Foreign workers: Assessing in the event of a strike situation

R200(3)(c) of the IRPR prohibits employers’ use of foreign workers (FWs) as strike-breakers. This interpretation is consistent with Canadian and provincial/territorial labour laws that protect the rights of those who are lawfully engaged in a strike or lockout.

The exception in R200(3)(c) allows a work permit to be issued if all or almost all of those on strike are not Canadian citizens or permanent residents of Canada, providing such issuance does not contravene existing provincial/territorial legislation.

FWs are entitled to be part of a lawfully authorized strike. Work permits cannot be revoked despite the occurrence of a labour dispute at the workplace. FWs can be authorized re-entry on an existing valid work permit as they are not applying for a new work permit and therefore, R200(3)(c) should not be applied.

In the case of a legal strike, FWs have several means of recourse, including:

• Waiting out the strike with minimal strike pay (like others in the same situation);
• Returning home; or
• Finding another position where there are identified shortages in the labour market and proceeding with the normal work permit application process.

If the FW is looking to find a new employer or to obtain secondary employment, they should be advised of the following:

• It is the FW’s responsibility to find a new employer and that employer’s responsibility to apply for a Labour Market Impact Assessment (LMIA) with Employment and Social Development Canada/Service Canada ( ESDC/SC).
• The normal process will be followed for both the LMIA and work permit applications.

If the FW is concerned about falling out of status during the strike:

• The FW should be advised to submit a completed Application to Change Conditions, Extend my Stay, or Remain in Canada to the address below, prior to the expiry of their current work permit. CIC will accept applications even though all requirements are not met at the time of submission. That is, the application should include all required documents and fees, with the exception of the LMIA. The FW should be advised to send the LMIA to the same mailing address once received.
• The Case Processing Centre in Vegreville (CPC-V) will log receipt of the application and then place the application on hold for four months. The FW will have implied status during this time.
• CPC-V should inform the Temporary Resident Program Delivery Division (TRPD) in OMC of the applications, including any available information on the employer/union. Please send the information indicating “FW-Strike Situation” in the subject line.
• OMC/TRPD will monitor the strike situation and inform CPC-V of any updates, including the end of the strike.
• If the FW provides a valid LMIA to CPC-V during the four-month period, CPC-V can finalize processing accordingly. CPC-V will not monitor the system for the presence of an LMIA.
• Four months after receipt in CPC-V, the application will be finalized by CPC-V, whether the strike is over or not. If the LMIA is still outstanding, CPC-V will contact the FW to request the LMIA, allowing 30 calendar days for reply. CPC-V will finalize processing once the outstanding LMIA is received, or after 30 days if no reply is received.
• In this process, ESDC/SC will continue to respect R203(3)(f), which states that one factor ESDC must consider when providing an LMIA is “whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.”