Canadian employers found violating the rules of the Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP) have to pay stricter penalties than a year back. Announcements regarding new regulations were made in July 2015. The compliance will be jointly administered and implemented by the departments of Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).
The current repercussions for employer non-compliance includes a two-year ban from using the programme. There exists no range of penalties regarding the severity of the violation.
New requirements
As per the new regulations, employers who fail to comply with the regulations of the program will receive a penalty of a one, two, five, or 10-year ban from the use of the program(s). The length of the ban will be based on the type of violation, along with the employer’s history of violations which has occurred on or after December 1, 2015, and the violations’ severity. In the most serious of cases, a permanent ban can be enforced on the employer.
The employer requirements and conditions are:
- To provide accurate information in the context of a Labour Market Impact Assessment (LMIA) application;
- To retain documents and records for at least a period of six years;
- To pay wages that are substantially the same, but not in any way less favourable;
- To provide the same occupation as the one set out in job offer;
- To provide working conditions that are the same, and not less favourable, than those set out in the job offer;
- To ensure that reasonable effort is being made to provide a workplace that is free of abuse;
- To stay engaged actively in the business in which the job offer was made
- To remain compliant with any federal, provincial or territorial employment or recruitment laws.
The penalties
The following tools will be used to assess employers’ adherence to program conditions and requirements:
- Employer Compliance Reviews (ECR);
- Reviews under Ministerial Instruction (RuMI); and
- Inspections.
Implementation of a system of administrative monetary penalties (AMPs) will take place as of December 1. The fines for these penalties can range anywhere from $500 to $100,000 per violation. Although the AMPs will be cumulative, bans will not. For instance, situations where there are multiple bans, the longest one will apply.
Employers who fail to comply with the new TFWP and IMP requirements as of December 1 will be subjected to the following sanctions:
- warnings;
- fines that can range from $500 to $100,000 per violation, which can go up to a maximum of $1 million over one year, per employer;
- the possibility of being banned from accessing the programs for one, two, five, or ten years or even permanently; and
- the employer’s name will be on a publication with details of the violation(s) and sanction(s).
The discretion that will be applied to this broad range of penalties will be guided in part by:
- the violation type;
- history of employer’s compliance;
- the severity of non-compliance; and
- the volume and size of the employer’s business, this will be for financial penalties only.
The new regulations will be applicable to employers that are hiring foreign nationals under either the TFWP or the IMP, along with the Canadians hiring foreign caregivers, and will be applicable to any violations occurring on or after December 1, 2015. For unjustified non-compliance with program conditions occurring prior to December 1, the regulatory framework currently in place which provides for a two-year ban will be continued.
This is a great news for all immigrant workers. As for the Canadian public, a public blacklist of employers who have received bans or fines due to noncompliance, allows them to make conscious and transparent consumer choices. Employers using these programs and following the rules are bound to benefit from increased public confidence.
To know more about compliance laws in Canada for employers hiring foreign nationals, get in touch with Prowse Barrette (Previously Prowse Chowne).