Hire a temporary worker through the Seasonal Agricultural Worker Program: Program requirements

2. Program requirements

Processing fee

LMIA processing fee does not apply to occupations:

  • related to primary agriculture, and
  • positions under the National Occupational Classification (NOC) codes 80020, 80021, 82030, 82031, 84120, 85100, 85101 and 85103.

Recruitment fees

There may be a variety of fees and costs incurred in the process of recruiting temporary foreign workers, including but not limited to:

  • cost of using a third-party representative
  • advertising fees
  • fees paid by a foreign national for assistance with finding or securing employment
  • fees paid by an employer for assistance or advice in the hiring of foreign nationals

As an employer, you must confirm and ensure that you or anybody recruiting on your behalf does not charge or recover any recruitment fees, directly or indirectly, from the temporary foreign workers. Failure to do so will result in a negative LMIA decision.

Transportation

Employers must always arrange and pay for the round-trip transportation of the temporary foreign worker (TFW). Transportation includes travel to and from their place of work in Canada and their country of residence. The transportation modes for TFWs can plane, train, boat, car, bus, etc. Employers can recover some of these costs through payroll deductions in all provinces except British Columbia. The employment contract entitled Agreement for the employment in Canada for SAWP specifies the maximum amount that employers can deduct.

Employers must keep records of all transportation costs paid for a minimum of 6 years. Records may include invoices, receipts, flight itineraries, tickets, etc. Employers can use these documents as evidence when they apply for an LMIA or for an inspection.

Day-to-day transportation

Employers must provide to the TFWs free roundtrip transportation. Employers need to ensure transportation between on-site or off-site accommodation and the workplace.

Housing

Employers must provide TFWs with adequate, suitable and affordable housing as defined by Canada Mortgage and Housing Corporation. Housing may be located on the farm or off-site. Employers must ensure that the occupancy rate for each unit does not exceed the maximum allowable occupancy rate. Employers must also ensure that sufficient accommodation is available for all TFWs. They also need to guarantee the number of accommodation places per approved housing from the date of arrival to the date of departure.

Housing inspection

Employers must provide proof of inspection of the off-site or on-farm accommodation. The appropriate provincial, territorial or municipal authority must conduct the inspection. An authorized private inspector with appropriate certifications may also conduct the inspections. The private inspector or the competent authority may not detain an official format for the housing inspection report. In such case, employers must ensure that they use Schedule F to report the results.

Effective January 1, 2018, new requirements are mandatory in order to obtain a decision. These requirements ensure that:

  • the housing provided to temporary foreign agricultural workers has been inspected
  • all conditions on the housing inspection report have been addressed

These additional requirements will include that the housing inspection report must:

  • have all relevant sections completed
  • indicate the maximum number of workers permitted per approved accommodation
  • indicate that the housing has been inspected in the last 8 months prior to the date the LMIA application is received

Note: An employer may re-apply for TFWs replacement. The same inspection report can then be used, even if it is more than 8 months old.

Employers in British Columbia must:

  • use the British Columbia Agriculture Council (BCAC) housing inspection form, and
  • have the housing inspection conducted by a BCAC sanctioned inspector, authorized to conduct housing inspections

Failure to meet the requirements for the housing inspection report without justification will result in an incomplete status for the LMIA application.

The Department will accept a housing inspection report with a “pass with conditions” status for processing the LMIA application. However, there will be no decision rendered until the employer addresses all conditions in the housing inspection report and provides evidence of it.

Employers are responsible for any costs that may be associated to having the housing inspected. Under no circumstances can employers recover these costs from the TFW.

Important: Please note employers who are using commercial accommodations 3 stars or above are not required to submit an HIR.

Health and workplace safety

Health insurance

The contract for employment in Canada for Seasonal Agriculture Workers includes private health insurance that covers emergency medical care for any period during which the TFW is not covered by the applicable provincial health insurance system.

However, employers must ensure that all TFWs register for provincial/territorial health insurance. The employees must register as soon as they become eligible. The waiting period to be eligible for the provincial/territorial health insurance is available on the Ministry of Health web sites for each province/territory.

Note:

Employers hiring TFWs from Mexico must submit payments to Great West Life Assurance Company. Employers can recover these costs through payroll deductions.

The liaison officer for the foreign government will provide instructions and assistance to employers regarding these deductions.

Workplace safety insurance

Employers must always ensure that the employees are covered from the provincial/territorial insurance provider, where required by law. Provincial or territorial legislation may allow some employers the flexibility to choose the private insurance of their choice. However, the employer must ensure:

  • that any private plan chosen provides the same level of compensation to that offered by a province/territory (same or better coverage)
  • that all employees on the worksite are covered by the same provider

Employers enquiring about private insurance plan equivalency should contact the provincial/territorial workplace safety authority.

Coverage provided at no cost by the employer must be in effect on the first day the TFW works in Canada. The employer must not recover costs from the TFW.

Pesticides and chemical use

Employers using pesticides or other hazardous chemical must follow provincial/territorial rules. They must notify workers of pesticide and chemical use and provide to workers:

  • free protective equipment
  • appropriate formal and informal training
  • supervision where required by law

SAWP Contract

The Seasonal Agricultural Workers Program has a standard, non-modifiable contract. The contract does not need to be included in your application. Employers are however required to have a copy of the contract signed by both the employer and workers on file in case of an inspection.

The employment contract also requires the signature of the liaison officer for the foreign government and the TFW identified on the LMIA application. Employers do not need to know the TFWs' names prior to their arrival in Canada. Employers must ensure to provide a copy of the employment contract to TFWs. The TFWs must sign the copy of this contract on the first day of work. Employers must provide copies of contract in English or French and Spanish.

The purpose of the employment contract is to specify each party's rights and obligations. It also allows ensuring that all parties understand and agree to the working conditions and their respective responsibilities. In the event that differences arise between the employer and the TFW, the contract will guide the resolution of disputes. The parties may contact the Ministry of Labour in the event:

  • of demonstrable breaches of the employment contract, and
  • where no resolution, including possible compensation, has been made

Employment contract in Canada for the Seasonal Agricultural Worker Program:

Important:

Beginning September 26, 2022, all employers seeking to hire foreign nationals under the Temporary Foreign Worker Program (including under the SAWP) will be required, at the time of their Labour Market Impact Assessment application, to agree to have a completed and signed employment agreement with each foreign worker on or before the first day of work.

The employment agreement must include the following information and be the same as set out in the offer of employment:

  • information about the job offer (for example job title, description of main job duties)
  • information about wages, including overtime pay, and
  • information about working conditions (for example expected work schedule, hours of work, vacation and other benefits)

The employment agreement must be drafted in either English or French, as preferred by the foreign worker, and be signed by both the employer and the foreign worker. The worker must be provided a signed copy of the agreement. In addition, where possible, the worker should be provided a copy in their native language.

You can use this sample employment agreement (under development), or develop your own, provided it contains all the necessary information.

Employers must maintain comprehensive employment records that fully document adherence to the employment agreement throughout the duration of the employment.

While SAWP employers are currently required to have an employment contract with their workers (Mexico and Caribbean), these contracts DO NOT currently contain all of the required employment agreement information, required as of September 26, 2022 under the Immigration and Refugee Protections Regulations. Therefore, until contracts changes can be made to include all the necessary information, employers are required to have an additional employment agreement with their workers that meets all the above noted requirements.

Union consultation

Although it is not a mandatory requirement, if the position being filled by the foreign worker is unionized, it is recommended that employers:

  • work actively with union representatives to recruit unemployed Canadians and permanent residents
  • consult the union on its position regarding the hiring of a foreign worker for the available job
  • confirm that the conditions of the collective agreement (for example wages, working conditions) will apply to the foreign worker

Note:

  • ESDC/Service Canada may contact the union for more information
  • The position offered to the foreign worker cannot affect current or foreseeable labour disputes at the workplace, or the employment of any Canadian or permanent resident workers involved in these disputes
  • During LMIA assessment, if it is determined that hiring TFWs is likely to adversely affect the course, the outcome, or the settlement of any labour dispute, you will receive a negative LMIA decision

Transfer of seasonal agricultural workers

Employers can transfer a worker from one farm to another, provided the employer has:

  • the worker's consent
  • prior written approval from the foreign government representative in Canada
  • prior written approval from ESDC/Service Canada

The transfer provision is included in the employment agreements for workers from:

  • Mexico
  • participating Caribbean countries

Note: There are no work permit fees when transferring TFWs between employers. The fees have already been paid prior to the workers' arrival in Canada.

Illegal transfer of workers

Employers cannot informally transfer or share TFWs from one employer to another. These actions contravene sections 124(1)(c) and 125 of the Immigration and Refugee Protection Act (IRPA). These practices are punishable by a fine of up to $50,000 and imprisonment.

Business legitimacy

Employers applying must supply documents to demonstrate that their business and job offer are legitimate.

Work permit fees

Seasonal agricultural workers are responsible to pay for their work permit fees directly to Immigration, Refugees and Citizenship Canada.

Third-party representatives

Employers may use the services of a third-party, but are not required to do so. The third party is a person or an organization who may represent them in completing a SAWP application. Employers who choose to use the services of a third party must pay all associated fees and meet all requirements.

Representatives assist employers by providing services, such as:

  • explaining and providing advice on the Temporary Foreign Worker Program (TFWP)
  • completing and submitting the application form and all required documents
  • communicating with ESDC/Service Canada on the employer's behalf
  • representing the employer during the application process

Employers who wish to use the services of a third-party representative, paid or unpaid, must complete the appropriate section of the LMIA application form. Employers must identify their representative and not simply the firm/organization employing this person.

Paid third-party representatives

Paid representatives represent or assist employers in exchange for compensation (money, goods or services). These representatives must be authorized under section 91 of IRPA. They must be members in good standing:

  • a Canadian provincial/territorial law society, or a student-at-law under its supervision
  • the Chambre des notaires du Québec
  • the Province of Ontario's law society as a paralegal
  • the Immigration Consultants of Canada Regulatory Council (ICCRC)

Representatives must detain authorization to represent employers or to give them advice on immigration matters. Employers should consult the IRCC website to verify the authorization of a specific representative.

If a paid representative does not have proper authorization under the IRPA, ESDC/Service Canada will continue to process the application, but will communicate with the employer directly. The employer will be required to submit a copy of a signed letter stating that they will no longer use the services of the original representative. Employers must provide this letter before they can:

  • hire another paid authorized representative
  • work with an unpaid representative

Unpaid third-party representatives

Individuals who represent employers for no consideration (no fee or other compensation) are not subject to any restrictions under IRPA. These individuals are usually family members, non-profit or religious organizations. These individuals or organizations assist employers who may not be able to complete an application.

ESDC/Service Canada:

  • reserves the right to contact employers directly when further information or documentation is required
  • will not mediate a dispute between an employer and a third-party representative
  • will not communicate complaints to a regulatory body on an employer's behalf

Note: Employers who wish to file a formal complaint against their representative should contact the appropriate regulatory body for example:

  • the provincial law society
  • the Chambre des notaires du Québec
  • the ICCRC

For additional information on how to file a complaint, visit IRCC' website

Recruiters

A recruiter or anybody recruiting for the employer is someone who:

  • finds or attempts to find an individual for employment with the employer, or
  • assists another person in finding or attempting to find an individual for employment with the employer, or
  • refers a foreign national to another person who finds or attempts to find an individual for employment with the employer

Some provinces and territories have specific requirements for recruiters and recruitment activities. It is your responsibility to ensure you comply with those requirements. As an employer, you are also responsible for the actions of anyone who recruits on your behalf.

New employers

Employers who have not employed a temporary foreign worker in the past 6 years prior to submitting a LMIA application will be subject to a review.  The employer must demonstrate that they made reasonable efforts to provide a workplace that is free of abuse and that they were not an affiliate of an employer who is ineligible for the TFW Program or in default of any amount payable in respect of an administrative monetary penalty.

A workplace that is free of abuse includes

(a) proactive efforts made to prevent workplace abuse
(b) reactive measures taken to stop abuse

An affiliate includes an employer that is controlled by another employer

(a) 2 employers that are under common control, or
(b) employers that are not operated at arm’s length.

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