The Temporary Foreign Worker Program (TFWP) and allegations of abuse
Immigration Canada is once again being accused of failing to protect Canadian workers by allowing big fast food chains, such as McDonalds Canada to hire underpaid foreign workers in favour of Canadian workers. The new allegations also paint the grim reality of how the foreign worker program is also failing to uphold Canadian values and treat foreign workers at the same standard as Canadians.
In recent weeks, news of serious allegations of abuse of the Temporary Foreign Worker Program, centering McDonalds Canada have surfaced. This on the heels of a year where the program was given negative publicity after a number of news came out accusing the program of failing to measure up to the standards that former Immigration Minister and now Employment Minister, Jason Kenney and the Canadian Government have repeatedly said it wants to uphold. In April of 2013, there was a public outcry over Royal Bank of Canada replacing a small group of Canadian staff with temporary foreign workers. Ottawa in turn, announced several measures intended to close loopholes in the program. They included temporarily suspending the accelerated labour market opinion process, which allowed approved employers to bring in foreign workers faster, and removing an option that allowed employers to pay foreign workers up to 15 per cent less than the average comparable wage in the region.
The Government of Canada has decided in the midst of these latest allegations, to launch an extensive investigation in order to determine the facts and decide whether or not actual abuse of the Temporary Foreign Workers Program has been committed by the Restaurant Industry and its employer participants. The Labour Market Opinions in this area and industry have therefore been suspended, and employers in question have been given notice of the pending investigation into the abuse of the Labour Market Opinion process.
This decision has taken many by surprise, including businesses as they decried a lack of consultation and said the move would force some employers to close shop. There are also the thousands of foreign workers whose work permits are about to expire and they are not able to apply for an extension and may be forced to leave Canada. This latest spotlight on the Temporary Foreign Worker Program has also shed light to what many see as abuse of foreign workers who receive a lower average salary than a Canadian or a permanent resident.
“I knew a shoe was going to drop, but this was both shoes. This is a far bigger reaction than what I thought,” said Dan Kelly, head of the Canadian Federation of Independent Business.
“In the minister’s province of Alberta many small businesses will teeter on [the brink of] survival based on this decision.”
Jason Kenney said his office will not process any new or pending labour market opinion applications in the food sector. The opinions are required before permission is granted to hire a temporary foreign worker. As well, any restaurant that has already obtained an LMO but hasn’t yet filled the position will be unable to do so.
“Abuse of the Temporary Foreign Worker Program will not be tolerated,” Kenney said in the statement.
Ian Tostenson, president of the B.C. Restaurant and Foodservices Association, said he agreed the program needs review but that Kenney has overreacted. “There are a lot of small business people in British Columbia who are wondering what this means for them. It’s chaos. We would have really liked a heads up.”
Vancouver based Immigration Consultant and managing director of CICS Immigration Consulting Inc., Alex Khadempour, also agreed that a review of the program is needed. However, he believes a bigger issue needs to be looked at and talked about. “Do Canadians want to continue to go towards the direction where many foreign workers, especially in certain sectors, being treated as second class? Not only are we seeing a declining working environment, including lower pay, but we are also seeing the Canadian government closing the doors on them becoming permanent residents.” His comment refers to the recent changes in the Canadian Experience Class, a permanent residency program, where food service supervisors where removed from the program.
Which Canadian Employers are directly affected by the moratorium?
To be affected by the moratorium, employers must meet 2 criteria.
The employer MUST be:
Classified under North American Industry Classification System 722, defined as establishments primarily engaged in preparing meals, snacks and beverages, to customer order, for immediate consumption on and off the premises. This subsector does not include food service activities that occur within establishments such as hotels, civic and social associations, amusement and recreation parks, and theatres. However, leased food-service locations in facilities such as hotels, shopping malls, airports and department stores are included.
Currently applying for LMOs for occupations related to specific National Occupational Classification codes(NOC 2006). List of NOC codes occupations affected by the moratorium in the Food Services Sector (NAIC 722):
- 6641 Food Counter Attendants, Kitchen Helpers and Related Occupations
- 0631 Restaurant and Food Service Managers
- 6212 Food Service Supervisors
- 6453 Food and Beverage Servers
- 6611 Cashiers
- 6241 Chefs
- 6242 Cooks
- 6252 Bakers
- 0611 Sales, Marketing and Advertising Managers
- 0621 Retail Trade Managers
- 0632 Accommodation Service Managers
- 0651 Other Services Managers
- 6211 Retail Trade Supervisors
- 6213 Executive Housekeepers
- 6214 Dry Cleaning and Laundry Supervisors
- 6215 Cleaning Supervisors
- 6216 Other Service Supervisors
- 6221 Technical Sales Specialists – Wholesale Trade
- 6251 Butchers, Meat Cutters and Fishmongers – Retail and Wholesale
- 6411 Sales Representatives – Wholesale Trade (Non-Technical)
- 6421 Retail Salespersons and Sales Clerks
- 6451 Maîtres d’hôtel and Hosts/Hostesses
- 6452 Bartenders
- 6484 Other Personal Service Occupations
- 6622 Grocery Clerks and Store Shelf Stockers
- 6623 Other Elemental Sales Occupations
- 6651 Security Guards and Related Occupations
- 6661 Light Duty Cleaners
- 6662 Specialized Cleaners
- 6663 Janitors, Caretakers and Building Superintendents
- 6681 Dry Cleaning and Laundry Occupations
- 6682 Ironing, Pressing and Finishing Occupations
- 6683 Other Elemental Service Occupations
Which Temporary Foreign Workers are affected by the moratorium?
Temporary foreign workers already in Canada who have a valid work permit issued under a Food Services Sector LMO may continue working as per their present work permit conditions.
Temporary foreign workers who have been approved for a work permit by Citizenship and Immigration Canada (CIC) but have not yet arrived in Canada will not be affected. They will remain eligible for a work permit at a port of entry, if they are otherwise admissible to Canada.
Foreign nationals who have not yet had a decision made on their work permit application will be affected. Foreign nationals who submitted their work permit application prior to the suspension will be notified that their work permit application is suspended until a final decision is made on the LMO.
Foreign nationals who apply directly at a port of entry, a visa post or inland office for a work permit after their LMO has been suspended cannot be issued a work permit based on that LMO.
What happens to a person who is currently in Canada and whose work permit from an affected occupational area is about to expire, and who was about to apply for an extension?
The LMO will have been suspended; therefore the processing of the work permit extension application will also be suspended until a final decision on the suspended LMO is made by ESDC.
When their original work permit expires, a person in this situation may have implied status if their work permit application was submitted prior to the expiry of their present work permit. This means that they will be able to remain in Canada and continue working for the same employer that appeared on their original work permit. People in this situation will continue to have implied status until a final decision is made on their work permit extension application.