Temporary foreign worker program: 4 changes needed, Reis Pagtakhan says

Winnipeg immigration lawyer Reis Pagtakhan says there are four things about Canada's temporary foreign worker program that should change once a parliamentary committee finishes its review of the program.
A temporary foreign worker picks apples on a Canadian farm in 2015. (CBC News)

For the last few weeks, a committee of Parliament has been studying the program that allows Canadian employers to hire qualified foreigners when no Canadian or Canadian permanent residents are willing or able to fill vacant positions in Canada.

When the study of the temporary foreign worker program is complete, there are four things that should be changed:

1. The 10 per cent cap on low-wage temporary foreign workers should be removed.

Two years ago, the government limited the number of low-wage temporary foreign workers to 10 per cent of a company's workforce at each work site. The purpose of this policy was to provide greater incentive for employers to hire Canadians first. 

While such a policy such would be justified if the temporary foreign worker program was used by employers to intentionally not hire Canadians, sufficient safeguards exist to ensure Canadians get jobs first.

Under the law, employers must post multiple ads in Canada, actively attempt to recruit Canadians and offer wages at or above the median wage for the occupation, before they are allowed to hire a temporary foreign worker. If the government finds the hiring of temporary foreign workers could have a significant negative effect on the Canadian labour market, the government can refuse to allow an employer to hire temporary foreign workers and can even send temporary foreign workers back home before their contracts expire.

Since the Canadian government gave itself the power to send temporary foreign workers home, there has been a total of zero cases where this has occurred. Either the government has dropped to ball on enforcing this rule, or no evidence exists to show that temporary foreign workers take away Canadian jobs.

If no evidence exists that Canadian jobs are being taken away, why keep the 10 per cent cap? In certain industries, especially those in rural and remote areas, the 10 per cent cap actually hurts the Canadian economy by preventing employers from hiring the people they need. Employers that cannot be successful will eventually shut their doors, which will result in Canadians being laid off.

2. The government should provide an automatic permanent residency pathway for all temporary foreign workers.

Currently, only highly skilled workers have a clear path to permanent residency. For what the government calls low-skilled workers, pathways to permanent residency are only available in certain provinces (one of which is Manitoba).

Because employers must prove that no Canadians are willing and able to take a job before being able to hire temporary foreign workers, they should be allowed to assist their employees to apply for permanent residency if the shortage of workers remains chronic. 

But how do we prove that job vacancies are chronic? The solution to this would be to give these workers a pathway to permanent residency if their employers can prove shortages exists in the labour market for two consecutive years — as opposed to one year for high-skilled workers.

Surely an employer that can show a chronic shortage for two years needs a more than just a temporary solution to that employment problem. Temporary foreign workers in this situation should be given a pathway to permanent residency.

3. The government should continue to enforce temporary foreign worker rules.

Currently, only four employers appear on the government list of companies that have broken the temporary foreign worker rules. When the government introduced changes to this program two years ago, they announced that 25 per cent of employers would be audited to ensure compliance with these rules. Presumably, the lack of cases means the vast majority of employers are complying with the law.

The best way to assure Canadians that they have the first opportunity at available jobs is to enforce our immigration laws. Canadians and Canadian business must be assured that businesses that break immigration laws to obtain a competitive advantage are punished, and that Canadians get access to jobs first.

4. The government should provide clear guidelines on how temporary foreign worker applications will be assessed.

Currently, a portion of the guidelines the government uses to assess temporary foreign worker applications are not publicly posted. However, these internal guidelines can be obtained by the public through Access to Information and Privacy Act requests.

By keeping some guidelines secret, larger employers, who have the means to research these issues more fully, have advantages over small businesses that may not have time to devote to making Access to Information and Privacy Act requests. While there is nothing wrong with requiring employers to clearly prove the need to hire from abroad, employers should not have to guess what is expected of them.

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