Effective December 31, 2013, amendments to Canada’s Immigration and Refugee Protection Regulations (IRPR) come into force, and new Ministerial Instructions issued by the Minister of Employment and Social Development Canada (ESDC) come into effect.
As a result, employers who want to apply for a labour market opinion (LMO) as of December 31, 2013, need to be aware of the new powers and duties conferred on the Minister of ESDC, and the new conditions employers will be required to comply with, including:
- Prohibition on the issuance of LMOs to employers in the sex and sex-related trades
- New LMO Forms and Conditions imposed on employers
- Greater authority for ESDC to conduct inspections
- New ministerial instructions to suspect and revoke LMOs, or to refuse to process LMO applications
Prohibition on the issuance of LMOs to employers in the sex and sex-related trades
Effective immediately, ESDC will no longer issue an LMO to any employer seeking to hire a temporary foreign worker where the employer’s business involves offering striptease, erotic dance, escort services or erotic massages on a regular basis. This prohibition is designed to protect foreign workers from the risk of abuse and exploitation.
New LMO forms and conditions and imposed on employers
As part of the regulatory amendments, employers applying for an LMO will now be required to retain any document relating to the terms and conditions of the foreign worker’s employment for a period of at least 6 years, beginning on the first day of the period of employment for which the foreign worker’s work permit was issued.
In addition, employers will now have greater responsibility in ensuring that reasonable efforts have been made to provide a workplace that is free of abuse, as well as demonstrate efforts to hire or train Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of a positive LMO and work permit.
In line with these changes, ESDC has also introduced new LMO application forms that include modified questions and additional attestations. Effective immediately, all employers seeking to apply for an LMO must complete and sign the new, updated forms.
Greater authority to conduct inspections
ESDC/Service Canada officials now have the authority to conduct inspections to verify an employer’s compliance with the conditions of Canada’s immigration regulations, including the terms and conditions of employment confirmed in the company’s previous LMOs and annexes. These inspections are separate from employer compliance reviews and will authorize officers to:
– Require employers to provide documents that relate to compliance going as far back as 6 years
– Conduct on-site inspections of any public space or dwelling without a warrant
– Interview foreign workers and Canadian employees, by consent
For on-site inspections, ESDC has advised that in the majority of cases, advance notice will be given to employers. In the event an employer is found to have been non-compliant without justification or corrective action, employers may be subject to the following repercussions:
– Bar from hiring foreign workers in Canada for 2 years;
– Have the company name, address and period of ineligibility published on a public ban list;
– Receive a negative decision on any pending LMO applications; and/or
– Have previously-issued LMOs revoked.
New ministerial instructions to suspect and revoke LMOs, or to refuse to process LMO applications
As a result of the introduction of new Ministerial Instructions, ESDC may now suspend or revoke LMOs, or refuse to process LMO applications, under identified public policy considerations. ESDC has advised that decisions governing the LMO suspension or revocation will not be taken lightly and that employers facing a suspension or revocation of their LMOs will be contacted and provided an opportunity to respond. ESDC/Service Canada may also refuse to process LMO applications based on the public policy considerations provided in the Ministerial Instructions for selected sectors; regions; or occupational groups. ESDC will publish on its website, in advance, any information related to any decision made by the government regarding the refusal to process LMO applications for any specified groups. As of December 31, 2013, no such publications have been made.
For more information or to discuss how these changes may impact your business, contact PricewaterhouseCoopers Immigration Law LLP to speak with one of our Canadian immigration professionals.