1.5 Protecting the health and safety of temporary foreign workers |
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IMP and TFWP |
Part 2. Heightened Employer Integrity
| 2.1 Requiring documents from third parties | Where in line with the Privacy Act, ESDC and IRCC will now have the authority to require, without the consent of the employer and/or worker, that any third party (including banks and payroll companies) provides any document in their possession that relates to employer compliance with regulatory conditions. | IMP and TFWP |
| 2.2 Suspend processing of a request for an LMIA so long as there is reason to suspect employer non-compliance with certain regulatory conditions and serious risk to health or safety of foreign national | ESDC will have the authority to suspend the processing of an LMIA request for an employer who is suspected to not be in compliance with one of the following conditions: 1) actively engaged in the business relating to the offer of employment, 2) provide the foreign national with working conditions that are substantially the same as but not less favorable than what was set out in the offer, 3) provide an abuse-free workplace, and 4) comply with COVID-19 conditions. | TFWP |
| 2.3 New assessment requirements for employers applying for an LMIA | For employers who have not employed a worker under the TFWP in the past six years, ESDC will confirm if, within the last two years, the employer made reasonable efforts to provide an abuse-free workplace and was not an affiliate of an ineligible employer under the program. | TFWP |
| 2.4 Make wage and labour dispute factors stand-alone LMIA requirements | ESDC will now assess whether a worker has been offered the prevailing wage for the occupation and whether the worker’s employment is likely to adversely affect the settlement of any labour dispute in progress under a pass/fail system. Failure to pass both criteria will result in an LMIA refusal. | TFWP |
| 2.5 Collecting information regarding compliance with IMP conditions to ensure program integrity | For employers using the IMP, ESDC will have the authority to collect personal information on employers and temporary foreign workers related to an employer’s compliance with the conditions of the IMP; this information will also be shared with inspection officials. | IMP |
Background
- Impacted immigration programs. The amendments impact the employer compliance regimes of both the TFWP and the IMP. The TFWP allows employers in Canada to hire a foreign worker when no Canadians or permanent residents are available. The IMP allows employers in Canada to hire a foreign worker in support of advancing Canada’s cultural and economic interests and competitive advantage.
- Regulatory background. The government had introduced similar amendments to the Immigration and Refugee Protection Regulations in August 2021 to rectify vulnerabilities of foreign workers exposed by the COVID-19 pandemic. The forthcoming amendments go a step further with additional details, to further enhance foreign worker protections.
- Reason for the amendments. The amendments are aimed at improving employer compliance and protecting foreign workers’ rights by remedying existing gaps in worker protections, ensuring adequate access to rights and employment information, ensuring better access to healthcare services, and improving workplace conditions for foreign workers.
Impact on employers
Employers are advised to familiarize themselves with their responsibilities and compliance obligations under both the TFWP and IMP streams. Fragomen can assist employers with navigating their rights and obligations to ensure compliance before and during immigration processing and during foreign workers’ employment in Canada.
Looking ahead
Canada will likely continue to implement programs and regulations demonstrating its continued commitment to expanding immigration and supporting foreign workers. Fragomen will report on relevant updates.
This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].
