Temporary Foreign Worker Program Review – Attention Ministers Mihychuk and McCallum – Part 3

In my last blog I spent some time pulling back the curtain on the government’s inability to properly enforce the TFWP. Instead of sending officers to actually check up on “bad employers” they decided to reduce the number of foreign workers in Canada by making the entire process virtually unnavigable. The only ones to truly suffer were the good employers. Let me explain why….

Transformation to an ultra bureaucratic and unintelligible system

Good employers are now faced with an LMIA regime that is ultra bureaucratic and laced with a whole host of completely arbitrary program requirements that set legitimate employers up for failure every time. At the time in which the program was overhauled and new arbitrary policies were put in place, the Conservatives were doing everything in their power to distance themselves from the TFWP prior to the election in the Fall of 2015.

I’ll be honest….the conspiracy theorist inside me can not help but feel there was a royal proclamation from the PMOs office that the number of foreign workers in Canada must be reduced prior to the election – and to do so at all costs.

What better way to reduce the number of foreign workers in Canada then to make the process so completely impossible to comprehend and entirely arbitrary such that an officer could refuse for virtually any ground including….

get this…..

they just didn’t “feel” there were labour shortages in certain industries

Steven Meurrens, an immigration lawyer in Vancouver, has written an excellent article on his blog “Meurrens on Immigration” where he provides a comprehensive overview of the Labour Market Impact Assessment’s recruitment requirements. Even after reviewing the internal directives on the blog which were obtained through an Access to Information Request, one can’t help but feel the entire process is beyond comprehension and designed, in part, to generate refusals.

Because there is no appeal mechanism for negative decisions, the only recourse for employers is to seek redress from the Federal Court. In the vast majority of cases, this is not a viable solution. It makes the most sense to simply re-advertise and try to address the officer’s written reasons for refusal in a second application. After all….with vague publicly released guidelines, the only concrete thing to go on is the reasons given by the particular officer who just finished rejecting your application.

However, since the TFWP was overhauled, more and more employers have chosen to challenge the unfairness that exists within the decision making process for LMIAs by filing Judicial Review applications. Although many of these JR applications are consented to by DOJ and sent back for redetermination by another officer, some do manage to work their way through to Federal Court for a binding decision.

In Canadian Reformed Church of Cloverdale B.C. v. Canada (Employment and Social Development), 2015 FC 1075 an employer in BC was successful in challenging the decision of an officer who refused their LMIA application because they failed to include a business address in their advertisements. You will recall that “business addresses” are one of the mandatory components to an acceptable advertisement within the minimum advertising guidelines.

O’Reilly, J. confirmed that ESDC’s guidelines on advertising where not law and could not be treated as such. By relying upon the advertising guidelines as the sole reason for refusal, the officer was improperly fettering their own discretion which resulted in the case being sent back to another officer for redetermination.

More recently,  O’Reilly, J.  was back at it again on the other side of the country in New Brunswick in the decision of Paturel International Company v. Canada (Employment and Social Development), where he once again found that an ESDC officer had fettered their discretion in relying solely on internal guidelines as the sole basis for refusing an LMIA application:

The officer’s reliance on EI data as the single source on which to base a calculation of the median wage in the industry, and to use that data as the sole basis to reject Paturel’s application, amounted to a fettering of the officer’s discretion. Therefore, the officer’s decision was unreasonable.

The thing I like most about this decision is that the courts are confirming that officers actually have to think and can not rely on their internal policy guidelines (the ones they do not release to the public) as the sole basis for refusing an LMIA application.

Turn down the intake of new applications and there will be fewer employers to investigate

So why in the world did the TFWP transform from something relatively predictable and fair, to one primarily focused on refusing applications?

For some reason, the government must have felt that it was easier to keep employers out of the program by making it increasingly difficult to obtain an approval instead of enforcing the rules once they got in.

I guess there is something to be said for this. However, with a program that relies upon employer attestation, there is nothing preventing bad employers from gaming the system by submitting fraudulent applications. In contrast, the good employers are being shut out because they attempt to follow the rules and see their applications refused based upon a series of extremely arbitrary and technical internal guidelines.

Some are probably wondering, how can a bad employer submit a fraudulent application and hope to get away with it given the government’s commitment to audit one in four employers every year. If employers are supposed to keep all of their records of recruitment for a period of six years, then theoretically every employer should be audited at some point in the future. Right?

Well the answer is pretty simple. Employers are supposed to keep copies of all of the resumes they receive during the recruitment process. If a bad employer wanted to game the system, all they needed to do was to toss out the resumes that matched the job they were advertising and only keep the ones that didn’t. In submitting the LMIA applications, the bad employers would need only disclose the mismatches and fraudulently attest that there were no Canadians or permanent residents qualified for the position.

The government would have no way of knowing whether or not the employer conducted legitimate recruitment efforts and would have to trust the employer or rely upon their own conflicting occupational outlook data to determine that the employer must not have been looking hard enough due to high unemployment rates within the occupation. Even a site visit could not catch outright fraud as described in this situation.

The low skill and high skill foreign worker programs should be split

The last knock I’ll give the TFWP relates to the one size fits all model. It doesn’t have to be this way.

For years stakeholders have been lobbying the government to split the TFWP into two distinct groups. The vast majority of abuse and exploitation (including serious non-compliance) is typically isolated within the low skill program.

Yes I know once again…..I am over generalizing things. However, whether I am relying upon my own anecdotal experience, or government sponsored statistical data, it doesn’t take a rocket scientist to come to the conclusion that the structure of the low skill program just lends itself to abuse.

I have yet to see a CBC Go Public piece on a poor engineer or finance manager who has been handed their monthly pay stub with a number written on it in pencil which represents the cash they are to pay back their employer. I’ve never even heard of a welder, pipe fitter or mechanic that has been forced to work endless overtime for no pay.

It just doesn’t happen. (ATTENTION: If you are a welder, pipe fitter or mechanic and this has happened to you or someone you know…let us know…comment below).

So why in the world does the government force employers of skilled workers to go through the same barriers as those that employ low skill workers?

In many cases, the hiring of a specialized technician, or senior manager allows a company to grow and actually create jobs. This is not some pipe dream, but a reality. It is for this reason that when the Immigration and Refugee Protection Regulations were enacted, the drafters built into the LMIA adjudication process a mechanism for approving an LMIA when the hiring of the foreign worker would create a neutral or positive effect on the labour market.

Yet, under the current regime, wages and labour shortage are the factors that get all the attention of officers during the adjudication process.

Section 203 of the Immigration and Refugee Protection Regulations sets out the factors the government is to taking into consideration when determining whether or not to grant an LMIA.

• Factors — effect on labour market

  (3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:

  • (a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;

  • (b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;

  • (c) whether the employment of the foreign national is likely to fill a labour shortage;

  • (d) whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;

    ….

Why in the world did (c) and (d) evolve into the primary factors and virtually dominate the assessment process? Were the officers not also charged with the responsibility of taking into consideration the virtues of (a) and (b)?

I think the answer lies in the fact that all foreign workers are treated with equal disdain.

Ouch…there I go again with these generalizations. Obviously, “all” is a little strong and I don’t seriously mean “all” in that all encompassing sense of the word. However, it is clear from the TFWP instructions posted on their website that the advertising guidelines “dominate” the assessment process and only in the very rarest of circumstances can an LMIA be issued without the employer having complied with the minimum advertising guidelines (which of particular note, are virtually identical for both low skill and high skill positions).

See for yourself….

Simply compare the high wage (skill) advertising guidelines with those set out for low wage (skill) occupations and you tell me the difference. Click on the links in the previous sentence and scroll down to the section entitled “Advertisement.“ …I would have included a screen shot, but the section is a little bit too wordy.

Okay…what did you see? Not much difference….right?

I can’t help but compare this exercise I just had you do with one of my favourite marketing campaigns from the early 80s – the Pepsi Challenge.

The high wage advertising guidelines might taste a little better than the low wage, but if you put them side by side in a blind taste test, you likely couldn’t tell the difference.

(okay that was a pretty weak analogy… but you get the point).

Now I’m not going to spend any more time discussing the merits of splitting the program into a low skill and high skill stream because that topic should really be saved for a future blog or podcast.

However, if what I am going to suggest next is not palatable to the government, then splitting the program is clearly the next best thing.

So let’s recap….

If the TFWP is not working very well,

foreign workers are being exploited,  and

Canadians are not being given the first crack at available jobs….

……then let’s take a serious look at a solution that solves all the problems.

And that solution is Express Entry!

But how?

Well, you’ll have to tune in to Part 4 which I’ll release on Monday….

….Sunday is not a day for writing, but a day for rest and spending time with my family that has not really seen much of me this past week.

oh…and don’t forget to share your thoughts below. I’d love to hear your perspective on the TFWP!