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IMMIGRATION AND TEMPORARY FOREIGN WORKERS

Susan Martyn Egan LLP, Business Immigration Lawyers Ernst & Young Tower, 1000, 440 2nd Avenue S.W. Calgary, AB T2P 5E9 Tel: (403) 206-5482 Susan.Martyn@ca.ey.com Mark Holthe Holthe Business Immigration Law 300, 515 7th Street South Lethbridge, AB T1J 2G8 Tel: (403) 328-1441 mholthe@hbilaw.com

Paper Prepared for Employment Law Conference Edmonton and Calgary, Alberta, March 9 & 17, 2009 Legal Education Society of Alberta

TABLE OF CONTENTS Page 1. RECRUITING TEMPORARY FOREIGN WORKERS.......................................... 1 (a) (b) (c) 2. The Labour Market Opinion Process ....................................................... 3 Work Permit Process ................................................................................ 7 Tips for Employers .................................................................................... 8

EMPLOYMENT STANDARDS LEGISLATION .................................................... 8 (a) Tips for Employers .................................................................................... 9

3.

NATIONAL SOCIAL BENEFITS PROGRAMS .................................................. 10 (a) Tips for Employers .................................................................................. 11

4.

ENFORCEMENT AND COMPLIANCE MEASURES......................................... 11 (a) Tips for Employers .................................................................................. 12

5.

FAIR TRADING ACT ......................................................................................... 13 (a) (b) Legislation............................................................................................... 13 Tips for Employers .................................................................................. 16

6.

IS THE DOOR CLOSING ON TFWS?............................................................... 16 (a) (b) Minimum Recruitment Requirements...................................................... 17 Lay-offs on the Rise ................................................................................ 17

7.

CONCLUSION................................................................................................... 18

Until recently, Alberta had been experiencing unprecedented labour shortage across all sectors. An equally unprecedented number of temporary foreign workers (TFWs) were admitted to the province to fill this labour gap. In 2008, a reported 39,177 TFWs were admitted to the Province of Alberta, which represents an increase of almost 33% over the 29,439 who were admitted in 2007. Currently, TFWs are estimated to constitute 1% to 2% of the total work force in Alberta. In light of current economic circumstances, employers are bound to have questions about their obligations vis--vis TFWs, particularly in the context of workforce reductions. Accordingly, it is important for employment lawyers to have some familiarity with immigration laws and policies so that potential immigration issues can be flagged and properly addressed with clients as employment advice is given. The purpose of this paper is to canvass a number of immigration issues that relate directly or indirectly to the practice of employment law in Alberta. We will provide a general overview of the issues associated with recruiting and retaining TFWs including rights and obligations under provincial employment standards legislation and national benefits programs. We will also address the new enforcement and compliance mechanisms for protecting the employment rights of TFWs, as well as cover the scope and application of the Alberta Fair Trading Act as it relates to third party recruiters. Finally, we will discuss the impact of recent immigration law changes on foreign workers in Alberta and offer our opinions as to the future of the temporary foreign worker program. 1. Recruiting Temporary Foreign Workers

TFWs are typically recruited either directly by an employer or through the engagement of a third party recruiting company or employment agency. Important rules and regulations governing third party recruiters in Alberta will be discussed later in this paper.

As a general rule, no person, other than a Canadian citizen or permanent resident, may work in Canada without valid authorization.1 Therefore, when recruiting TFWs from abroad, it is critical that employers ensure foreign recruits obtain the necessary work authorization to allow them to work in Canada. The work permit process is managed by Citizenship, Immigration and Multiculturalism Canada (CIC) in conjunction with Service Canada and the Canada Border Services Agency. To hire a TFW, employers must usually obtain a Labour Market Opinion (LMO) from Service Canada2 before the TFW can apply for a work permit. There exists a small number of LMO-exempt work permit categories which allow TFWs to apply for work permits directly without need for an LMO. Some of the more common categories include international agreements such as the North American Free Trade Agreement (NAFTA) and the General Agreement on Trade in Services (GATS) which facilitate the work permit process for some professionals, executives, and specialized personnel who are citizens of signatory countries. Other categories exist to facilitate the entry of select software developers, intra-company transferees, postgraduate students, international exchange students, and the spouses of skilled TFWs working in Canada.3 Where possible, LMO-exempt categories should be explored prior to resorting to the traditional LMO process. LMO-exempt work permits can typically be obtained in far less time and without the need for an employer to undertake costly recruitment efforts. However, most positions filled by TFWs in Alberta require an LMO.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s.30(1). Service Canada is the service delivery agency for Human Resources and Social Development Canada (HRSDC). HRSDC was previously known as Human Resources Development Canada (HRDC) when the Immigration Regulations came into effect. 3 Further details regarding these and other LMO exempt categories can be found in the FW 1: Foreign Worker Manual, online: Citizenship and Immigration Canada, http://www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf (last modified: June 11, 2008)
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