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.
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- Review of previous temporary workers for a determination under R203(5)
- When to refer a concern to Case Management Branch
- Six-year review period
- Same occupation
- Wages (substantially the same but not less favourable)
- Working conditions (substantially the same but not less favourable)
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.
Work permit applications are now automatically associated to the organization (with the type “Regulatory employer”) when properly matched in the Global Case Management System (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.
When to refer a concern to Case Management Branch
If an officer detects any anomalies or patterns of concern during work permit processing, issuance, or anytime thereafter, they are requested to submit the concern to Case Management Branch (CMB), Investigations and Exceptional Cases Division (IECD).
Tips received are investigated after the fact; referral to CMB should not delay processing.
Some examples of reasons for using the Tip Referral process:
- the processing officer has concerns or evidence of past non-compliance 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
- complaints received that the employer might not have complied with elements listed on the offer of employment, such as underpaying the foreign worker or forcing extra hours or duties
- concerns that an employer might have provided misleading information on an offer of employment, such as offering a job that did not exist to facilitate a PR application for the foreign worker
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.
If the employer had previous temporary workers within the 6-year review period, the officer can verify whether 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.
An increase in wages must be assessed for compliance as well, because it may result in a finding that the employer did not provide “substantially the same” wages if the increase would have affected the ability of the foreign national to qualify for the LMIA exemption.
Wages paid that were higher than those stated in the offer of employment may indicate a change in duties, which might point to a different occupation than was offered.
In cases where the employer promoted the foreign worker or otherwise changed their duties, the foreign worker must have received a new offer of employment and work permit before the change was implemented. If a new work permit for the promotion or change in occupation was not previously approved and the temporary foreign worker was working in an occupation other than what was stated on the offer of employment, this may constitute past non-compliance by the employer.
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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