Temporary Foreign Worker Program Review – Attention Ministers Mihychuk and McCallum – Part 4

This is the fourth and final blog in a 4 Part series that examines the TFWP in depth and proposes why Express Entry is the solution for all that ails the TFWP. Read, comment, criticize or praise. The purpose of this blog is to create dialogue.

Transitioning from reliance on the TFWP to adopting Express Entry is not a stretch. 

Currently, any candidate with an LMIA support Job Offer is virtually guaranteed to be drawn from the Express Entry pool and receive an Invitation to Apply for permanent resident status in Canada. One of the primary purposes of Express Entry is to ensure that special priority is given to candidates that fill labour shortages in the country.

Whether you are a Rocket Scientist or a Food Service Supervisor, if your job offer from a Canadian employer is supported by an LMIA, your chances of obtaining permanent resident status in Canada skyrockets. Regardless of your occupation, provided it is considered to be “skilled work” you have an equal opportunity at the golden ticket to permanent resident status.

For many foreign nationals seeking to immigrate to Canada from countries where economic opportunity is limited, finding an employer willing to obtain a Permanent Labour Market Impact Assessment (PLMIA) is a lot like the experience of Charlie in the Warner Bros. movie “Charlie and the Chocolate Factory.” Finding an employer with a PLMIA supported job offer is like Charlie finding that last “golden ticket” in his Wonka Bar.

Currently, the golden ticket route requires an employer to show there are no Canadians or permanent residents of Canada available to fill the position before the LMIA can be granted. In essence, the government has superimposed the TFWP requirements on the Express Entry regime and given special priority to these candidates by awarding them a whopping 600 out of the maximum 1200 CRS points for their super charged Job Offer. With ITAs being granted consistently to candidates below 600 points, the government has sent a message that any skilled worker seeking to immigrate to Canada is welcomed with open arms if they can show their arrival in Canada is not going to cause a Canadian to lose an opportunity for work.

Some may say this transposition of the TFWP onto the Express Entry regime is a bad thing.

However, I believe it actually opens the doors wide open for Express Entry to truly replace the TFWP as the primary option for employers.

The only challenge is that the government is going to need to create some incentives for employers to “choose” Express Entry over the TFWP.

Why?

Because it is very clear that “bad employers” will not want to part with the TFWP easily. After all, if they bring in a foreign worker under the TFWP, they control that worker. If that worker comes in as a permanent resident of Canada, they are a “free agent” and the employer has no more power over them than any other Canadian employee.

I believe it is for this exact reason that the Express Entry system is the answer when it comes to all that is wrong with the TFWP. However, let me start by explaining what permanent resident status means to each of the stakeholders involved (foreign workers, employers, and finally the government)

Express Entry – What’s in it for the foreign national?

It means labour mobility – the ability to work “condition free” anywhere in Canada pursuant to section 6 of the Charter of Rights and Freedoms.

It means the foreign worker is no longer tied to an employer unless “they” want to continue working for them.

It means their future in Canada is not determined by their ability to keep their employer happy.

It means no more exploitation of the vulnerable – if an employer treats you like garbage, you move on to another employer.

It means they as  newly landed permanent residents are free to enjoy virtually every benefit a Canadian citizen enjoys except the right to vote.

Simply put….it means no more abuse at the hands of bad employers. And what foreign national would not jump at the chance to have control over the lives and their future in Canada. To no longer have to feel trapped in a job because it is the only means for them to be able to continue providing for their families back home…and most importantly, the only means by which they can obtain permanent resident status in Canada.

Express Entry – What’s in it for the good employers?

Clearly the Express Entry process is pretty awesome for a newly landed permanent resident of Canada; however, what’s really in for the good employers? I just want to remind you that there is nothing attractive about Express Entry to “bad employers.” It undermine their position of power and forces them to have to work to keep their employees.

Employers complain that if they put in the time and resources to bring someone here as a permanent resident of Canada, there is no guarantee they will stay with them. My response, to this concern is:

“then create an atmosphere in which they want to stay”

In the old TFWP system, the bad employers were rewarded because they didn’t have to be good. They knew the foreign workers were tied to them for as long as they could drag things out until they obtained permanent resident status. This would not be the case in the new world of Express Entry because:

“bad employers are punished for being bad employers.”

And who punishes them?

Not the government. Not the Integrity Services Branch Officers of ESDC.

The market does.

If a bad employer tries to treat their new PR like they did within the TFWP, the new PR will not last a month with that employer. They will move on to greener pastures where they are treated better….

…better wages, better working conditions, and better opportunities with better employers….good employers!

For years we have listened to the President of the Alberta Federation of Labour, Gil McGown slag the TFWP. One of his chief gripes was the perceived downward pressure on wages. When a foreign sourced worker comes through the Express Entry regime with an official Express Entry Job Offer, wages are no longer an issue. The market will dictate what that new PR will get paid.

Yes, I know that the LMIAs that support these Express Entry Job Offers are approved at the prevailing wage. However, once a foreign national becomes a permanent resident of Canada, the conditions imposed through the LMIA are unenforceable against the employer and the new PR.

So theoretically, much to Gil’s chagrin, an employer could pay the newly arrived PR minimum wage if not otherwise governed by a collective agreement.

However, the reality is that very few new PRs would put up with that for long. The market would make the correction because these new PRs are free to explore every opportunity available to them. And that includes telling an abusive, underpaying, bad employer to take a hike.

See…..good loyal workers are not easy to find these days and with complete labour mobility, the new PR would likely have no trouble finding a new job that paid more. So if bad employers are not able to keep these newly hired PRs at the low wages they are offering, guess what happens?

Surprise, surprise…..wages go up!

And if bad employers are unable to keep their newly recruited PRs, and presumably unable to entice Canadians to work for them, guess what happens to bad employers?

They are put out of business.

I can not see any scenario where shutting down bad employers is harmful for our economy.

Bad employers are inevitably replaced by good employers. Employers who treat their workers with respect and in turn earn their loyalty. Loyal employees care about their jobs and are far more productive than those who are simply showing up to collect their pay cheque. Good employers are rewarded for being good employers because they no longer have to compete against bad employers that grind their profits out of their employees through oppression, abuse and exploitation.

Now what good employer doesn’t like a level playing field?

Express Entry – What’s in it for the Government

But a level playing field only benefits the employers. What about the government? Why does it makes sense for the government to entice employers to use Express Entry over the TFWP?

Remember what I said about the dog barking and barking, but never biting?

Well……with Express Entry as the primary tool for meeting our labour shortages, why do we even need a guard dog in the first place?

If foreign nationals are coming to fill jobs in Canada through Express Entry, they come as permanent residents. The entire need for a robust enforcement regime completely washes away. Each of these newly landed PRs are strategically serving the dual purpose of filling current labour shortages as well as counting towards our annual immigration levels planning targets.

The government was going to be bringing these folks in under one economic category or another anyways, so we might as well get rid of the pain and suffering that accompanies the TFWP and bypass the middle man by recruiting them directly into PR status.

Think of the millions of dollars that have been wasted on the enforcement arm of the TFWP. I am not going to rehash all of the reasons I gave previously for its ineffectiveness and misguided priorities. Suffice it to say that if foreign workers were instead brought in directly as PRs, there would be no need for a naughty list, employer compliance reviews, inspections, monetary penalty regimes, an online fraud reporting tool, or even a robust Integrity Services Branch.

As a side note, Immigration lawyer, Betsy Kane, of Capelle Kane Immigration Lawyers in Ottawa, prepared a great blog on the Employer Compliance Review process and provided an ESDC Inspection Document Checklist that is a great resource for assisting employers going through an inspection. So if you are an employer currently going through an inspection, definitely check out this blog.

Each province in Canada has their own Employment Standard Branch, so the position of Integrity Services Officer with ESDC becomes almost redundant. I wonder if the Canada Revenue Agency would be able to give these officers their jobs back if these positions became obsolete?

Imagine what Canada would be like if the Minister of Employment, Workforce Development and Labour, The Honourable MaryAnn Mihychuk, could forget about the TFWP and instead focus all of her energies on the top priorities set out in her Ministerial Mandate Letter from Prime Minister Trudeau.

As she undergoes her current review of the TFWP, I am not surprised that she has been somewhat vocal in her desire to simply scrap the whole thing. Prime Minister Trudeau gave her a very clear mandate on what she was expected to accomplish within her portfolio. Noticeably, overhauling the TFWP was not on her list.

One of my colleagues made one of the best suggestions I have heard in a long time. She suggested that given Minister Mihychuk’s mandate, the TFWP is likely better suited to be slotted within the mandate of Minister John McCallum and his Department of Immigration, Refugees and Citizenship Canada than within her portfolio of Employment, Workforce Development and Labour.

I couldn’t agree more…..and suspect both Ministers would likely not disagree either.

One huge problem – Express Entry is not open to low skill workers

However, there is one critical component to the entire Express Entry discussion that must be addressed. Only “skilled workers” are current eligible to participate in Express Entry.

So all of my wonderful eloquence regarding the virtues of Express Entry in protecting the vulnerable, punishing the bad employers and saving the government millions of dollars in their feeble attempts to enforce the TFWP are all pretty much useless unless low skill workers are somehow accommodated within the Express Entry regime.

Under the Express Entry system, the only pathways to PR are through the Federal Skilled Worker Program, the Canadian Experience Class, the Federal Skilled Trade Program, or a participating Provincial Nominee Program. None of these programs contemplates someone with only low skill work experience. As such, a new set of criteria would have to be created and tailored specifically to low skill workers with LMIA supported Job Offers.

If I tried to provide a comprehensive overview of what a low skill Express Entry program could look like, this blog would likely break all records for blog length and result in no one reading it. It’s likely many people have already given up before we got to the good stuff.

However, as I stated previously, my goal in writing this blog is to stimulate discussion.

I am going to set out below two simple suggestions that if considered, could contribute to a system that may just work for all stakeholders. If you like these suggestions, then let me know. If you have alternative ideas that you would like to share, leave a comment below, or better yet, leave me a digital voice message by clicking on the “Ask an Immigration Question” on the right side bar of the CanadianImmigrationPodcast.com website.

There is nothing better than an open source think tank for resolving the difficult issues of the day. So don’t be afraid to sound off. This should be fun. For any of you daring enough to leave a voice message, I will select the best ones and share them with everyone on a Podcast Episode I intend to dedicate entirely to this topic.

Maybe I could get Minister Mihychuk to join me to discuss her thoughts on the topic as well. (Yes I know there is about a .00001% chance of that happening).

Here are my two suggested strategies for replacing the Low Skill TFWP with the Express Entry system.

1. First look to the Provincial Nominee Programs to accommodate low skill workers through special Express Entry Streams

Some of our Provincial Nominee Programs have experience administering low skill (semi-skill) streams that are driven by employers. These programs are traditionally focused on transitioning low skill foreign workers into PR status (TFW flips) when they have gained a certain amount of work experience in that province. However, with some encouragement from the Feds, some Provinces may be willing to work with industries experiencing low skill shortages to issue nominations that are specifically designed for the fast track Express Entry process.

One point of contention has always rested with the number of nominations granted to a Province each year. For Provinces such as Alberta where low skill foreign workers have formed a significant portion of the AINPs annual quotas, any discuss about the 5500 current allocations going to Express Entry has been met with considerable resistance. However, by allocating additional nominations to the AINP for the sole purpose of a Low Skill Express Entry program – this may just be something Brad Trefan, Director of the AINP just might be willing to entertain.

In fact, the AINP has already experimented with an Alberta Experience Class that opened the door for any low skill worker with Alberta work experience to qualify for nomination provided they had a sufficient level of English language ability.

This option is entirely doable if the PNPs were granted additional allocations for this purpose. However, I’m just not sure whether or not Minister McCallum would be willing to do so. In previous speaking engagements he has reiterated that immigration is a Federal program and he is reluctant to allocate additional nominations to the provinces when they already form a sizeable portion of the economic immigration quota. In Season 1 Episode 13 of the Canadian Immigration Podcast, I shared some of the highlights from Minister McCallum’s speech to the National Immigration Section of the Canadian Bar Association at our annual conference held in Vancouver this year. Minister McCallum was pretty clear that no additional allocations to the PNPs would be coming anytime soon!

2. Create a Federal Low Skilled Worker Program (FLSWP) within Express Entry

There is nothing preventing the government from creating a program similar in kind to the Federal Skilled Worker Program where PLMIA supported Job Offers are a prerequisite to eligibility. In order to ensure candidates have the greatest chance of success upon arriving in Canada, a separate FLSWP selection grid could be created to target candidates with human capital factors ideally situated to success within the program (language, age, education, and work experience).

Further, in order to ensure employers do not waste time obtaining PLMIAs for candidates that do not meet the minimum threshold for the FLSWP, some form of mandatory mechanism could be put in place to ensure that candidates are pre-approved for the FLSWP before an employer can start the PLMIA process.

Now if only there was some form of “government sponsored employer/ employee matching service” that could be used to connect pre-approved candidates with Canadian employers.

Oh that’s right…..there already is an e-Harmony for employers and employees right under our noses. Maybe the FLSWP could actually bring life into the Job Match system that has turned out to be a wholly ineffective tool for matching employers with employees.

Closing comments and tying off loose ends

I don’t want the TFWP shut down for skilled workers, just low skilled

Despite my souring on the TFWP, I want it to be known that I am not calling for a complete shut down of the TFWP. I feel that it has a vital role to play within the ranks of skilled workers including specialized technicians and service providers, professionals, and most importantly senior managers and executive level positions.

However, I will go on the record by stating that I would not have a problem if the low skilled (low wage) program was axed in favour of a direct pathway to permanent residence for these foreign nationals filling low wage positions.

I honestly believe it would be good for our economy and good for our country generally. Especially if the PLMIA regime continued to ensure these low skill candidates are filling positions that Canadians simply do not want to work in.

The only exception I see to scrapping the low skill program is the Seasonal Agricultural Worker Program (SAWP) which really kick started the entire low skill program in the first place. I am not sure how else to manage the needs of agriculture without retaining this program. However, with all of the new found time Integrity Service Branch Officers should have on their hands, they could allocate this time to conducting site visits on the farms to truly make sure these employers are behaving themselves.

If Minister Mihychuk scraps the TFWP altogether, expand the IMP to accommodate

I also want to go on record by stating that if the TFWP were to be scrapped entirely, then all of these skilled positions need to be accommodated within the International Mobility Program (IMP).

The Significant Benefit (C10) category could be expanded to include a broader definition of significant benefit. Further, for specialized service providers, owner/operators and other unique situations, it would not take much to accommodate for them within the IMP as well.

However, for all other skilled workers, the answer is simple.

Encourage employers to recruit foreign nationals to fill areas of critical skill shortage through the Express Entry system.

The employer has to go through the same LMIA process regardless of bringing the foreign national in as a foreign worker or a permanent resident. All of my arguments for doing so support this natural conclusion. I am also pleased to know that Minister McCallum also supports this conclusion as outlined in previous blogs.

Ultimately, only time will tell what the latest overhaul to the TFWP will look like. With any luck, the government will read this blog, examine the numerous comments that will most assuredly be left below and develop a solution that solves everyone’s concerns

……..as long as that solution is Express Entry.