Canada: Regulatory Amendments Enhance Foreign Workers’ Rights

August 29, 2022

insight-news-default

Country / Territory

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.

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
  • For both programs, on or before the first day of work, and throughout the period of employment, an employer must provide to the employee a copy of the most recent information about their rights in Canada, in the worker’s chose official language of Canada (English or French).
 IMP and TFWP
1.2 Providing an employment agreement to the temporary foreign worker
  • For employers using the TFWP, they must commit to and provide the temporary foreign worker with a signed copy of their employment agreement on or before the first day of work.
  • For employers using the IMP, they must attest (via the Employer Portal) that they have already provided the temporary foreign worker with an employment agreement.
  • Under both programs, the employment agreement must be in either English or French, be signed by both employer and employee, and provide for employment in the same occupation, with the same wages and working conditions as those set out in the offer of employment.
 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
  • For employers using the TFWP, they must confirm and commit that neither they nor any third party they have used have or will, directly or indirectly, charge or recover fees from a foreign national in relation to the LMIA and their recruitment.
  • For employers using the IMP, employers must attest (on the Employer Portal), that neither they nor any third party they have used have charged or recovered any fees related to the employer compliance fee or recruitment.
 IMP and TFWP
1.5 Protecting the health and safety of temporary foreign workers

  • Employers must make reasonable efforts to provide access to health care services when the temporary foreign worker is injured or becomes ill at the workplace for both programs.

  • For employers using the TFWP, employers must obtain and pay for private health insurance that covers emergency medical care for the temporary foreign worker for any time during the period of employment for which the foreign worker is not covered by provincial or territorial healthcare.

 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
  • 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.

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.

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].        

Fragomen.com home
Search Fragomen.com
Important Updates
Important Updates
Subscribe