Law Times

Law Times • February 29, 2016 Page 9 www.lawtimesnews.com Reshaping foreign worker conditions BY JUDY VAN RHIJN For Law Times A raft of new programs and regulations aimed at for- eign nationals will have ramifications for hiring and re- cruiting. While the province has re- cently introduced new laws de- signed to protect foreign workers from exploitation, on the federal scene, the former Conservative government's campaign to limit the use of foreign nationals re- sulted in new regulations penal- izing non-compliance with for- eign worker programs. All eyes are now on the new federal Liberal government to see if it will take a different ap- proach. In the federal arena, Henry Chang of Blaney McMurtry LLP in Toronto has watched the introduction of new penalties and practices with some alarm. "This all started after the Royal Bank of Canada scandal put the spotlight on the issue of outsourcing, bringing in foreign workers to facilitate Canadian offshore ventures," says Chang. "In a subsequent crackdown on foreign workers, the Con- servatives slowly implemented changes that are supposed to discourage the use of foreign workers and encourage the use of Canadian workers. In fact, they push foreign workers away." The RBC issue became a me- dia firestorm when Canadian employees at the Royal Bank of Canada were laid off and given the impression that the bank was training foreign replace- ments who had come into the country under the Temporary Foreign Worker Program for their jobs. Both the federal government and RBC responded with rheto- ric confirming that Canadian jobs should be kept for Canadi- ans, and legislative and regula- tory changes followed. Chang says the new provi- sions are nasty and plentiful. He particularly identifies changes to the monetary penalty provi- sions that came into operation in December 2015. "An inadvertent violation, even if you correct it, can attract penalties. It`s meant to be reha- bilitative, to get the employer onside, but even the smallest thing can be punished by a pen- alty," says Chang. "Or they can be banned or have their name published on the blacklist. Small businesses can't deal with that." Employment and Social Development Canada has in- creased inspections so that one in four employers using tem- porary foreign workers will be inspected each year. It has also implemented a tipoff line and random audits. Inspectors were given en- hanced authority including the power to conduct warrantless on-site inspections. In addition, a stricter ap- proach to the issuing of Labour Market Impact Assessments in cases where hiring a foreign worker has a neutral effect on the labour market has added barriers to the process for employers who want to hire foreign workers. "It has always been a com- plicated, time-consuming, and expensive process," says Chang. "Now it's even harder. If the smallest thing is not quite right, the officers will deny the applica- tion." Chang believes the changes are unnecessary. "After the RBC scandal, they said, 'Let's make it harder for foreign workers who are obvi- ously stealing Canadian jobs,' but that's not necessarily what's happening. There is a miscon- ception that the Foreign Worker Program has been abused," says Chang. "There are always a few bad eggs, but there has been no widespread abuse. The changes have made it harder for legiti- mate businesses to hire foreign workers when they can't find anyone." It remains to be seen if the Liberal government will take a different tack. Chang is hopeful it might be more open to listen- ing to what business owners are saying. He is also hopeful that the strict new attitude to Labour Market Impact Assessments might ease up. "If the officers are not getting orders from the top, it will help," he says. In fact, the new Minister of Employment, Workforce Devel- opment and Labour, MaryAnn Mihychuk, is aware of the prob- lem. She issued a statement earlier this month saying she's heard "from businesses, from worker advocates, Members of Parlia- ment and others across Canada that the Temporary Foreign Worker system needs to change." "I believe in addressing issues such as helping more Canadians find good jobs available across the country, helping Canadian businesses grow and prosper, and how to offer people access- ing the program a path to citi- zenship," said the statement. Minister Mihychuk's plan is to ask a House of Commons com- mittee to study the program, and to provide advice and suggestions for reform and improvement. In the meantime, the fast-track program for LMIA applications, which cover the highest-demand and highest-paid occupations or short-duration work peri- ods, remains in operation with a 10-business-day service standard based on a rigorous review of all the elements of the employer's ap- plication. Those foreign workers who do make it to Ontario, and the 100,000 who are already in Can- ada, will now have the protection of new laws that target abuse by recruiters. The Employment Standards Act, 2000 has been amended to allow individuals who are hired through a temporary help agency to recover unpaid wages, overtime, public holiday, and premium pay from both the agency and the agency's client. The Employment Protection for Foreign Nationals Act, 2009, which formerly covered only for- eign live-in caregivers, now cov- ers foreign nationals employed through an immigration or for- eign temporary employee pro- gram. This means recruiters can- not charge fees or withhold pass- ports or work permits belonging to foreign nationals in the new legislation. Chang, for one, approves of these changes. "Some recruiters are legiti- mate, but a lot are not," he says. LT FOCUS Order # 804218-65203 $460 2 volume looseleaf supplemented book Anticipated upkeep cost – $332 per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00227VI-A48891 Cited by the supreme court of Canada Canadian Employment Law Stacey Reginald Ball "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." Canadian Bar Review More than 6,145 cases cited Canadian Employment Law is a one-stop reference that provides a thorough survey of employment law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada, and is used in law schools throughout Canada. With methodically organized chapters covering the complete range of employment law, Canadian Employment Law provides the kind of detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: wrongful dismissal, fiduciary obligations, tort law and vicarious liability issues, remedies, constitutional issues, occupational health and safety, employment contracts, duty of good faith and fidelity and human rights. Includes a Table of Reasonable Notice — a chart, which groups together comparable types of positions so you can easily compare length of notice awards. Plus, all topics are illustrated with extensive case law and useful footnotes. CANADA LAW BOOK ® Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Also available online on WestlawNext® Canada EmploymentSource™ 82 Scollard Street, Toronto, Canada, M5R 1G2 Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Ball Professional Corporation Referrals on behalf of employees and employers respected Contact Stacey Ball at web: www.staceyball.com (416) 921-7997 ext. 225 or srball@82scollard.com all_LT_Nov7_11.indd 1 11-11-08 11:44 AM Henry Chang says government changes are discouraging the use of foreign workers in Canada.

• Cover