Temporary Foreign Worker

 Program: 'Stiff' new penalties 

coming Dec. 1

Lack of appeal process for 'extreme' penalties still a sticking 

point for some employers

By Susana Mas, CBC News Posted: Jul 15, 2015 12:26 PM ET Last Updated: Jul 15, 2015 1:30 PM ET

New penalties for employers who break the rules when hiring foreign workers come into force on Dec. 1. During boom times, Canada's oil sector has been a major employer of temporary foreign workers. (Gregory Bull/Associated Press)

The federal government has announced "stiff new consequences" for employers who break the rules when hiring foreign workers, but employers say the lack of an independent appeal process could be time-consuming and costly for individuals and businesses alike.

The changes, which take effect on Dec. 1, come after the government received feedback from 42 stakeholder groups on a discussion paper posted online last September outlining proposed consequences for employers found to have broken the rules.

• Irving holds Fort McMurray job fair to lure oil workers east

The new regulations, published in the Canada Gazette this month, apply to employers hiring foreign nationals under the Temporary Foreign Worker Program and the International Mobility Program and to individuals seeking to hire foreign caregivers.

"Stiff new consequences," said Employment Minister Pierre Poilievre in a news release last week, "will encourage compliance and help prevent employers from misusing the programs or mistreating workers by ensuring that employers who violate program conditions face appropriate consequences."

Employment Minister Pierre Poilievre said in a news release last week that new penalties for employers who break the rules are intended to protect the Canadian economy and workers. (Sean Kilpatrick/Canadian Press)

Under the new rules, employers found to be "non-compliant"  following an inspection could face a ban from using the program ranging from one to 10 years for each violation, or even a permanent ban for the most serious violations. Currently, the only consequence is a two-year ban.

Employers could also face fines ranging from $500 to $100,000 for each violation. Amendments made following stakeholder feedback will see fines capped at $1 million per year, per employer.

Other amendments following the consultations include:

• Giving employers at least 30 days to respond in writing to preliminary findings of an investigation, with the possibility of extensions.
• Allowing employers to voluntarily disclose mistakes and receive a lesser penalty, such as a written warning.
• Reinstating "good faith" provisions to acknowledge human error, such as administrative errors or misinterpretations, can occur.
• Posting a so-called "blacklist" online with only the names of employers who have been fined or banned from using the program, instead of the names of all employers found to be "non-compliant."

Appeal process criticized

The new rules are meant to address concerns about changes to the program following a series of stories by CBC's Go Public unit that reported on allegations of abuse by several employers, including RBC and McDonald's.

But some stakeholders are concerned the changes still leave employers without proper recourse to appeal.

The compliance regime creates absolute liability for the employer.

- Vance Langford, immigration law section of the Canadian Bar Association

The Canadian Chamber of Commerce, the largest business association in the country representing some 200,000 employers, was one of the groups that wrote to the government about the proposed changes.

"We still find the penalties very stiff for small employers, but at least there seems to be a more reasonable approach to errors made in good faith and a change to the administrative decision-making process, that is allowing a written reply by an employer before a decision on non-compliance is made," said Sarah Anson-Cartwright, the director of skills policy at the chamber, in an email to CBC News.

"These compliance decisions should be balanced by a proper appeal process, but we do not see that ... which is unfortunate," Anson-Cartwright added.

The Canadian Federation of Independent Business, which represents more than 109,000 small business owners, welcomed the amendments as "a step in the right direction" but also expressed concern around the lack of an independent appeal process.

"Too much discretion is left in the hands of the minister and the bureaucrats," said Richard Truscott, vice-president of the CFIB's B.C. and Alberta chapter, in a phone interview with CBC News on Monday.

Under the new rules, employers have at least 30 days to contest the findings of an investigation, but once a final determination is made, the only recourse available to employers is legal action.

"The ramifications for small businesses could be very costly," Truscott said.

'Absolute liability' for employers

The Canadian Bar Association also weighed in, with its immigrant law section making 10 recommendations for improving the proposed system of sanctions.

Vance Langford, a Calgary lawyer and an officer with the CBA's immigration law section, welcomed rules to allow for voluntary disclosure and the reinstatement of "good faith" provisions in the Immigration and Refugee Protection Regulations. But he said the CBA's other recommendations have not been adequately addressed.

"The penalties are extreme," Langford said in a phone interview with CBC News on Tuesday. "The compliance regime creates absolute liability for the employer."

The CBA recommended the government "develop a comprehensive review process that includes an appeal to a court, or at least a de novo hearing by an independent and impartial tribunal for findings of non-compliance and imposition of penalty."

Langford said the severity of the penalties combined with the lack of an appeal process "could put employers out of business," and consequences for individuals or families seeking to hire a foreign caregiver could be "devastating."

CBC News asked for the names of the 42 groups that provided feedback to the government but Pierre Nolet, a spokesman for ESDC, said the list could not be made public for privacy reasons.

"The largest portion were from organizations representing employers who use the Temporary Foreign Worker Program or the International Mobility Program and who could be subject to the new consequences for violating program conditions," Nolet said in an email to CBC News.

He said comments were also received from organizations representing foreign workers, the legal community and other levels of government, adding the federal government sent the proposed changes to more than 300 stakeholder groups
The Source:http://www.cbc.ca/news/politics/temporary-foreign-worker-program-stiff-new-penalties-coming-dec-1-1.2937120

Comment:

"The ongoing foreign worker fiasco …

People, not numbers, lie

The good news is that Ottawa has a bureaucrat responsible for the “Integrity” of our foreign worker program.

The federal government’s chief management committee, headed by Jason Kenney, just gave the Integrity boss new powers. Starting December 1, 2015 the Integrity boss can penalize employers up to $1 million if they fail to keep their LMIA commitments.

Kenney is spending an additional $45 million to back up the Integrity muscle.

So far, so good.  

Now let’s look at a few facts. 

• In 2015 , Ottawa  has probably issued under 300 LMIA’s to foreign trades workers(unskilled and skilled) in Ontario 

• Presently, there are over 300,000 illegal trades (unskilled and skilled) workers in Ontario. Officially, there are no statistics or any other formal recognition of the existence or cost of illegal workers. They do not exist. They are a myth. Since they do not exist, government has no will to consider the cost of carrying 300,000 illegal works in Ontario.

• The Integrity boss has no power over employers who do not bother to apply for LMIA’s. Thus for every one foreign worker who is controlled by the Integrity boss , there are 999 foreign workers who do not show up on Jason Kenney’s “integrity” books.

•  The financial penalty to employers who simply avoid the LMIA process and hire illegal foreign workers is a fraction of the penalty faced by employers who run afoul of the Integrity boss

• While the LMIA office has millions of dollars to harass employers who try to follow the rules, Canada Border Services in the GTA does not have the money to investigate employers and unions who hire illegal workers. The reason Jason Kenney does not give the money is because there is a long standing agreement in the key construction sector that Her Majesty will not enforce the Immigration Act against GTA unions and larger employers.

• It costs $100 for an illegal foreign worker to register as a sub contactor and thus protect the employer. It costs an employer $1,000 in government fees plus another few hundred in advertising and about $2,000 -$3,000 in legal fees to apply for an LMIA that may be issued in a few months.

• Foreign workers are limited to 4 tax paying years in Canada. Many illegal workers have been here for a lot longer without paying taxes. Government losses over $1 billion annually on unpaid taxes

• Employers are responsible for paying the 50% overtime charge for legal workers. Illegal workers save the employer the 50%. Employers make over $2 billion a year on unpaid overtime   

Conclusion

The concept of Integrity in the foreign worker system stands on par with the concept of virginity in a brothel. The process is pretty much the same. The players are pretty much the same.

Whether a whore house or an Ontario job site, Her Majesty’s role is pretty much the same…. enforcement if necessary but not necessarily enforcement. Tax no evil. See no evil."

Richard Boraks, July 16 2015