Temporary foreign worker rule changes have no bite

The Canadian government's recent changes to the temporary foreign worker program sends mixed signals to employers and the public about its priorities, writes R. Reis Pagtakhan.

Federal government sending 'mixed signals' to businesses and the public about TFWs

Jason Kenney, the federal minister of employment and social development and minister of multiculturalism, looks on before announcing more than $3.3 million in funding for the B.C. government to improve foreign credential recognition last month. (Darryl Dyck/Canadian Press)

When it comes to temporary foreign workers and protecting Canadians' jobs, does the federal government's latest rhetoric align with what's really going on?

When the government announced its overhaul of the temporary foreign worker program in June, it said employers must acknowledge that they know of a rule that says Canadians can't be laid off or have their hours reduced at a workplace that employs temporary foreign workers.

But in reality, the government has not put any such rule in place that says Canadians can't be laid off in those circumstances, nor has it changed a law that could actually penalize companies that lay off temporary foreign workers before Canadians.

Last week, CBC News reported that an electrical contractor in Saskatchewan allegedly laid off its qualified Canadian citizen employees while keeping its temporary foreign workers employees.

In that story, the federal government claimed that its recent overhaul of the temporary foreign worker program now makes it clear that temporary foreign workers must be laid off before Canadian citizens. However, a closer look at the law indicates that this is not the case.

Under current immigration laws, most employers have an obligation to attempt to hire qualified Canadians and Canadian permanent residents before hiring temporary foreign workers. However, unless the federal government changes its laws, these businesses have no obligation to lay off temporary foreign workers before Canadians after temporary foreign workers are hired.

Since 2011, employers of temporary foreign workers have had to comply with a law that is known as the "substantially the same" test. Under this test, employers of temporary foreign workers must provide temporary foreign workers with "substantially the same" wages, working conditions and employment that the employer represented in its initial application to hire temporary foreign workers.

Natalie Cranston was one of about 800 electricians working for Alliance Energy on the expansion of the Agrium potash mine in Vanscoy near Saskatoon. She told CBC News that she was one of 58 Canadian workers laid off in May, while 30 to 40 temporary foreign workers remained employed. (CBC)
In 2013, the federal government strengthened these rules to prevent employers from offering wages and working conditions that were less favourable than what the employer originally represented.

As a result, if an employer lays off temporary foreign workers and subsequently recalls them, the employer can face severe penalties if this is found to be a change in wages, working conditions or employment.

The federal government's claim that there is now a new rule that prevents employers from laying off Canadians before temporary foreign workers seems to revolve around a question that is now asked of employers in the application process.

'Now or in the foreseeable future'

Since June, employers are asked whether the employment of a temporary foreign worker will lead to job losses for Canadians or Canadian permanent residents "now or in the foreseeable future." While this is a good question to ask, what exactly does this mean?

What if the reason for layoffs is an unforeseen increase in the Canadian dollar? What if it is because of the unforeseen entry of a major competitor in the market? What if the reason for layoffs is an unforeseen economic downturn, like a recession, or the loss of a previously loyal and large customer? Surely, the federal government is not mandating that employers now have to tell the future.

Before one advocates for the elimination the "substantially the same" rule, one should know why this rule was put into effect in the first place.

Before these rules came into force, there was a court case in which an employer who brought in temporary foreign workers paid those employees less than promised. Because of the lack of a "substantially the same" rule, this employer faced no penalty. This rule was brought in to protect temporary foreign workers from abuse.

Unfortunately, the same rules that protect temporary foreign workers from abuse may now compel employers to lay off Canadian workers before temporary foreign workers.

For employers who want to be law-abiding, the current federal law provides a no-win scenario. If an employer changes the wages or working conditions of a temporary foreign worker, the employer could face federal penalties. If the employer lays off a Canadian first, the employer may face accusations that the employer is not complying with the "spirit" of the law.

Complying with the "spirit" of the law is easy as long as it is consistent with the "letter" of the law. If the federal government's goal is to ensure that a company lays off temporary foreign workers before qualified Canadians, the government should specifically allow employers to do this in the law.

By keeping provisions of the law that can potentially cause an employer to be in violation if it lays off temporary foreign workers, the government sends mixed signals to businesses and the public as to its priorities.

R. Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.


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