Law Times

Law TiMes • March 9, 2009 FOCUS PAGE 11 fore companies can hire tempo- rary foreign workers, and that means extra legal complications for business, lawyers say. "Lawyers are all happy about it because it's a lot more work and it's a lot more complicated," says Naseem Malik, counsel in the labour and employment group of McCarthy Tétrault LLP in Toronto who practises business immigration law. The changes, enacted in De- cember by Service Canada, rein- force requirements that employ- ers actively advertise positions in a bid to seek Canadian workers before the government will issue a labour market opinion allow- ing them to hire offshore. Exactly what they have to do depends on the job's skill level. For higher- level positions, for example, busi- nesses have to post a help-wanted ad on the government's job bank for at least 14 days in the preced- ing three months or undertake recruitment in line with standard practices for that occupation. For the lowest skill jobs, the rules are the same except that companies must also show they have made efforts to hire locally from groups, such as aboriginal communities, that have tradi- tionally faced employment barri- ers. In between are requirements for many trades jobs for which businesses must do the same as for the two other groups in ad- dition to posting the employer's name, its address, and the wage. As Malik points out, the changes don't alter the laws on hiring temporary foreign work- ers. Federal legislation has always included that requirement, but the various regional branches of Service Canada that issue LMOs have applied the policy differently, he says. In certain provinces, for example, bureaucrats would still issue labour market opinions for some jobs for which employers could explain why they didn't ad- vertise, presumably because they were able to show that search- ing locally for workers would be fruitless. Now, all regional offi ces have to apply the new standard set of rules, Malik notes. At the same time, offi cials used to be able to speed up the process for jobs listed under the so-called occupations under pressure list. "That list has been eliminated. Now, if you want to get an LMO, you absolutely have to go out and advertise," says Malik. For businesses, what's key is that they get themselves up to speed on the changes quickly, says Jonathan Leebosh, an asso- ciate at Egan LLP who special- izes in business immigration law. "The reality is it does require some strategizing," he says, not- ing that employers who don't follow the rules might fi nd their applications for foreign workers rejected. As well, he points out that the changes apply to re- newals of permits, meaning that employers for whom a foreign worker's permit has expired will have to advertise for Canadians fi rst before getting permission to Toughened recruitment requirements mean legal complications T BY GLENN KAUTH Law Times he federal government has toughened recruit- ment requirements be- keep their existing employees. Service Canada still maintains a list of exceptions to the advertising requirements, including jobs in the entertainment sector where em- ployees work for a limited number of days or positions involving the installation, inspection, or repair of equipment for which the warranty indicates the work must be done by employees designated by the manufacturer. But overall, Leebosh says the rules refl ect concerns about a softening labour market in Cana- da. "That's what this is all about." In addition to the recruitment rules, Leebosh notes the changes include a requirement for a "ro- bust documentation policy." Now employers must keep their records related to the hiring of tempo- rary foreign workers for six years, something that didn't exist before. Leebosh believes that rule is a hint that the government is planning to do more audits and reviews of companies, a trend already evident in Alberta. "Companies need to make sure they have really strong systems in place both in terms of recruiting and documentation." Both Malik and Leebosh point out that the changes are apt given the expected concerns from the public about hiring temporary foreign workers as the economy worsens and more Canadians fi nd themselves out of a job. But while the new rules might hint at protectionism, lawyers say that in the long term Canada's door remains open to newcomers able to fi ll labour shortages. "I don't get that sense myself," Leebosh responds when asked about protectionism. "The legislation is still there. I haven't heard that they're looking to fundamentally change the legis- lation, which says that a foreign worker shouldn't have a negative impact on the labour market." Narrow 1/8 - 3X.indd 1 The Law of Banking and Payment in Canada The leading authority on the law governing Canadian payment systems and instruments Naseem Malik says the changes don't alter the laws on hiring temporary foreign workers. Still, Malik says the changes will present a signifi cant chal- lenge for business. In particular, they'll make it harder for employ- ers to bring in foreigners quickly for specialized projects requiring immediate help since they'll now have to go through the advertis- ing process fi rst. "I know a lot of my clients are scrambling now because in the past they've not done that," Malik notes. In the long run, Leebosh says Canada must continue accepting foreign workers and immigrants given the long-term labour short- ages many observers argue the country is facing. As a result, he's confi dent the government recog- nizes the risk of being too restric- tive now only to exacerbate the lack of workers once the economy starts growing again. "It's a potential risk but not one offi cials I speak with aren't aware of," he says. The changes, in fact, follow a period of spectacular growth in the use of temporary foreign workers, most notably in previ- ously booming Western Canada but also in other parts of Can- ada. Now, of course, declining demand for staff generally means companies won't be looking for as many foreign workers. Still, Malik and Leebosh point out that shortages still exist in a few specialized sectors, something that makes the temporary foreign worker program a vital option. Surprisingly, Malik has a manu- facturing client that has been looking to recruit offshore. The company is planning to produce a unique product for which it needs to bring in foreign workers to get specialized equipment running. At the same time, he says the bio- technology sector has experienced a shortage of expertise, while Lee- bosh notes demand for people like engineers with specialized skills to work in remote locations as well as information technology workers with a particular type of experi- ence is still high. "Those are the people who are still needed in Canada," he says. He believes, however, the of- fi cials will continue changing the foreign worker program. "The economy is in such a state of fl ux that it is a fl uid situation where the government will be reactive to the labour market as it evolves." LT To advertise in an upcoming issue, contact our sales team: Karen Lorimer 905-713-4339 klorimer@clbmedia.ca Kimberlee Pascoe 905-713-4342 kpascoe@clbmedia.ca 3/4/09 2:26:28 PM This comprehensive treatise addresses the regulatory policies, the key institutions, the specialized and general-purpose payment systems and the decisions of the courts of Canada on the issues they raise. This work supplements and brings up to date the author's previous work on these topics. It includes entirely new chapters on: • the law of payment including the permissible forms of payment, the principles of the law of payment, currency of payment, appropriation of payments and compelling payment • the law of money, including consideration of the many forms of value that qualify as "money", the legal characteristics of money, fungibility and the exceptions; tracing at common law, equity and under statute; foreign exchange controls and economic sanctions • the business of banking , constitutional law issues surrounding banking activities, provincial control of banks' activities, meaning of "bank" in various contexts and "banking" by non-banks • the banker/customer relationship , formation and termination, terms, online banking, duties and standards of care and confidentiality, mandatory statutory disclosures and deposits • payment under options and derivatives contracts , the rules and operations of Canadian Derivatives Clearing Corporation and risk assessment in derivatives markets ORDER your copy today Looseleaf & binders (3) • $445 • Releases invoiced separately (1/yr) P/C 0197030000 • ISSN 1918-4247 For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. 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