Changes to the Immigration and Refugee Protection Regulations (IRPR) aimed at providing increased protection for temporary foreign workers (TFWs) by placing significantly more compliance measures on employers became law on Sept. 26, 2022.
Employers obtaining employer-specific work permits need to be aware of the changes. Employers will need to implement new internal practices and policies to remain compliant and to avoid Administrative Monetary Penalties that can be assessed if an employer fails an inspection under the compliance regime.
Overview of changes
The government's overview of the changes is here: Government Backgrounder on new IRPR Amendments.
The changes affect both the Temporary Foreign Worker Program (TFWP) for Labour Market Impact Assessment (LMIA) based work permits, and the International Mobility Program (IMP) for non-LMIA, employer-specific work permits.
The changes expand the compliance regime. Employers may face penalties if found non-compliant. Employers that hire many TFWs could face multiple administrative penalties if they fail to meet the requirements for each TFW hire.
The complete set of changes is outlined here: Regulations Amending IRPR and Regulatory Impact Assessment. The amendments will be integrated into an updated version of the IRPR available online.
The main IRPR changes and employer takeaways
The main changes are set out below.
1. Requirement to provide TFW hires with information on their rights
Employers must, on or before the first day of work, provide the TFW with prescribed information about their rights, in the official language of the TFW 's choice.
The prescribed information for TFWP/LMIA situations is here: Rights of TFWs under the TFWP.
The prescribed information for IMP/LMIA-exempt work permit situations is here: Rights of TFWs under the IMP.
IRCC has indicated that employers may meet the requirement by providing the IMP notice's website address to the TFW hire, unless the TFW does not have access to the internet in which case the employer should provide a paper copy. Employers are expected to keep a record confirming they provided the information to the TFW.
This requirement is in addition to any provincial requirements to provide information on worker or TFW rights, such as under applicable provincial employment standards or foreign worker protection legislation.
Employer Takeaways: Employers should provide the prescribed information on TFW rights as part of their TFW hiring process. The information should be provided early in the process to ensure that it is provided prior to the first day of employment. Employers should keep a record of providing the information, including the date it was provided, and retain this for up to six years from the first date of employment. Make sure you provide the correct version of the information or handout, as the prescribed information required for TFW versus IMP situations is somewhat different. Build this into your hiring process.
2. Requirement to make TFW rights information available on ongoing basis
Employers must also ensure that the prescribed information is available to the TFW throughout their employment. It must be easily accessible, directly by the TFW .
Employer Takeaways: What is appropriate will depend on the circumstances of the employer. Physically posting the Rights of TFWs under the TFWP notice and/or the Rights of TFWs under the IMP notice in the workplace in a place where TFWs are likely to see the notice should be done. Posting it on the company intra-net or website may also need to be done if the TFWs are working remotely or in a hybrid model.
Employers with TFWs should take immediate steps to meet this requirement if they have not already done so.
Employers should also review the prescribed notices from time to time on the federal government site to be sure that they are posting/providing the most recent versions.
3. Written, signed employment agreement must be provided to TFWs
Employers are required to provide a signed, written employment agreement to each TFW .
Under the TFWP (LMIA-based work permits), employers are required to enter into a written employment agreement on or before the TFW's first day of work. The employment agreement is not required at the time the LMIA application is filed. The agreement must refer to the same occupation, wages and working conditions as those outlined in the TFW's offer of employment. ESDC has indicated that a new employment agreement will be required if an employer obtains a new positive LMIA for a returning TFW.
Under the IMP, for a number of years already, employers have been required to utilize the Employer Portal to upload terms and conditions of employment and pay the employer compliance fee. The amendments now require an employer using the Employer Portal to attest that:
"…I have entered into an employment agreement with the foreign national that provides for employment in the same occupation and the same wages and working conditions as those set out in the [Employer Portal] offer of employment….[and that] the employment agreement is drafted in the foreign national's chosen official language….is signed by myself and the foreign national, and that I have provided a copy of the employment agreement to the foreign national."
Therefore, where an IMP work permit is sought, employers are expected to enter into a signed, written employment agreement with the foreign national before the Employer Portal upload is completed.
From an immigration and employment law perspective, having a written employment agreement in place has always been recommended where the Canadian entity will be employing or directly engaging the TFW. The amendments make that best practice mandatory. Gowling WLG can assist employers in developing and preparing such agreements.
A blanket requirement has been imposed on employers to enter into a written agreement. IRCC has not set out any exceptions to this requirement. However, the requirement of entering into an employment agreement may not fit every scenario where the Employer Portal is used, such as where there is no employer-employee relationship. For example, where a Canadian entity requires an emergency repair work permit for a foreign national technician who is employed by a foreign service provider.
How will inspectors view such a scenario? Will inspectors automatically find non-compliance if the employer cannot produce a written employment agreement that pre-dates the Employer Portal upload? Will employers be allowed to justify the lack of a written employment agreement to avoid penalties? We hope that IRCC or ESDC will provide further guidance in this area.
Employer Takeaways: Employers are required to enter into written employment agreements with TFWs that are consistent with the employment terms (occupation, wages and working conditions) set out in the underlying LMIA application or Employer Portal upload. As a best practice, for IMP work permits this should be done before the Employer Portal is submitted given the language of the employer attestation. Employers are expected to retain a copy of the agreement for up to six years from the first day of employment of the TFW .
There is no guidance yet on scenarios where there is no employment agreement or contract with the TFW. For Employer Portal situations, perhaps employers can provide an explanation in the Additional Information or Alternative Compensation sections of the Employer Portal. Alternatively, perhaps obtaining written confirmation from the TFW that the TFW is not entering into an employment relationship or being paid or employed by the Canadian entity will be viewed by IRCC as meeting the "employment agreement" requirement.
4. Prohibition on charging or recovering fees from TFWs
Employers cannot charge or recover from the TFW, directly or indirectly, any fees relating to recruitment. Employers must be able to show that no recruiting fees have been charged to or recovered from the TFW , and that any person recruiting on their behalf has not and will not do so, directly or indirectly. This must be attested to in each Employer Portal upload.
IRCC indicates that "fees related to recruitment" are any fees or costs incurred in the recruitment process in order for a TFW to secure employment or placement. The fees "may be one time or recurring and cover recruiting, referral, or placement services."
Employers must also comply with any applicable provincial legislation that regulates recruitment or protects TFWs from cost recovery or charges.
Employer Takeaways: Employers must be careful not to charge or try to recover recruiting fees from the TFW, at any time. If using a recruiter or if a third party offers to recommend TFW candidates, Canadian employers should take steps to minimize the risk of being found liable if the recruiter violates this regulatory obligation. For example, employers should ensure that they are dealing with a reputable recruiter and that the recruiter is registered under any applicable provincial legislation where required. Any agreement with the recruiter should require the recruiter to confirm that they will not charge fees to the TFW, and that the recruiter will reimburse the employer for any damages or costs if the recruiter breaches this provision.
5. Providing private health insurance and access to health care services
Employers under the TFWP are now required to provide and pay for private health insurance to cover emergency medical care for LMIA-based work permit holders during the period for which the TFW is not covered by their provincial health insurance system. Since different provinces and territories have different rules regarding eligibility, the applicability of this requirement may depend on what province the TFW is working in.
The only exception to this is for employers who employ a TFW under an agreement reached between Canada and another country concerning seasonal agricultural workers, where the agreement includes health insurance.
Employers under both the TFWP and the IMP are now required to make reasonable efforts to allow TFWs to access health care services if they become ill or injured at the workplace.
Employer Takeaway: Employers hiring TFWs under LMIAs must build into the hiring process the provision of private health insurance to provide emergency medical care during any waiting period before the TFW becomes eligible for provincial health coverage. Employers should consult with their insurers or insurance brokers to find appropriate private health insurance. If you hire TFWs across multiple jurisdictions, you may wish to consider implementing a universal policy of providing such private insurance rather than trying to figure out each province's public health coverage eligibility.
6. Providing a workplace free of abuse
Employers were already required to provide a workplace free of abuse. The definition of "abuse" has been expanded to protect TFWs against employer reprisals.
7. Expanded inspection powers
There is an amendment that gives IRCC and ESDC authority to require documents from third parties (such as payroll companies or banks) that relate to employer compliance. Another amendment enhances the ability to collect and share personal information in order to review whether an employer is compliant. The additional powers will allow inspectors to more easily assess and verify employer compliance, and to bypass employers that do not cooperate with an inspection.
Conclusion
The regulatory amendments place a greater compliance burden on employers hiring TFWs. The changes have been introduced with little guidance and a "one size fits all" approach that may leave employers scrambling to try to deal with the implications and nuances of the amendments. We expect that government inspections, which decreased significantly during COVID, will be on the rise with inspectors focused on whether employers are compliant with the additional requirements.
Employers must review the new requirements and implement best practices to mitigate the risk of facing an inspection and being found non-compliant. Employers that breach IRPR's conditions may face fines and may be prohibited from using the foreign worker program depending on the severity of the breach.
Key employer takeaways include
- Have a system in place to provide new TFW hires with the correct prescribed information regarding their rights, on or before their first day of work.
- Make sure that the prescribed TFW rights information is readily accessible to TFWs on an ongoing basis.
- Have a system in place to obtain a signed employment agreement from the TFW.
- Ensure that you (and anyone recruiting TFWs for you) do not charge or collect any prohibited fees from the TFW relating to the TFW's recruitment.
- For LMIA-based work permit holders, have a system in place to provide private emergency medical services insurance if the TFW has no provincial public health coverage.
- Stay on top of future changes and clarifications of these amendments.
Please contact a member of the Gowling WLG Immigration team if you require further information on these changes or if you required any advice on any immigration or work permit matters. Gowling WLG can also assist employers to develop employment agreements for TFW hires.