This is my long-form comment about the amendments to the Labour Standards Act.
Background
Generally, temporary foreign workers are only allowed to take jobs inCanadawhen there are no Canadians or permanent residents available. Sometimes they are vulnerable and prone to abuse and disadvantage. Their authorization to stay in Canada is usually tied to their employer. They may be reluctant to speak out against unsafe or illegal working conditions for fear of losing their job and being required to leaveCanada. There is evidence of abuse and difficult working conditions and employers who operate with impunity.
http://www.nsi-ins.ca/English/pdf/migrantworkers_eng_web.pdf
Some temporary foreign workers use agents (headhunters, consultants, etc) to find work inCanada. There are unethical agents who charge high or illegal fees or make false promises for jobs. In worst cases, they commit fraud. As in: no actual job in Canada for the worker who then owes thousands of dollars to a agent for getting here. Many of these unscrupulous agents operate overseas.
So it is good news that the province is attempting to create a regulatory scheme that is intended to eliminate these abuses.
However, after reviewing the Discussion Paper and the amendments to the Labour Standards Act, I have some concerns. Here are the areas I am most concerned about:
1. Who is excluded from the new law?
2. The rules already exist
3. The burden on employers to register and pay all fees
4. The requirement for immigration lawyers and consultants to be licensed as “recruiters” in order to assist employers
1. Who is excluded?
Everyone but Labour Market Opinion (LMO)-based workers are excluded from this new law. I am not aware of the statistics, but my guess is that LMO-based work permits are less than 50% of work permits. What this means is the law will not apply to a large number of temporary foreign workers. Unlicensed agents will continue to be able to operate and take advantage of those excluded groups.
This, in my opinion, is one of the weakest aspects of the new law. The rules should either apply to everyone or be precise according to skill level, just like the low-skilled worker categories Service Canada already has in place:
http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lowskill.shtml
The reason the new law applies only to LMO-based permits is outlined in the Discussion Paper. With respect, I do not agree with that rationale.
First, LMO-based work permits create much more government involvement than most other work permits. For other types of work permits, Service Canada is generally not involved. There is far less oversight for those permits than for LMO-based work permits.
Second, there are many non-LMO work permits that can involve potentially vulnerable people. Under the new rules, any treaty-based work permit is excluded. Any “work without a permit” work permit (I realize this is oxymoronic, but that is an actual category) is excluded. Intra-company transferees are excluded. However, there are times when a temporary foreign worker jumps categories. For example, if you max-out your time as an Intra Company Transferee you may need a LMO. It is not reasonable to expect that you are more vulnerable 3 years into your time in Canada than you were when you first arrived. In addition, some permits allow you to work for one year without a LMO and then to extend/renew, you need to get one. By then, you have been working for the same employer for a year.
A better way to streamline this law would be to have it apply to employer-specific work permits for Skill Levels C and D and any of the other low-skill programs such as Seasonal Agriculture Workers and Live-in Caregivers. This would be consistent with Service Canada’s rules about temporary foreign workers in those categories.
2. The rules already exist
Currently, for an employer to obtain a LMO, they have to promise compliance with all applicable provincial and federal laws including labour standards. Service Canada has a department dedicated to ensuring compliance.
http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/pamphlet/ecr_pamphlet.shtml
How the current rules are enforced is not known. Last time I checked, there were no employers listed who had been barred from hiring temporary foreign workers due to failure to comply with Service Canada’s rules.
For a third party (recruiter, lawyer) to be involved, they have to be authorized to do that type of work:
http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=emp5520&ln=eng
The current Employer Declaration (for non-LMO permits), Third Party and LMO application forms make the employer’s responsibilities clear and attempt to make the involvement of third party representatives as transparent as possible. The bottom line is that Service Canada already has enough employer and third party representative information to enforce the rules and ensure compliance.
Enforcement is always the problem. Sometimes, an unscrupulous consultant or agent is involved but not named on the forms. These are sometimes called “ghost consultants” because they are involved but not visible to the government department tasked with ensuring compliance. The provincial legislation is presumably meant to further thwart the ghost consultant industry. If it works, great. But regardless of federal or provincial rules, ghost consultants and unscrupulous agents will continue to operate overseas.
If (federal) rules and tools already exist to limit an employer or recruiter’s ability to take advantage of a temporary foreign worker, then why the new (provincial) legislation?
3. Burden on Employers
Creating this new layer of compliance places a burden on any company wanting to bring in temporary foreign workers. Under the new rules any employer wanting to obtain a Labour Market Opinion in Nova Scotia in order to hire a temporary foreign worker will have to be registered with the provincial regulator. Details of the registration process are vague at this point, but we know it will include paying a fee, and submitting company, workforce and financial information.
Furthermore, now employers will have to ensure compliance with two sets of federal laws (HRSDC and CIC) and one additional set of provincial laws. Given the complexity of these rules, it is practically mandatory to use an immigration lawyer or consultant for the paperwork. Presumably, small businesses will be hit the hardest as they are the ones with the narrower margins and smaller budgets for administrative and legal matters. One would expect that this will produce a chilling effect and a business -especially a small business- could be less likely to want to hire temporary foreign workers in order to avoid this red tape and expense.
Under the new law, employers must pay all recruitment costs and expenses to hire a temporary foreign worker. However, we often see situations where someone is here as a visitor and wants to stay. They find an employer willing to hire them, usually at a small business in a medium-skill level, such as a trade. The small business cannot bear the burden of the fees associated with the LMO and work permit application and as an incentive to hiring that person, the employee offers to pay those costs. This is illegal under the new law and there does not appear to give any option to waive this.
Why do employers need to register, especially if they are complying with Service Canada’s LMO rules? If they must register, there should be minimal cost to the employer and an effort should be made to make registration and renewal as simple as possible. Employers should only be required to disclose very general information. If the new rules are limited only to LMO-based workers, all specific information required of an employer will be provided on the LMO application anyway. Consideration should be made to allow the possibility of a temporary foreign worker waiving the rules prohibiting them from paying fees in limited circumstances and perhaps only in certain higher skill levels.
4. Professional Regulatory Bodies
I am limiting my comments to some general concerns as this is an area where it would be more appropriate for our Bar Society to provide specific input.
Some aspects of the new rules, including the licensing framework are problematic for lawyers and consultants who are bound by their own sets of professional and ethical rules and governance. There is potential for the two sets of rules to collide. By abiding by one, we could be breaking the other. My knowledge is limited to rules governing lawyers as opposed to immigration consultants who are not lawyers and who are bound by a different set of rules.
Many lawyers will have a philosophical problem with being considered a “recruiter”. I don’t feel that is what I am doing in my practice, any more than a real estate lawyer should be considered a “realtor” for providing legal advice and services in a property transaction. But under the new rules, much of what immigration lawyers do will fall under the wide definition of “recruitment”. We will need to be licensed in order to carry on our immigration practice and provide legal services as usual. However, in being licensed and regulated by the Department of Labour and Advanced Education, lawyers are going to be required to follow a new set of rules.
Another issue lawyers may have with this legislation is putting them in the same category as immigration consultants in needing to go through the licensing process in the first place. While not completely absent from the legal profession, the bigger issues with the immigration consultant industry (unethical practices and a regulatory system that is somewhat lax or lacking) are distinct from the Canadian legal profession. And yet, lawyers keep getting grouped in the same category as immigration consultants. In reality, we provide a much narrower and more technical service than most consultants who can be involved in anything from form-filling to helping people with settlement such as finding housing.
Consideration should be made to exempting lawyers from having to become licensees.
If lawyers are required to be licensed, the licensing/renewal process should not:
– require a lawyer to breach solicitor-client privilege (i.e. by disclosing confidential information about a client to the new licensing body);
– require a lawyer to provide financial or trust account information about specific clients; or
– conflict in any way with the rules of professional conduct imposed on lawyers by their governing body.
At minimum, the new rules should be interpreted and enforced in a manner that is consistent with the professional regulations licensees are bound by.
Finally, it is not clear from the Discussion Paper where these new rules leave legitimate employment agencies or headhunters. They cannot be licensed recruiters because they are not lawyers or immigration consultants. Other jurisdictions (i.e.Manitoba) have separate registration categories for those agencies. Hopefully those groups will provide input in this process.
Conclusion
In the last couple of years, the Federal government has been reducing options for permanent residence. In 2011, several categories were shut down and other categories had quotas reduced significantly. The thinking has been that temporary foreign worker programs would become more important.
The Temporary Foreign Worker program is about to become more complex than ever. It would be a shame if this made businesses less competitive because of the inability to bring certain skill-sets here or reduced the number of immigrants to the province.
The Worker Recruitment and Protection Act is intended to rid the province of unscrupulous recruitment practices and protect vulnerable temporary foreign workers. By doing so, the new rules will cast a wide net and cause upheaval, expense and inconvenience to employers, lawyers, consultants and agencies. I, for one, am ok with the upheaval if it the law does what it is supposed to.