CIMM - Temporary Foreign Worker Program - Mar 10, 2021
The Temporary Foreign Worker Program allows Canadian employers temporary access to foreign workers when qualified Canadian or Permanent Resident workers are not available, and ensures that foreign workers are protected.
Temporary foreign workers are a key source of labour, particularly in agriculture and agri-food, and ensuring their reliable entry and safe working conditions is key to the continued food security of Canadians and Canada’s broader economic recovery.
Early in the pandemic, a number of important steps were taken to protect the health and safety of Temporary Foreign Workers in response to COVID-19.
Temporary Foreign Worker Program Overview
The Temporary Foreign Worker (TFW) Program is labour market tested and requires employers to obtain a positive or neutral Labour Market Impact Assessment (LMIA) so that the employment of a TFW does not have a negative impact on the Canadian labour market. As a result, access to the TFW Program responds to changes in the labour market. The TFW Program also aims to be a last resort for employers once all other avenues to address shortages have been exhausted.
Aspects of the programs are administered by Employment and Social Development Canada (ESDC), Immigration, Refugees and Citizenship Canada (IRCC), and Canada Border Services Agency (CBSA). ESDC assesses LMIA applications, administers the employer compliance regime for TFW Program, and conducts onsite inspections for IMP. IRCC determines eligibility for work permits and administers the IMP compliance regime including some inspections. CBSA assesses admissibility at the ports of entry and issues work permits.
The Program is comprised of four streams, (1) High-wage, in which the wage offered is at or above the provincial/territorial median wage, (2) Low-wage, in which the wage offered is below provincial/territorial median wage, (3) Primary Agriculture which includes the Seasonal Agricultural Worker Program, (4) Global Talent Stream for in-demand Information and Communications Technology (ICT) / Science Technology Engineering Mathematics (STEM) occupations and unique and specialized talent.
While the program is open to all sectors, Primary Agriculture is the largest stream (57% of work permits in 2019), and focusses on the labour needs of farms, nurseries or greenhouses, both seasonally and year-round.
The stream is comprised of four sub-streams, in which job activities are related to on-farm primary agriculture. The most commonly used sub-stream is the Seasonal Agricultural Worker Program (SAWP), which is limited to workers from Mexico and 11 Caribbean countries for seasonal work of up to 8 months. Sending country governments are responsible for recruitment and health insurance. Employers must provide health insurance until provincial/territorial coverage is available, free housing (except in BC where there are deductions) as well as arrange and pay for round-trip transportation (although in some cases employers can recover some costs).
As well, the Agricultural sub-stream is open to workers from all countries for seasonal and full-year work and has the same NCL requirements as the SAWP. Employers must provide housing (can deduct $30/week for most workers, or for high-skilled workers, not more than 30% of wages) and provide round-trip transportation and health insurance where coverage is not available.
Support to Agriculture and Agri-Food Sector for timely arrivals
In recognition of the sector’s reliance on foreign labour, ESDC has implemented a number of administrative measures to support timely access to workers including priority processing of applications from agriculture and agri-food employers.
As of February 22, 2021, all air travelers, including TFWs, are required to take a COVID-19 molecular test on arrival at the airport, and another day 10 of their quarantine period.
The requirement for travelers to quarantine in a government-authorized accommodation (hotel) while they wait for the results of their arrival COVID-19 test is deferred for TFWs with work visas in key occupations for the agriculture, agri-food, and fish and seafood processing industry sectors until March 14, 2021.
This deferral will allow time for the Government to develop a tailored solution to accommodate an anticipated large volume of foreign workers in these occupations expected to arrive in coming weeks, and to ensure they can be safely quarantined and supported throughout the process.
In the interim, these TFWs will proceed to their usual place of quarantine provided by their employer under existing quarantine rules. Some of these workers will also be travelling further – to workplaces across Canada. The Government will also be working with provinces and territories to understand their needs and requirements.
With regards to ArriveCAN, the Government is exploring how to address the challenges facing workers in meeting some of the new reporting requirements. We need to ensure the new rules will work for everyone and keep Canadians and TFWs safe.
The Canada–Québec Accord relating to Immigration and Temporary Admission of Aliens relates to the selection of persons who wish to reside permanently or temporarily in Québec, their admission into Canada, their integration into Québec society, and the determination of levels of immigration to Québec.
As per this Accord, while Canada shall determine national standards and objectives relating to immigration and shall be responsible for the admission of all immigrants and the admission and control of aliens, Québec has rights and responsibilities with respect to the number of immigrants destined to Québec and the selection, reception and integration of those immigrants.
For the TFW Program, this Accord and its Annexes led to the requirement of Québec’s consent in order to admit into the province any temporary foreign worker whose admission is subject to Canada’s requirements relating to the availability of Canadian workers.
Québec is also made responsible under this Accord for:
determining jointly with Canada whether there is a Canadian citizen or permanent resident available to fill the position offered to the temporary worker; and
providing prior consent for the granting of entry to any temporary foreign worker whose admission is governed by the requirements concerning the availability of Canadian workers.
Both IRCC and ESDC have their own compliance regimes to inspect whether employers are meeting a program’s specific conditions. Service Canada conducts the majority of inspection activities for both IRCC and ESDC, and each department makes the final decisions on whether an employer complied with regulatory conditions for their program based on the Immigration and Refugee Protection Regulations (IRPR).
Inspections are triggered by factors including past non-compliance, or a reason to suspect. If found non-compliant, an employer may face bans, administrative monetary penalties and/or revocation of an LMIA, and have their employer name and violation posted on a public list.
Penalties range from $500 to $100,000 for each violation. These consequences for non-compliance with program conditions are the same under the two programs and are coordinated. Penalties responding to non-compliance to adherence of COVID-19 related measures can reach as high as $1,000,000.
Impact of COVID-19 on the Temporary Foreign Worker Program
Temporary foreign workers (TFWs) are a key source of labour, particularly in agriculture and agri-food, and ensuring their reliable entry and safe working conditions is key to the continued food security of Canadians and Canada’s broader economic recovery.
Early in the pandemic, a number of important steps were taken to protect the health and safety of TFWs in response to COVID-19. These include publishing guidance for employers and workers, the introduction of regulations which compel employers to meet new health and safety requirements and an associated compliance regime, funding for employers to offset the costs of meeting the new requirements, and regular communication and engagement with stakeholders and program users.
Under the Immigration and Refugee Protection Regulations, employers cannot prevent their workers from complying with Quarantine Act or any relevant PT public health requirements.
Employers must pay the workers for the initial isolation or quarantine period with wages that are substantially the same as those set out in the offer of employment.
Employers who provide accommodations are subject to further requirements, such as ensuring beds are two meters apart, providing cleaning supplies, and separating those who are isolating/quarantining with a bedroom and bathroom solely for their use a part from those who are not isolating/quarantining.
ESDC inspects based on these requirements using a targeted approach, and non-compliant employers are subject to penalties.
These actions were complemented by a number of additional measures in response to outbreaks on farms, such as funding migrant worker organizations to support workers affected by COVID-19, increasing capacity for inspections, enhancing Service Canada’s ability to receive and assess allegations of non-compliance, and funding to support farm employers to prevent and address COVID-19 outbreaks; among others.
Supporting facts and figures
The TFW Program constitutes a small portion of the Canadian labour force – 0.5% in 2019.
In 2019, temporary foreign workers were present in all provinces and territories, but most were in Ontario (33,000), British Columbia (23,000) and Quebec (23,000).
In fiscal year 2019-2020, 33,000 unique employers applied for at least one LMIA (note that many employers apply through more than one stream).
In 2019, the top 10 occupations by confirmed TFW work permits were:
General farm workers (38,000)
Nursery and greenhouse workers (14,000)
Home child care providers (5,000)
Transport truck drivers (2,000)
Food service supervisors (2,000)
Fish and seafood plant workers (2,000)
Home support workers, housekeepers and related occupations (2,000)
Labourers in food, beverage and associated products processing (1,000)
Harvesting labourers (1,000)
The top citizenships of TFWs, based on 2019 work permit data, are as follows:
South Korea (3,000)
Since 2017, approximately 42% of employers were initially found to be non-compliant with Program conditions. These (initially) non-compliant employers are directed by the Department to take corrective measures to bring them into compliance. Only about 3% of employers every year do not address the issues (or do not have an acceptable justification) and are found non-compliant with Program conditions.
In 2019-2020, 3,000 inspections were completed, 86 (3%) resulted in non-compliant findings, a total of $190,000 in monetary penalties were levied and five employers received a ban.
Worker Safety and Rights
The Migrant Worker Support Network Pilot in British Columbia was launched in late 2018-19, to provide direct support to temporary foreign workers to learn about and exercise their rights. To date, over 20 organizations have received funding through the pilot and have supported thousands of temporary foreign workers, both through orientation services at the airport as well as community-based services and events. Funding for projects delivered as part of the pilot is available until June 30, 2021.
On July 31, 2020, the Government announced an investment of $6 million in community-based supports to TFWs affected by COVID-19, for those outside of British Columbia, complementing the existing pilot in that province. Partner organizations have received funding to support workers across most regions of Canada, with a focus on those workers in the agriculture sector. Projects are in place until June 30, 2021.
Employers hiring for low wage jobs under the Temporary Foreign Worker Program are required (in policy) to provide workers who are not eligible for provincial or territorial health coverage with private health insurance, until provincial coverage is available.
While the eligibility criteria and waiting periods for provincial and territorial health insurance vary by jurisdiction, some provinces are temporarily extending coverage for COVID-19 related medical services to all residents of their province and waiving the waiting period.
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