Review of wages, occupation and working conditions provided to previous temporary workers

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Under the International Mobility Program, and in accordance with subclause R200(1)(c)(ii.1)(B)(I) of the Immigration and Refugee Protection Regulations, officers processing Labour Market Impact Assessment (LMIA)-exempt, employer-specific work permit applications must assess that the wages, occupation and working conditions that the employer provided to previous temporary workers was substantially the same as what was included in the offers of employment on file with Immigration, Refugees and Citizenship Canada (IRCC), before issuing the work permit.

This review of the wages, occupation and working conditions can also be done after work permit issuance when a compliance inspection is conducted [R209.2].

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Overview

April 2011: Worker protections were introduced that required employers to provide their temporary workers with the wages, occupation and working conditions that were substantially the same as those offered.

December 2013: The protections were enhanced with the implementation of conditions imposed on the employer at the time of work permit issuance and consequences for non-compliance with those conditions.

February 2015: Employers are now required to submit their offer of employment directly to IRCC.

System changes

In addition to the February 2015 regulation changes, functionality in the Global Case Management System (GCMS) was changed. Work permit applications are now automatically associated to the organization (with the type “Regulatory employer”) when properly matched in GCMS. Officers can review the list of previous work permits issued for the employer in the “Associations – Applications & Cases” view tab on the “Organization & Entities” screen tab.

Review of previous temporary workers for a determination under subsection R203(5)

Officers can request information or documents directly from the employer regarding the wages paid, duties performed as per the National Occupation Classification (NOC) code or working conditions, during the work permit processing under subparagraph R200(1)(c)(ii.1). This information can be compared to the offer of employment with which the work permit was associated on file with IRCC.

The officer should place the application on hold during the processing of a work permit application in the following cases:

  • the processing officer has any concerns that the employer did not meet any of the following commitments made in a past offer of employment:
    • employment in the same occupation as that set out in the foreign national’s offer of employment
    • similar but not lower wages and benefits than offered
    • working conditions that were substantially the same but not less favourable than those set out in their offer
  • information is available (such as a media article according to which an employer is being investigated for labour violations against their workers) indicating that there could be grounds to make a negative determination

Placing the application on hold

The officer should place the application on hold, create a verification activity in the system and refer the information to the Case Management Branch (CMB) Investigations and Exceptional Cases Division (IECD) for a determination under subsection R203(5). Once the CMB has made a determination, the processing office will be informed, and a final decision can be made.

A referral to the CMB IECD may result in any of the following:

  • A negative determination may be made based on information already obtained.
  • A decision may be made to request further information or documents to complete a more in-depth review.
  • The CMB IECD may advise the processing officer that current information is insufficient to warrant an in-depth review at this time.

If a negative determination is made by the CMB, the employer’s name will be added to the list of employers who have been non-compliant, and the work permit is to be refused under subparagraph R200(3)(h)(i).

Note: Only the CMB IECD has the designation to make a determination that the employer failed to meet their obligations and that there are no justifications as per subsection R203(1.1).

Example of a case of concern

Six months ago, a technology company hired an intra-company transferee. Two months later, they hired more temporary workers. While processing the new applications, the officer notices that according to the pay stubs of the first intra-company transferee worker, they received only 30 hours of work per week, but their offer specified they would work 40 hours per week.

In this case, the officer may determine that the employer failed to meet their obligations in regard to providing substantially the same wages or working conditions that were outlined in their offer of employment since a deficit of 10 hours per week could be considered “less favourable than” what was offered.

However, in certain circumstances, employers may be able to justify failing to meet their commitments concerning wages, working conditions and employment in an occupation through the justification provisions found in subsection R203(1.1). The assessment of justifications is conducted by the CMB IECD when information is referred to them for a determination. Processing officers are not delegated to make the decisions on justification.

Six-year review period

The 6-year review period is the period immediately before the day the application for the work permit is received by the Department or the Canada Border Services Agency (CBSA) at the port of entry.

Officers should review the “Associations – Applications & Cases” view tab on the “Organization & Entities” screen to determine if the organization providing the present offer of employment has employed temporary workers in the previous 6 years.

If the organization used temporary workers in the previous 6 years, the officer can request further information from the employer to confirm that they paid the wages and provided the occupation and working conditions offered to those previous employees.

Same occupation

If the employer had previous temporary workers within the 6-year review period, the officer must be satisfied that the occupation and duties performed by those temporary workers fell under the same NOC code as what was specified in the offer of employment provided.

The officer who processed and approved the previous work permits should have confirmed that the main duties entered in the “Job Details” section of the offer of employment form matched the occupation specified while reviewing the offer of employment information in the previous temporary workers’ offers of employment.

Wages (substantially the same but not less favourable)

“Substantially the same, but not less favourable, wages” means that wages paid to previous temporary workers cannot be less than those stated  in the offer of employment on which the previous work permit was based.

Note: Wages under the International Mobility Program (IMP) must meet the minimum wage requirement in the province of employment as per the condition to meet federal and/or provincial laws.

The offer of employment form requires the input of hourly wages in Canadian dollars. Temporary workers can be paid in Canadian currency or in another legal currency, as long as they are paid the Canadian equivalent wage stated in the offer of employment throughout the period of employment. The foreign currency should be noted in the offer of employment information, in the “Alternate compensation scheme” field.

Wages paid in a foreign currency must have been verified at the time of the work permit application to ensure they meet the requirements of the minimum provincial or territorial wage laws.

Working conditions (substantially the same but not less favourable)

Working conditions may include non-wage-related remuneration benefits and entitlements specifically detailed in the offer of employment, such as the following:

  • location of employment
  • statutory holidays, sick days and vacation days
  • hours of work (including overtime)
  • transportation costs (where applicable)
  • accommodations, conditions and costs (where applicable)
  • health or medical insurance
  • other non-taxable benefits

Many other working conditions and workplace standards are governed by provincial and territorial legislation, such as the following:

  • obligations around dismissals and rights to file complaints
  • occupational health and safety regulations and recruitment laws

Employers of foreign workers must also comply with these laws in order to meet IMP requirements.

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