Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 24 - Evidence - November 20, 2014
OTTAWA, Thursday, November 20, 2014
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:28 a.m. to study the subject matter of those elements contained in Divisions 5, 7, 17, 20, and 24 of Part 4 of Bill C-43, A second Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures. TOPIC: Division 24
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I'm Kelvin Ogilvie from Nova Scotia, chair of the committee, and I'm going to ask my colleagues to introduce themselves, starting on my right.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Seth: Asha Seth from Toronto, Ontario.
Senator Enverga: Tobias Enverga from Ontario.
Senator Wallace: John Wallace from New Brunswick.
Senator Cordy: Jane Cordy from Nova Scotia.
[Translation]
Senator Chaput: Maria Chaput from Manitoba.
[English]
Senator Merchant: Pana Merchant, Saskatchewan.
Senator Beyak: Lynn Beyak, Ontario.
The Chair: Thank you, colleagues, and welcome to our guests. I will introduce them in a moment and invite them to comment, but first, for the record, I want to point out that the committee today is dealing with the pre-study of subject matters of Division 24 of Part 4 of Bill C-43. The particular division and part we're dealing with has to do with amendments to the Immigration and Refugee Protection Act.
In our first panel, which I will remind you all will end no later than 11:30, we have, from Citizenship and Immigration Canada, Robert Judge, Director, Temporary Resident Policy and Program; and from Employment and Social Development Canada, Temporary Foreign Workers Program, Skills and Employment Branch we have Alexis Conrad, who is Director General; and with him is Colin Spencer James, Director, Policy and Program Design.
Welcome to you all. I understand that Mr. Conrad will make a presentation and all three are available to respond to questions. Mr. Conrad.
Alexis Conrad, Director General, Temporary Foreign Workers Program, Skills and Employment Branch, Employment and Social Development Canada: Thank you to the chair and the committee for the opportunity to appear today.
I will quickly make some opening remarks to make sure there is sufficient time for members to ask questions, given the hard stop you have at 11:30.
[Translation]
On June 20, 2014, the Government of Canada announced an overhaul of the Temporary Foreign Worker Program, which was in response to growing concerns on the use and misuse of the program. These reforms are intended to ensure that the program continues to operate in the national interest.
[English]
The program reforms included splitting the Temporary Foreign Worker Program into two distinct programs: the Temporary Foreign Worker Program and the International Mobility Program. The Temporary Foreign Worker Program now refers to those streams requiring a Labour Market Impact Assessment for a temporary foreign worker to enter Canada. The LMIA ensures that the foreign workers are used only as an option of last resort to address immediate skills and labour shortages on a temporary basis.
The new International Mobility Program includes those streams in which the entry of foreign nationals is not subject to a Labour Market Impact Assessment, such as those entering under free trade agreements which provide reciprocal benefits where the benefit to Canada has already been established. Agreements allow foreign nationals in certain occupations from partner countries to work in Canada without the requirement of a labour market test, like the Labour Market Impact Assessment, and in turn allows Canadians to work abroad with similar privileges.
The reforms were announced under three pillars: limiting access to the Temporary Foreign Worker Program to ensure Canadians are first in line for available jobs; more and better labour market information for stronger screening; and stronger enforcement with tougher penalties.
Collectively, these reforms strike the right balance to ensure that the Temporary Foreign Worker Program is being used as intended — to assist employers in filling their genuine labour requirements on a temporary basis when qualified Canadians and permanent residents are not available. These reforms will also help to deter employers from breaking program rules or face consequences if they choose to do so.
Reforms to the International Mobility Program were announced that will put in place a robust compliance regime, enabling Citizenship and Immigration Canada to impose consequences on employers who are found non-compliant.
To support the implementation of reforms to these programs, there are eight amendments introduced under Bill C-43 to section 32 of the Immigration and Refugee Protection Act.
The first amendment would change all the references of ''opinion'' to ''assessment'' to reflect the change from the Labour Market Opinion to a Labour Market Impact Assessment.
The second amendment would seek the authority to make regulations for the collection, retention and use of the social insurance number. Social insurance numbers will be used for the administration of the Temporary Foreign Worker Program and the International Mobility Program, including verifying employers' compliance with program requirements, such as the cap and transition plans.
The third amendment will support the stronger compliance regimes in both programs by allowing regulations in the Immigration and Refugee Protection Regulations to require third parties, such as banks and payroll companies, to provide documents for the inspection of an employer's compliance with program rules. This will help the Temporary Foreign Worker Program and International Mobility Program in verifying information provided by employers in the context of an inspection.
The fourth amendment would seek the authority to create a list, which would be used to publish the name and addresses of employers found guilty of an offence under the Immigration and Refugee Protection Act or under any provincial-territorial laws regulating employment or recruitment. The employers listed would be those ineligible to access the Temporary Foreign Worker Program and the International Mobility Program, the criteria for which would be set out in regulations.
The fifth amendment would allow regulations for Employment and Social Development Canada to levy a privilege fee on employers. This fee is for the privilege of hiring foreign workers, the details of which will be set out in regulations but estimated to be in the amount of $100 per TFW position at this time.
The sixth amendment would allow regulations for the collection of a new compliance fee that applies to employers in relation to their employment of certain foreign nationals who are exempted from the requirements of a Labour Market Impact Assessment.
The seventh amendment would seek authority to require employers hiring through the International Mobility Program to submit a job offer and other relevant information directly to Citizenship and Immigration Canada through electronic means.
Finally, the eighth amendment is seeking authority to make regulations for Citizenship and Immigration Canada to share information with provinces and territories for compliance and enforcement purposes.
Thank you, Mr. Chair. We would be happy to answer any questions you may have.
The Chair: Thank you very much. I will open the floor up to my colleagues, to begin with Senator Cordy and followed by Senator Seidman.
Senator Cordy: Thank you very much for being here today. I'm interested in the changes that have been made in terms of increasing the Labour Market Impact Assessment fee, which was increased from $275 to $1,000. Has the department done an assessment as to how this will affect employers who are applying for foreign workers?
Mr. Conrad: Thank you, senator. I should start by just quickly explaining that the cost of the fee went up consistent with our increased costs for delivering the program. A lot of the amendments that have come in place over the past year, including greater scope of inspections and more inspections, raised the cost to the department in terms of delivering the program. The government wanted to reset the fee to reflect that employers rather than Canadian taxpayers are paying for the costs of the program.
The cost recovery part is a legal requirement imposed that we can only collect as much as we actually spend on the program. When the fee was set, it was set per position. This is a reflection of the fact that it protects small businesses more from a higher fee and the fee is set per position rather than per application. Certainly, at the front end in setting the fee, the government was purposeful in that respect.
As far as the impact on employers, we obviously do talk to a lot of employers. I would say that generally the impact on individual employers relative to the actual costs of hiring a foreign worker, which can be quite expensive, is quite small relative to the total expenditures they need to hire, bring in a foreign worker and meet the other program requirements.
Senator Cordy: But I'm just surprised, you said it would protect small businesses, but a 300 per cent increase I think would be fairly significant for a small business.
It's black and white. I've been in contact with a caregiver. Caregivers are included under this, so it's still a $1,000 fee for somebody who needs a caregiver. The situation that I was given was seniors on a fixed income who are looking for a caregiver for their adult son. This is in Alberta. They've tried to get a Canadian, were unable to do so, and paid the $1,000 fee. A few days before the caregiver was supposed to arrive, the deal fell through. So rather than the $1,000 being the application, they in fact have to pay another $1,000.
Is there nothing in place to deal with those situations? This is a significant hardship for people, and I'm quite sure they're not the only ones, but for people looking for a caregiver, this isn't a business. This isn't somebody looking for 100 employees. It's somebody looking for one employee to look after their adult disabled son. That $1,000 is a lot of money to pay one time, but to turn around because that deal has fallen through and to pay it again, has any thought been given to that particular part of the program?
Mr. Conrad: These situations do come up from time to time, that the foreign national for one reason or another decides not to enter Canada. From the department's perspective, from the live-in caregiver program, which I'm sure you're aware the government has announced some changes to, we have never allowed substitution of names.
The process by which the assessment was done in terms of whether someone should come into the country to live in someone's home is, as far as our assessment, probably the costliest part of the program to run, because we have to do a significant amount of work to verify who the person is and that they have the financial means to hire the caregiver to pay the wage over a course of two years. We are particularly concerned when someone is actually living in someone's house. So, in actual fact, our costs for assessing those applications are probably higher.
The reason we have not allowed a name change is for program integrity. It's very difficult in that situation. As I said, I am aware because this situation does come up. We don't have a system where we can refund the money because the work has been done to assess the application. In those situations, the caregivers, I understand your point, do require a new application which means we have to do a complete assessment again.
Part of my comment before is that when you look at the total I realize $1,000 is a lot of money. I'm not going to argue that with you, but when you look at the total costs that someone has to bring in a foreign worker as a caregiver and pay them over the course of the period, the $1,000 fee is largely dwarfed by the other costs the employer takes on.
Senator Cordy: And I understand your example, that your position is that it's user pay, and I understand that. Surely, in these situations where seniors in their mid-seventies have got to pay another $1,000 because the deal has fallen through, there could be a little bit of leeway on the part of the government in those situations, and there is none is what you're saying.
Mr. Conrad: There is none. In fact, by law we are required to take the application fee with every application. Because a new application is required because the foreign worker has changed, we are legally obliged to take the fee.
Senator Cordy: It doesn't make sense to provide such hardships for seniors who have paid taxes all their lives, but thank you.
The Chair: I think, Mr. Conrad, if I understood you, your point is that it's required by law and you don't have discretion in that regard yourself, regardless of the various opinions of the issue; is that correct?
Mr. Conrad: That is true, Mr. Chair. We cannot waive the fee.
Senator Seidman: I'd like to ask you about some of the changes. The first one you make reference to changes all references of ''opinion'' to ''assessment.'' So instead of Labour Market Opinion, we have a Labour Market Impact Assessment, and that uses different criteria and is supposed to be much more rigorous.
Could you help us understand that process, which is going to be undertaken by Employment and Social Development Canada, I believe?
Colin Spencer James, Director, Policy and Program Design, Temporary Foreign Workers Program, Skills and Employment Branch, Employment and Social Development Canada: A number of new changes have been made to the Labour Market Impact Assessment process that differentiate it from the Labour Market Opinion.
First, we're going to be using more and better labour market information to undertake those assessments. There's more robustness of the process there. There's more information that officers will be looking at as they assess applications.
There are new requirements that we're asking of employers to make commitments that they won't be laying off any Canadians in the process or as a result of hiring those temporary foreign workers — no laying Canadians off and no reductions in their hours of work.
There is a third change. Alexis, do you remember what it is?
Mr. Conrad: We also require employers to provide information on how many Canadians have applied for the position, how many they have interviewed, et cetera, so we have assurances that they have considered Canadians in a real way before the decision is made to allow them to bring in a foreign national.
Senator Seidman: So, will they have to demonstrate that they've actually advertised the position for Canadians and that all applicants didn't fit the requirements or there were no applicants? Is there going to be data provided or is it just say-so or theoretical? How is it going to work?
Mr. Conrad: We require employers to advertise positions to Canadians generally for four weeks. We require them to advertise on the job bank and other industry-appropriate resources often in a national forum. We need to make sure that as many Canadians as possible are aware of the job opportunity. We require them to reach out to under-represented groups and provide evidence they've reached out to an Aboriginal community or to persons with disabilities, as appropriate; and we require them to provide details in terms of statistically how many people applied for the job, how many have they interviewed, and how many job offers did they make.
We require them to keep records so that at some later point, if and when our inspectors ask to see the evidence to ensure that they actually were honest in their applications, that the inspectors can verify that what was provided to the department as part of the assessment when the decision was made was the truth. Where employers have been less than honest, they are subject to sanctions.
Senator Seidman: I just want to be sure I understand. Other than the evidence that's provided by the employer, is Employment and Social Development Canada going to undertake any of their own research on the subject matter in terms of the actual category of job, not that specific job in that specific company, but the category itself, and how timely the needs are? Are the needs in that category legitimate? Are there mobility issues across the country?
I'm wanting to know how much you will rely on the employer for this kind of information to do your assessment and how much work you're going to do yourself to really understand the situation in the country with job gaps and matching people who need jobs with open jobs.
Mr. Conrad: As my colleague mentioned, one of the parts that's included in the increase in the fee the department is focused on is working with Statistics Canada to get more survey data so we know the number of vacancies out there and what's happening to wages.
We study these things now, and we feel that more information will give our officers better tools to assess whether or not there's a foreign worker warranted at that time, place and wage. We do a lot of analysis around labour market information in our regional office, as well as at our headquarters, in terms of understanding how the program is being used, if we are seeing growth in some areas, and if we're seeing growth in areas of the program or in occupations where we wouldn't expect it. Where we see that, we try to do some sensitivity analysis to understand whether there is a reason. Have the labour market conditions changed, et cetera? Sometimes we see the use of foreign workers go up; sometimes we see it go down. Sometimes it depends on the macroeconomic conditions, but it can be related in smaller communities to one employer who suddenly needs a lot more workers or does layoffs.
We track these things quite carefully, and we are very focused on arming our officers with as much information as possible to make the individual decisions, but also in terms of the program management, to make sure the way the program is approached and the advice we give to officers on how to assess is as robust as possible. This is an area we have been significantly focused on, and we will continue to push.
Senator Seidman: That's very reassuring to know that you are going to do your own labour market analysis and use Canadian information gathered all across the country.
On the collection, retention and use of social insurance numbers, could you help us understand the purpose of this?
Mr. James: Sure. There are two things the collection of SIN umbers helps us do as a program. It helps us validate the identity of anyone interacting with the program as part of fraud prevention or someone misusing or using someone else's identity. When an employer is applying to the program, we'll be able to validate that that employer is who they say they are and that that employer is actually tied to a legitimate business. That's validation.
The second area, it will allow us to identify specific foreign workers and that when our officers are doing inspections of employers that we'll be able to identify who is there to make sure that the employer is meeting their obligations against some of the program requirements, such as the cap on the proportion of their workforce that is allowed to be made up of low-wage temporary foreign workers or efforts they've made to transition to a Canadian workforce.
Senator Seidman: Are there identifiers on foreign workers? Do they have temporary SIN numbers?
Mr. James: They do. They have a SIN number that starts with a number nine.
Senator Seidman: So, there's some benefit in that case. I understand.
Senator Seth: Thank you for your presentation. This is a supplementary question, first, to what Senator Cordy asked about having increased the fees from $275 to $1,000 for every temporary foreign worker who is required.
Do you think it can make a change so that Canadian citizens will be more attractive than foreign employees and decrease national unemployment?
The Chair: Mr. Conrad, will you deal with the first part of the statement she made? She said it increased it from $250 to $1,000 for every temporary foreign worker. Would you please deal with that?
Mr. Conrad: It increased from $275 in 2013. The new measures increased the fee to $1,000. That's per position requested by an employer. If an employer requests 10 positions, they pay 10 times.
The Chair: Thank you for that clarification. I wanted to get that clear for the record.
Senator Seth: Will it be more attractive for our citizens to have a job and will it decrease national unemployment?
Mr. Conrad: So, in truth, the motivation behind putting the fee in place was simply to change who was paying to use the program from taxpayers to employers. We found a couple of things have happened as a result of that. One is we used to get a lot of requests just in case, and we spent a lot of time processing applications that actually never ended up in foreign workers entering the country. From a processing point of view and for program management, it's better to have an employer really wanting someone. We have seen employers drop out for that reason, which is probably the biggest increase.
There is no doubt in my mind, though it wasn't the policy intent by the fee, that in some cases employers realize their costs have come up and they will work harder to find Canadians and look in places to find Canadians that they wouldn't have otherwise, because the cost dynamic has changed. Our program requirements are pushing them quite strongly in that direction, but I've no doubt that in some cases employers have realized that their bill for a foreign worker will be very high. They'll do a lot more HR work and, as a result, have found Canadians and not bothered to apply. I think there are two factors why the volumes have gone down. One is employers are not bothering to apply and, in other cases, they have decided to do more HR work and hire more Canadians, which I think meets everyone's policy objective.
Senator Seth: Currently, the Ministers of Citizenship and Immigration and Employment and Social Development Canada may list on a public website employers who violate conditions of the Temporary Foreign Worker Program. So they'll put it on there. This list has been expanded. Can you just give me some examples of the offences that would be covered under this new regulation?
Mr. James: This legislative change just identifies an enabling authority that would allow the department to put employers' names on a public list if they have been found in violation of a federal or provincial-territorial employment or labour law.
What will be set out in regulations are the details of the conditions under which violations, in what circumstances and the length of time that an employer's name will remain on that list.
Senator Seth: Do you believe that more regulatory measures could be put in place to make it better and ensure compliance with the program?
Mr. James: We're constantly looking at the program to see if there are adjustments or changes that need to be made to improve the program, and we'll continue to do so. This is the regulatory change that is planned for that enabling authority and, in the course of doing that regulatory change, we'll explore what the scope of that change needs to be.
Senator Seth: Okay, thank you.
Senator Merchant: Thank you very much, and welcome.
I would like to deal, Mr. Conrad, with your fourth proposed amendment, which would seek to create a list and publish the name and addresses of employers found guilty of an offence.
What precisely is the purpose of this list? Is it to embarrass the employer? Is it to fine the employer? Is it to discourage other workers from working for that employer? Exactly why are you doing this?
Mr. Conrad: In many provinces, when an employer is found guilty under provincial employment legislation, that information is generally in the public domain. Some provinces list it.
There are two purposes. One is for transparency reasons. The other is, where employers have broken employment laws that are regulated by the province, we don't necessarily believe that that is a safe environment to put a temporary foreign worker in. So it serves two purposes. It stops employers who've been found guilty under provincial legislation from using our program, but it also provides transparency, including to foreign workers, so when an employer or an international recruiter approaches them to say there's a job opportunity in Canada, that information is out for an individual to worker to decide whether he or she actually wants to work in that employment place. So I think it serves those two purposes.
Senator Merchant: Thank you. You are casting a very wide net. You are taking provincial and territorial offences. You are grouping them all together. Are there certain offences? Have you designated some offences that are of particular interest? I'm just thinking that we have to have some provisions to protect the employer, too. You know, once you put somebody's name on a list, it's a very serious thing. Why are you casting such a wide net? Why not find out the offences that are particularly offensive and go with that?
Mr. Conrad: In actual fact, the legislative amendment is an enabling tool. Before the regulatory process starts, we have started talking to provinces in terms of understanding their employment standards and legislation to look at our own federal offences and, at the end of the day, to make sure that the tools reflect the kind of offences that an employer has committed that we wouldn't want him using the program. We've received and will continue to receive very positive engagement from provinces in terms of understanding their own processes and which kind of offences are subject to convictions or those kinds of sanctions, and which ones are administrative.
Over the coming weeks and months, we're going to have to develop a regulatory regime that strikes that balance between the kinds of offences that employers have committed where no one thinks there should be a foreign worker entering, and others where there may have been a kind of offence that we don't necessarily feel is significant enough and which the province is managing through its own process.
It's a lot of work, but I think both provincial governments and the Government of Canada feel it's worth undertaking because, when a worker does come into Canada and enters a workplace, in most cases, they are working in a provincially regulated workplace, so the provinces themselves have an interest in making sure we get this right.
Senator Merchant: Finally, this finding of guilt, is it going to be a judicial determination or is it going to be an administrative finding? Who is going to decide whether a person is guilty of an offence?
Mr. Conrad: That's one of the issues that we need to talk about with the provinces because how they sanction employers differs from jurisdiction to jurisdiction. As you rightly point out, in some cases there are administrative kinds of penalties and in others there are criminal convictions, or they are found guilty under provincial employment legislation.
Our focus is on the serious offences, the kinds of things that everyone, as I said, agrees are unsafe for someone to work in or that someone should know about. Exactly as you said, we need to find the right place and make sure that the kind of offences someone is found guilty of are reflective of how the provincial regime operates, and that we are sure at the end of the day we've captured the right types of offences. Certainly, it's something I expect to be spending a lot of time on in the coming period.
Senator Merchant: You haven't answered the question. Who's going to determine the guilt? Is it an administrative matter, or is it going to be a judicial finding?
Mr. Conrad: The finding of guilt will go with the respective government whose legislation is there. In a lot of cases, that's employment standards legislation. There are criminal offences under the Immigration and Refugee Protection Act and under the Canada Labour Code, so the individual government responsible is still responsible for sanctioning the employer. Our focus is what kind of sanctions we should list and stop employers using the program.
Nothing about this will distort anyone's responsibilities. It's simply who finds people guilty and we need to make sure that we list them.
I hope I'm answering your question now, senator.
[Translation]
Senator Chaput: My first question is further to Senator Merchant's questions about your fourth amendment.
To create the list of employers found guilty of an offence, there must be criteria and guidelines. Have you already started to prepare a first draft of the criteria to determine which offence would get an employer on the list? Have you determined how long an employer's name would remain on the list?
Mr. Conrad: We have started, but as I said earlier, this requires a lot of work. We have opened discussions with the provinces, the territories and our colleagues in the Government of Canada, but it is a complex process. So yes, we have started, but there is a lot of work to do.
Senator Chaput: In your view, since it is difficult and there is a lot of work to do, is it still doable? If so, how long would it take to have a satisfactory draft of criteria for the provinces, territories and the federal government?
Mr. Conrad: I am sure it is doable. We have had good discussions with the provinces, and they think this is important as well. I am not sure how much time we will need to set the conditions and criteria; that will be part of the regulatory process. However, this initiative is definitely a priority for us and for most of the provinces.
Senator Chaput: After a decision is made to add an employer to the list, do you think the name will remain on the list permanently or just for a certain time? Have you thought about that?
Mr. Conrad: We have talked about it, but we have not made a decision yet. Some provinces have decided to keep the name of the employer on the list permanently, as public information, while other provinces will delete the names after a certain period of time.
We will talk about it amongst ourselves and with the provinces to determine the best way to handle the situation.
Senator Chaput: Could the solution be different for each province and territory?
Mr. Conrad: It varies from province to province, because, in many provinces, the list of employers is already published. In our case, we will have to decide how long we want to keep the names on the list.
Senator Chaput: I have another question. I know Senator Seidman has already asked questions about this, but, in your second amendment, you talk about seeking authority to make regulations for the collection, retention and use of social insurance numbers, with a view to developing the regulations to implement the program.
Are those three matters currently addressed, perhaps more broadly, in Employment and Social Development Canada's regulations? Do the regulations already refer to the collection, retention and use of social insurance numbers?
Mr. Conrad: If you are asking whether we can check certain information without the social insurance number, the answer is yes, but it takes a lot of work, a lot of administrative effort for the department and the employers.
Having access to the social insurance number will help the department and employers, because the process is difficult and very complex. So it helps both parties.
Senator Chaput: Right now, do you need to obtain authorization from the employer before you can use their social insurance number?
Mr. Conrad: Right now, we are not allowed to use the number in full; we can use only some information. In addition, the employer cannot always give us the authorization; it is a legislative matter.
Senator Chaput: After this bill is passed, you will not need authorization from the employer to use the social insurance number, it will be automatically done? It will be a given?
Mr. Conrad: That is correct.
Senator Chaput: Thank you.
[English]
The Chair: Mr. Conrad, I'd like to go back to the middle part of your response to Senator Chaput's question with regard to the federal list. I think I understood you to imply that, even though the provinces may have different lists at the moment, the intention is that the federal list will be standard across the country. Is that correct?
Mr. Conrad: In one sense, Mr. Chair, I should be careful not to prejudice decisions that will be made through the regulatory process.
The Chair: I understand.
Mr. Conrad: But the main issue is there are very different regimes in different provinces. They list employer names differently. Some of them, as I said, are always there just for information and sometimes they are there for a period of time until the sanction expires or for a set period of time.
I wouldn't say that the decision has been made, but I would say, from a federal perspective, it would probably be appropriate to treat employers, no matter where they are in the country, in a similar fashion. Therefore, we should make our own decision of how long we will put those employer names on our list and it should be the same, presumably, no matter where in the country.
The Chair: Subject to the information that appears during the development of regulations and their applications, the intent going into it is, where possible, to have a standard list across the country?
Mr. Conrad: I think that is fair to say.
The Chair: Thank you very much.
Senator Enverga: Thank you for your presentation. When an employer files a contract, do you have any limitation on how long it should last?
Mr. Conrad: Sorry, senator?
Senator Enverga: Is there a limitation on how long the contract should last? Let's say if you hired a temporary foreign worker to work in your company, is there a limitation on the length of this worker's contract?
Mr. Conrad: Generally, for low-wage hires of temporary foreign workers, where the temporary foreign worker is being paid below what the median wage is in a province, we issue a maximum of one year. After a year, the employer needs to re-advertise the job to Canadians, reach out to communities and go through the process again.
For higher wage positions, we will generally approve them for up to two years. The decision on some positions is when we know there is a fixed period of work for a fixed period of time — it may be 23 months or longer — the work is ending and there is no job there in the future, we match up the period of time generally to what the employer needs.
From a general program perspective, generally for low wage it's up to a year and generally for high wage it's two years. But, as I said, there are cases where the employer can demonstrate the need is different, and we try to be reflective of the business need, assuming there's no negative impact on the Canadian labour market for giving authorization longer than two years.
Senator Enverga: Assuming it is up to two years and the employer finds they still need the temporary foreign worker, do they have to go through the same procedure again and pay another $1,000?
Mr. Conrad: Yes, they would. We don't actually allow renewals; we require a new application. Oftentimes, they may use the same temporary foreign worker and apply before the two-year expiry because the person is already here, they realize they can't find a Canadian and they want to keep the person because they've already trained the worker in their organization. In that case, we don't require them to find a different worker.
We require them to go through the process again because labour market conditions in Canada can change dramatically over a period of two years and, rather than just give them a renewal, we feel they need to reach out again and try and find a Canadian. If they can't, then they are entitled to reapply for the program and have another foreign worker, but we will make sure they go through a rigorous test to verify they still need their foreign worker.
There are other cases where an employer gets a year or two years of a foreign worker and the person qualifies to become a permanent resident. The employer at that point may decide to use one of the immigration channels to hire the worker permanently rather than have a constant reliance on temporary foreign workers.
Senator Enverga: Assume that you want temporary foreign workers, you can't find anybody else and you followed all the rules. Will the worker be sent home or sent to his or her native country and then come back, or can they stay while the process is ongoing?
Mr. Conrad: Often, when an employer realizes that the two years is expiring for a high wage position, at some period of time before that they will reapply because they would like employment continuity, and we allow employers to do that. Where an employer has an ongoing need for a worker, we don't have an interest in forcing them to have the person leave and fly back when they will continue to work. We try to be responsive to business needs. Business will stop if there is a break in employment, so the employers who use the program on a regular basis are accustomed to knowing how long they need to advertise for and what kind of efforts they need to go through, and they will try and match that up with having employment continuity.
Senator Enverga: I know that you were blacklisting employers. Do you blacklist employers themselves or the people who are doing the employing, like the owner of the company?
Mr. Conrad: The listing of the employer in terms of our sanctions regimes is attached to the employer. It attaches to the CRA business number which is the tool by which the employers apply for the program. The sanction, which now is a ban from the program, applies to the employer.
Senator Enverga: The employer, but not necessarily the person running the employment.
Mr. Conrad: No, not necessarily.
Senator Enverga: Because they can always create another corporation and do the same thing all over again. Do you monitor that kind of thing?
Mr. Conrad: Yes, we do monitor it. Our engagement is with employers and not the actual individuals. We do spend a lot of time ensuring that employers are not finding creative ways to get around program requirements, and we are quite internally used to monitoring who is using the program and what is happening, because we don't want individuals to find creative ways to subvert our sanctions. It's certainly something that we focus on. It's also something we are spending a lot more time on at the moment.
The Chair: The point is, Mr. Conrad, with regard to an employer that applies, their business is transparent in relation to the information that you have, and you can follow up.
Mr. Conrad: Yes.
Senator Beyak: Gentlemen, as you know, the labour shortage is more acute in some sectors. We heard from Agriculture and Agri-Food Canada, and they have written this labour action plan report. Do you meet with them regularly and do you have enough flexibility in the act and the regulations to deal with exceptions and the extreme cases in some of the sectors?
Mr. Conrad: I meet with them very regularly, both with the employer community and our federal colleagues.
The agricultural sector is a different stream of the program. We have defined ''primary agriculture'' in law, consistent with the international definition, and the program requirements for an employer hiring someone to work on-farm are different from other employers. We don't charge them the fee; we set a different wage scale; and some of the program requirements, like the cap, don't apply. That's an acknowledgement by the government over time that the labour situation in the on-farm primary agricultural sector is different and the challenges are significant, and so the government has reflected that distinction.
Senator Beyak: Are there any other sectors with exemptions that this doesn't apply to?
Mr. Conrad: The only exemption from the fee is in the primary agriculture sector. That's been continued since the fee was put in place. Most agricultural workers in Canada come through our agricultural worker program, which is a partnership with Mexico and Caribbean states on a bilateral basis to manage that.
As far as other sectors go, as one can imagine, we hear from a lot of sectors that they would like us to waive the fee, or for similar treatment. The government has very clearly signalled that they believe the agricultural sector is different, but my week certainly consists of talking to a lot of different sectors. The more we understand how the labour needs and how the businesses operate in different sectors, the more we can make sure the program is operating in a way where, as a first step, we can ensure they are doing everything they can to hire Canadian workers, but, when they do get to the point where they need foreign workers, the process is understandable and reflects their business environment.
Senator Wallace: Mr. Conrad, the employers that wish to utilize the Temporary Foreign Worker Program, as you pointed out, to this point have had to complete the Labour Market Opinion, and that's now being replaced by the more stringent Labour Market Impact Assessment, so the criteria, I take it from that, is being tightened up from what it has been to this point.
Can you perhaps describe to us in a bit more detail ways in which the criteria is being strengthened under the new Labour Market Impact Assessment as compared to the Labour Market Opinion?
Mr. Conrad: As we talked about earlier, we are arming our officers and our program with better labour market information, a foundational piece to understand what's happening in the labour market. We are giving officers access to that information so they can, on an individual case, test. As I said, we are very much focused on forcing employers to be very transparent about not only what they've done in terms of trying to recruit Canadians, but how successful they have been or not and why they have not been able to. As I said, we look at how many CVs they received, how many interviews they did, and how many job offers they made. That's the kind of information that, for us, is very important in ensuring that employers are appropriately using the program.
We certainly are very careful about looking at information where an employer has received large volumes of applicants for very generic positions and hasn't hired anyone. Then our officers are well positioned to push back on the employers and say ''You need to explain to me why this has happened.''
The terminology has changed technically from Labour Market Opinion to Labour Market Impact Assessment, but we have taken the tools we had and added to them in a very significant way to put stronger screens in to make sure that at the end of day employers have access to foreign workers where they need it, and employers who don't need it and can hire Canadians don't receive the permission.
Senator Wallace: Hasn't that always been the criteria? I always understood that under the Temporary Foreign Worker Program the intention always was that Canadians would be hired first. It surprises me when you say that there were not specific requirements made of employers to demonstrate that. I understand they are being taken to another level now, but were there not stringent conditions or are there not stringent conditions in place today that employers would have to demonstrate that they have thoroughly canvassed the local employment market?
Mr. Conrad: Some of the tools I've talked about have been in place over the last year or so, certainly since April 2013. Since that period of time, we've made many rounds of changes, and all of them about tightening this. You are right, there have always been requirements for companies to actively search for Canadians. What we have found over time is that some employers were doing the minimum, and so we have upped the minimum in a lot of ways, basically saying, ''If you want to demonstrate to us that there are no Canadians available, then you have to do a lot more.''
In a lot of cases, in all sincerity, a lot of employers have always searched very hard for Canadians and have come to the program as a last resort and have used the program appropriately. There have been numerous media articles over the last year and a half about employers who have paid lip service in some respect to the program requirements, and a lot of these changes are about making sure every employer does the right thing. That's certainly not to say a lot of employers previously were not. This is about raising the bar in a significant way.
You are right in that the requirements have always been there to advertise, to seek out Canadians. What we are doing is simply responding to how the market has changed in some respects and pushing the requirements higher.
Senator Wallace: From one of your earlier comments I just wanted to make the point that my understanding was this is not just a change in terminology, but there's real substantive changes behind what is proposed, and it will have an impact undoubtedly on Canadian employers. They will have to adjust to this.
Mr. Conrad: You are right. There is the technical aspect of the legislative change that is proposed here and then a later regulatory change simply to ensure that what we are doing, the terminology is correct; but we have seen numerous examples over the last months with these changes. We have been adding these changes. We are seeing more evidence that employers are doing more to attract Canadians and really starting to come to the program as a last resort. There are numerous examples of employers who have stopped using the program.
There was an article in The Globe and Mail earlier this week or last week about an employer who is reaching out to high school and college kids in terms of bringing them in and training them in house. They used to use 20 foreign workers and they've realized the rules have tightened so much, and they're actually responding. We are enthused about seeing those kinds of examples out there.
Senator Wallace: That's encouraging. Thank you.
Senator Seidman: Your third amendment supports a stronger compliance regime. Employment and Social Development Canada says that it is now estimated that one in four employers using temporary foreign workers will be inspected each year. How do you see that happening? How is that oversight going to happen? What process will you use to determine who will be inspected, and exactly what format is that inspection?
Mr. Conrad: I think, senator, you can understand my reluctance to explain too much publicly about how we select employers, but in general terms we do a representative sample. We have a tip line and receive some complaints or letters from people saying that this employer is misbehaving. We take those seriously and assess them for their credibility and inspect employers where there's a complaint.
We also have a system whereby we identify risk-based inspections in cases where there may not have been a specified complaint, but all the variables point to the fact that it's worth checking those employers. We have another category of random, and every once in a while someone's business will come up on our radar and we will inspect them. There is a mix between those two, and I can't necessarily talk about what the split is. I would also say that the predictive analytics that go into employer selection on a risk base, for example, is significant: far beyond my comprehension, to be honest.
That's a way by which we focus on the employers that someone has alleged have cheated the program, the ones where we think there's a risk, but also ensure that just from a random sample we are verifying that other employers are doing that. The information goes back into the system to inform later risk-based inspections.
As you point out, we are increasing the number of inspections generally to one in four employers who use the program every year. All signs are pointing to more inspections, better decision making about who to inspect and, in some cases, we will go on site and talk to an employer or verify certain information. In other cases, we deal with things in paper-based or electronic form, and we'll make a decision on each case on the best way to do the inspection.
Senator Cordy: I think we all agree that changes had to be made to the program. We're just hoping that the right changes are being made, because we want Canadians to be hired first.
How long does it take between the time an employer puts in an application form until they get approval to hire a foreign worker?
Mr. Conrad: There are a number of factors. The first question is if the employer is submitting a quality application. We don't accept incomplete applications, but some applications are better than others, where the employer is very clear and has provided all the needed information, and that is faster than having the officer go back and forth and asking for additional information. That's a standard where it can vary.
For a range of applications that are high wage or on our list of priorities, we process them within 10 business days. The average processing time on all of the other applications varies. In some cases, they are quite quick. For short duration, for example, for someone coming in for 8 days of work it's not helpful to wait 28 days to have the application approved, so we triage based on that.
Application times vary across the country. We're very focused on the priority sectors, but what I've heard from employers over the last few months is that they're starting to see better and faster processing in a small number of weeks rather than what used to be a small number of months. It's not to say some don't take longer, but what we're also seeing is employers realizing we're no longer accepting incomplete applications. They are responding by improving the quality of applications.
Senator Cordy: With more inspections that you will be doing, because the increase of fees of almost 300 per cent, have you hired more inspectors?
Mr. Conrad: We have hired more inspectors and are in the process of hiring more. How many people we have doing inspections of one in four also depends on the denominator and how many employers are using the program. We hired enough inspectors and are hiring more to meet the standard the minister has put out. If the numbers went up, we would have to respond. We have officers, in some cases, who are cross-trained and so the department can move officers between files to maintain the right number.
Senator Chaput: I think I understand why you want to give the minister the authority to gather the Social Insurance Number. I understand for foreign workers, but what is the purpose of gathering the Social Insurance Numbers of permanent residents?
Mr. James: The legislative change that's proposed only specifically seeks new authority for Employment and Social Development Canada to collect a Social Insurance Number for the purpose of the Temporary Foreign Worker Program. That authority already existed for the permanent residency streams and some of the international mobility program streams that Citizenship and Immigration Canada already had.
Robert, I don't know if there's anything to add to that.
By having our officers able to view and verify those Social Insurance Numbers of individuals who are on an employer's payroll, for example, they are able to identify who is or is not a foreign worker. Whether someone is a permanent resident is a bit immaterial, but by making sure we have the authority to do it we'll have all the protections in place to make sure we're not misusing or displacing that information in any way.
I'm not sure I captured your question accurately, but it's not the program's intent to collect Social Insurance Numbers of all Canadians, for example.
Mr. Conrad: Part of the issue sometimes is that we require information from employers in terms of, as my colleague said, the number of Canadians working there. We need to know how many Canadians are working there to realize if they have lied to us on the application form.
There are also cases where we require employers, if they are offering a wage, to make sure that the wage is within the range of what they're paying Canadians. There is some information that we actually need to know about what they're paying their existing workforce to verify that they're paying the foreign worker consistent with that. The focus of this is largely to figure out which employees are foreign workers and verify that they're actually who they say they are.
At the front end, which I think we talked about a bit earlier, we also want to make sure that the person representing the company actually works for the company. We're concerned when someone may send in an application and they don't actually work for the company anymore. That's a sign. The more we know, if we can match their Social Insurance Number up and say they're working for that company, then we can establish the employee-business relationship.
The Chair: Thank you very much.
In this session, honourable senators, we have two witnesses. From the Canadian Bar Association we have Gordon Maynard, Past Chair, National Immigration Law Section; and from Restaurants Canada we have Joyce Reynolds, Executive Vice-President, Government Affairs.
Ms. Reynolds, I'll invite you to present first, and then Mr. Maynard. We will then open the floor up to questions from my colleagues.
Joyce Reynolds, Executive Vice-President, Government Affairs, Restaurants Canada: Thank you, Mr. Chair. I appreciate the opportunity to speak today about budget implementation measures impacting the Temporary Foreign Worker Program.
First, we would like to be on record as recommending that the word ''temporary'' be removed from the Temporary Foreign Worker Program, so that the program actually provides a pathway to permanent residency.
This program is extremely important to our members, particularly in communities in Western Canada, and in pockets in other parts of the country as well where labour shortages are acute. Having said that, you need to know that temporary foreign workers comprise a very small percentage of our almost 1.2 million Canadians and landed immigrants. Of the approximately 2 per cent of our workforce that are TFWs, most are in Western Canada, with by far the highest number in Alberta. In Alberta's red-hot labour market, this program is critical to keeping many restaurant businesses operational.
Restaurants Canada supports increased government efforts to identify foreign worker program abuses and hold accountable those employers who misuse the program. We have long supported stronger penalties and sanctions for the few who break the rules to protect the long-term integrity of the program.
In a presentation I made to the Standing Committee on Citizenship and Immigration back in April 2008 — we were the Canadian Restaurant and Foodservice Association at the time — I said that we support increased monitoring and compliance mechanisms for this program and better communications between provincial governments and the federal government in this regard. I went on to say that we support restricting TFW program access to employers who repeatedly or systematically violate provincial labour standards or the terms of the TFW agreement. If there had been better monitoring for compliance and enforcement of rules, perhaps an entire industry would not have been unfairly maligned and a necessary program tarnished because of the actions of a few.
Demographics tell us that the labour shortages our members are experiencing in Western Canada will spread across the country and get progressively worse as the labour force ages because our workforce is so skewed towards youth. Forty-four per cent of today's food service workers are 15 to 24 years of age, but this age group has reached its demographic peak and is now in decline, with a precipitous drop of 300,000 predicted, falling from 4.6 million in 2011 to 4.3 million in 2021. So a key source of workers is declining as our need for workers balloons.
Our members have responded to labour shortages by enhancing their recruitment and retention strategies and putting more emphasis on attracting and accommodating under-represented groups such as Aboriginals and persons with disabilities. A 2013 member survey revealed the extent to which employers in our industry go to hire individuals from groups under-represented in the Canadian labour market. For example, almost 76 per cent of respondents hire First Nation individuals; 84 per cent hire new immigrants; 79 per cent hire persons with a disability, or other-abled; and 60 per cent hire social assistance recipients.
They are also increasing wages and benefits. We strongly dispute the government's assertion that wage increases in Alberta's food service sector have not kept up with the economy as a whole. This is not supported by Statistics Canada's Labour Force Survey data.
Reflecting their preference to recruit domestically, our members have moved far beyond simple job postings in their efforts to attract potential employees, including job fairs, interaction with community groups and social agencies. Despite these best efforts, in some regions a restaurant's only option is to turn to the foreign worker program.
Restaurants Canada recently canvassed our members who make use of foreign workers on how restrictions to the program will impact their businesses. The topline finding is that our members expect that, as new rules take effect, they will need to reduce hours of operation, curtail expansion plans and potentially lay off Canadian workers as the contracts of current foreign workers end and these workers are forced to return to their country of origin.
The futility felt by our members on how to replace departing foreign workers was clear, with many reporting unfilled positions and burnout of their existing staff. They are also beginning the process of retrenching their businesses in terms of reduced capital expenditures and not pursuing expansion plans. We fear returning to the days of the mid-2000s, when the industry in Alberta was contracting, when the demand for our services had never been higher, due to a lack of workers.
It is understandable that these members believe that the rule changes brought in on June 20 that severely curtail our industry's ability to access the foreign worker program are a huge overreaction by government to media reporting, innuendo and unproven allegations, rather than government policy formulated on facts-based evidence. It is for this reason that we support the conducting of thorough investigations of all claimed employer abuses of the program. We believe the relatively few employers who abuse the program should be held to account so others are not tainted by the same brush.
We do, however, have concerns about government's regulatory plans to impose consequences on employers for non-compliance that is the result of good-faith errors. This is particularly important given the number of our members who say they have difficulty fully understanding the fast-evolving rules and regulations of the TFW program. Seventy-six per cent of respondents in our recent foreign worker survey reported they experienced difficulty receiving concise and consistent answers from Service Canada government officials in response to questions asked about how to apply and how to be in compliance with the program. If an employer is able to argue that non-compliance was the inadvertent result of a non-permitted action, particularly when clear and unambiguous guidance was not available to them, we strongly advocate that no consequences should result, whether it is voluntarily disclosed or comes to the attention of government.
Finally, we have concerns about giving department officials blanket authority to publicly expose an employer without due cause or natural justice. We want to ensure that there is an oversight and appeals process in place.
With regard to the privilege fee, the TFW program is already costly, and this fee will make it more so. When the $275 LMO user fee was imposed, our members were prepared to help bear the cost of the program, particularly because they were led to believe it would lead to improvements that would speed the application and approvals process. Instead, they paid tens of thousands of dollars in fees for a more cumbersome process that often did not result in a positive application or a work permit. The fee more than tripled in June, putting the program out of reach for many operators. To make matters worse, the application process is slower still.
Instead of implementing an additional fee, Restaurants Canada recommends that applicants whose LMIA has been rejected be provided with a partial refund of the fee, since the portion of the fee allocated for compliance and enforcement would no longer be applicable.
To conclude, at Restaurants Canada we appreciate the need to protect the integrity of the program and to ensure the intent of the program — hire Canadians first — is respected by all users of the program. We are supportive of measures that will ensure that appropriate monitoring and compliance mechanisms are in place and that abusers of the program are denied access.
The foreign worker program is critical to the continued viable operation of Canada's restaurant industry, particularly in those regions of the country experiencing acute labour shortages. We are interested in working with government to put policies in place that will restore and further strengthen the efficiency, integrity and reputation of this important program.
Gordon Maynard, Past Chair, National Immigration Law Section, Canadian Bar Association: First of all, thank you for those comments, Ms. Reynolds. I hope during question period we have the opportunity to speak more about her concerns in the industry. It has been a huge over-reaction of the government with respect to the restaurant industry.
The Chair: We will deal with questions in the usual way. Please proceed.
Mr. Maynard: My name is Gordon Maynard. I'm an immigration lawyer from Vancouver. I've been an immigration lawyer for almost 25 years. I am speaking on behalf of the Canadian Bar Association. The National Immigration Section has a membership of lawyers across Canada dealing solely in immigration law. The national CBA represents 37,000 lawyers, notaries, students and teachers, and the mandate is to promote improvements in law and the administration of justice. It's in that spirit that I bring these comments regarding Part 24 of Bill C-43.
I'm going to speak in particular about the proposal to have a new list of employers, that is, employers who have been found guilty of designated offences under IRPA or of federal or provincial employment or recruitment law.
I came early today because I wanted to listen to what the department had to say about these provisions. Three times it was stated that employers on this list will not be able to access the foreign worker program. I was afraid that would be the consequence of this listing.
You'll notice that in Bill C-43, which creates this list or this possibility of being listed, it doesn't say anything about what the consequences are. It doesn't say anything about it. The government has been very vague about what the consequences will be until those three statements today.
In carrying out an assessment of the law and where this new list fits in, I'm afraid that we've come to the same conclusion. The purpose of the list is not to protect foreign workers. It's not to publicly give notice of employers who are breaching federal or provincial labour law. It is to set up the employers for loss of access to the program. Let me explain how that works.
We already have in the regulations — it was introduced last year — a list of conditions that all employers who use the foreign worker program have placed upon them. These were introduced by regulation last January. There are a number of conditions. You have to pay them according to the employment contract. You can't change the terms of employment.
One of the conditions is that, during the term of employment of the foreign worker, you must comply with provincial and federal employment law and recruitment law. That's a stated condition, so that applies to all employers who use a foreign worker.
If an officer in the department has reason to believe that there has been a breach of a condition or if you have been found to have breached conditions in the past, or just on a random basis, the department can carry out an investigation of your business. That's provided for in the regulations.
In that investigation, they can do entry and warrantless inspection of your business. They can compel you to produce all documents that they feel would be relevant. They can compel the business owner to attend, and they can compel them to answer questions regarding the employment of their employees and their foreign workers.
If the officer finds as a result of that investigation that there has been a breach of condition, then they can put you on a list, and that is the 209.91(3) regulation, the 209.91(3) list. It already exists in the regulations. If you're on that list, you are now forbidden from accessing the foreign worker program for two years, and that includes renewing the work permits of any foreign workers that you already have.
You can imagine the consequences for an employer who is caught by this prohibition. You might be an employer in B.C. that has hundreds of employees and only a small number are foreign workers. You might have project sites across the province. A breach of a condition causes you to lose access to all of your foreign workers, and some of them might be vice-presidents of your company. They might be NAFTA intra-company transferees. They might be specialized knowledge workers who have come in to fill a gap. They are now inaccessable to you, so the consequences are significant.
Where does this new list fit in? This new list will list employers who have been found guilty of breaching a provincial or federal employment law. It is also required that the employer have had a foreign worker in the past, currently or they're applying to have one. You're put on this list.
There's also a companion authority, section 309 of Bill C-43, that requires the employer to provide information to the department about all foreign worker employees that they have. If the department phones up, you're required to give them the information.
Now somebody in the department has a list of employers who have committed provincial offences. They have information about them having foreign workers. They're now in a position to either suspect that they're in breach of their condition not to comply with provincial legislation, or they have evidence that they've breached in the past. This triggers that inspection right, the production of document rights, the compelled questioning rights, which in turn leads to a finding that you're in breach of a condition and you now have no access to the program. That is what I believe the purpose of this list is.
That raises questions, as pointed out in the CBA paper. Who gets put on to this list? It says in the legislation employers who are found guilty of an offence. What does ''found guilty'' mean? Does it mean an administrative breach? Can a provincial officer issue a ticket for an administrative breach of a safety violation on a work site?
The Chair: Mr. Maynard, you're going on beyond the time we allotted, so could you please wrap up?
Mr. Maynard: Certainly.
With respect to the listing, we think that ''found guilty'' should only mean a judicial determination given the consequences that will follow. We also believe that it should not be possible to be listed for any breach of any provincial legislation or any federal legislation respecting employment. There should be designated offences. The government should very carefully identify and make public which offences will justify being put on that list.
Those are our recommendations there. It's a very complex area. There's much more to it than what people are saying so far. It deserves very critical examination. I'm happy to answer your questions. Thank you for your favour.
The Chair: Thank you very much. I'll now open up to questions. I remind us all that this session will end no later than 12:30.
Senator Merchant: I gather from what you said, Mr. Maynard, that you are concerned about lack of due process, because who is to know what triggers an inspector to designate you in a certain way. Should there be a warrant for people to obtain this information? Can people just walk in?
Mr. Maynard: Right now, the authority given to officers to enter and inspect, to demand production of documents, and to compel an employer to attend to government offices and answer questions does not require any warrant. All that is required is a reason to suspect that there may be a breach of condition or, if there's evidence of a past breach of condition, that allows them to move forward on it, or just on a random basis.
It is the CBA's position that this is insufficient protection and that it is not a reasonable limit to justify those kinds of actions. In the absence of a reasonable law providing for when these inspections can take place, there should be a requirement to get a warrant. Thank you.
Senator Cordy: Ms. Reynolds, I was interested in your comments about the process and how long it's taking. I asked the previous panel long it takes from the time an application is made until the employer gets the authority to hire a temporary foreign worker, and I was told that, unless there are extenuating circumstances, it's going to be 10 business days.
I was curious about the new fee, which is, as you said, almost a 300 per cent increase, and whether or not this would make for a more streamlined process. You're saying that since this has been in since July, in fact it's making the process more cumbersome than it was previously. If I were a business owner, an employer, I would assume that if my fees are going to be raised by 300 per cent, then that service would indeed be 300 per cent better, or certainly a bit better.
Ms. Reynolds: In Alberta, where our members primarily make use of the Temporary Foreign Worker Program, it can take months for these to be processed.
The other thing that's happened is that the application form has changed three times since June. You submit an application. You pay your $1,000 fee. If there's some minor problem with the application, it gets sent. Then, you have to submit another one with another $1,000 fee. You can't even use the same application. You have to use a different application. You have to start the process all over again.
It was tough enough when the fee was $275. It's just become unviable. You talked about an elderly couple who couldn't afford it. Well, a small restaurant operator in Cold Lake, Alberta finds the fee very high as well.
Senator Cordy: Because we're not talking multinational companies who can well afford $1,000. We're usually talking the small businesses and, in the case that I heard of, a caregiver of an adult son who was disabled.
I'm also interested in the due process, the lists that are being made. I'm always nervous when government makes lists.
Mr. Maynard, you suggested that there already is a stipulation in the law so that, if somebody breaks the agreement, they would not be allowed to hire a temporary foreign worker for two years. Yet, when questions were being asked about how long this list would be around, the indication that I received from their comments was that this was pretty open-ended. This is a list that could go on forever and ever and ever.
Also, related to that, there seems to me to be no due process. So, if you're put on the list, there's no recourse for you. Who makes the decision that you go on the list? Those are questions that I was quite concerned about.
Mr. Maynard: For the list that exists, you're on it for two years, period, and it's mandatory. If they find that the employer has breached a condition of the employment — as a result of their investigation, they find this out — then they shall be put on the list. There's no discretion in it.
Yes, I'm very concerned about that list, but there's nothing in the act, nothing in the regulations, nothing in Bill C-43, that says that being put on this new list causes you not to have access to foreign workers. It can only be used to get you onto the other list. That's the only way in which it could result in you being denied access to foreign workers, so I was very concerned when I heard the department say three times that being on this provincial offenders list is going to cause you not to have access to the program. That means they're going to link it to the section 209.91 list.
Senator Cordy: And there will be no due process? Ms. Reynolds, is that what you suggested?
Ms. Reynolds: That's what the concern is. We don't know what the due process is.
I should point out that, when we talk about that list, there are only four restaurants that are on that list. We've heard, through the media, about all kinds of allegations of abuse and our industry has been badly tainted by that. There are four restaurants that are on that list.
Mr. Maynard: If I may, please. I would like to clear up a concern about the 10-day answer.
The government did say that there would be a 10-day processing time in the case of workers who are going to be paid a high salary. By high salary, they meant in the top 10 per cent of the provincial average. So, for B.C., the salary is approximately $27 an hour, but that's not based on what you say you're going to pay them. It's based on what ESDC says is the prevailing wage for that position, which is always much lower. So, there are only about 10 occupations, out of the entire list of occupations known to Canadian mankind, that would support a 10-day processing time. It's illusionary that that time exists. It doesn't exist. For the vast majority of employers, it's a two- to three-month process to get the LMIA. That's after you do the advertising.
Senator Cordy: Right, okay. Thank you very much.
Senator Seidman: Thank you very much. We spent a lot of time, this morning, with our former witnesses from the government and with you, talking about the Temporary Foreign Worker Program, but, as we're aware, this piece of legislation splits the current program into two programs, the Temporary Foreign Worker Program and the International Mobility Program.
We haven't talked a lot about the International Mobility Program, which is exempt from the Labour Market Impact Assessment, and my understanding is that it specifically refers to foreigners entering under the free trade agreement.
Do either of you have anything to say about what proportion of foreign workers, for example, would fall into this particular piece of the program, that is, the International Mobility Program? Mr. Maynard, perhaps?
Mr. Maynard: Yes, the foreign worker program now is just the LMIA workers, and they are the vast minority of foreign workers in Canada. Most of the other foreign workers, the vast majority of them, are now classified as International Mobility Program, for instance, international programs for students. We have exchange programs and whatnot where students in Canada can go to France and students from France can come to Canada, get a one- or two-year work permit and work wherever they want. There's no Labour Market Impact Assessment done at all. They are free to do it. They far outnumber the LMIA workers that are in this country.
Senator Seidman: Do you have numbers to give us, actual proportions, by any chance?
Mr. Maynard: I don't want to quote from memory, but, when the government introduced the changes on June 20 of this year, they issued a document called Overhauling the Temporary Foreign Worker Program. In the very opening segments of that document — they are well worth looking at — it gives you the figures. It's staggering to look at those figures.
Senator Seidman: Okay, thank you. Could you give us examples of the type of work permits that would be issued under this particular piece of the program, the International Mobility Program?
Mr. Maynard: Under the International Mobility Program is every kind of work permit that exists other than Labour Market Impact Assessment work permits. So this would include work permits issued under treaties like NAFTA or any of the free trade agreements that we have with Chile, Peru, Colombia et cetera. It would include, generally, intra-company transferee work permits, where companies are shifting senior managers and executives from abroad into Canada for temporary placement at companies here; spousal work permits for skilled workers; student work permits or authorizations to work associated with being a student in Canada; International Experience Canada programs, where young people are just given a work permit to come to Canada for one or two years. All of those would be covered under IMP.
Senator Seidman: Would they represent any particular list of trades or professions?
Mr. Maynard: It depends on the category. Most of the students who come in are going to work at low-skilled jobs. They don't come and work at professional occupations. Intra-company transferee workers have to be senior executives, senior managers or persons with specialized knowledge, so they are, generally, at a higher level. The NAFTA agreement includes a professionals category that brings in engineers, architects, university; it isolates 50 positions or so. So there's a variety of positions that are involved.
Senator Seidman: Okay, thank you. That's been very helpful. Thank you very much.
Mr. Maynard: Sorry, if I may, this bill, the list and whatnot, applies to all foreign workers, regardless of whether they're LMIA or IMP.
Senator Seidman: Okay, thank you.
Senator Enverga: Thank you for the presentations.
Actually, I was struck by the fact that there's some concern about the listing that will be put in place by the government. Somehow, you mentioned that there are only four employers that are listed there. So, don't you think that the government has been really diligent in making sure that only those who are really, really bad will be placed on the list, or is it a lenient one? How do you classify the government at this time? Are they very careful in putting anybody on the blacklist here?
Ms. Reynolds: From our perspective there have been a lot of unfound allegations that have been made about our industry. I mean, there are a lot of anecdotes about, ''Well, my kid applied for a job in a restaurant and he didn't get the job, therefore that employer is overlooking Canadians.''
In fact, our industry operates 24 hours a day, 7 days a week. We need people to work late night shifts and weekend shifts. We have people who apply for jobs, but they are only available on weekdays from this time to this time. Sorry, we're not going to hire you because we need you to work from nine until two. Not all people have the aptitude to work in the industry.
Even if you look at the —
The Chair: If I can interrupt. Those are not on the list. The senator asked specifically with regard to numbers and the fact that there were four on the list. He was talking about the issue of the numbers, as opposed to getting you to go into a discourse.
Ms. Reynolds: For some of the allegations that were very public, there is another employer perspective, and employers can't talk about their personnel issues in the media. When they actually do the investigations, they find that an allegation that has been made is not necessarily the actual case, because there were an awful lot of allegations made about our industry.
I don't know the answer to your question, but my sense is that once they really start to do their in-depth investigations, they find there is less to these stories than were covered in the media.
Senator Enverga: From your perspective, Mr. Maynard, do you think the government is diligent in making sure that only those companies that are listed there are really the bad guys, so there is no real concern about outright putting everybody on the list there?
Mr. Maynard: I don't think the government has pressed the gas pedal down yet. I think we haven't begun the process of identifying and listing employers.
The Chair: I take that as speculation, but your point is taken.
Mr. Maynard: The legislation has only been in place for one year.
The Chair: The regulations haven't been developed yet, so we're speculating considerably beyond the issue we have in front of us.
Senator Enverga: On another note, I was thinking about those allegations that the industry hasn't been hiring Canadians. You said you are really hiring Canadians. But with all these advertisements and marketing the food industry has been doing, why can't you present yourself in a different way? You've done a great job marketing your hamburger or whatever food you have. Why can't the industry adapt to these marketing efforts and hire more people?
Ms. Reynolds: I would disagree with you in that I think our members have been doing an awful lot of media and marketing. They've been doing cross-country job fairs. They've been trying to attract unemployed workers from places like Ontario where there are youth looking for jobs to see if they will come out to some remote locations in Alberta and Saskatchewan. I would say they have been putting in a huge amount of resources.
I think that what's going to give restaurants in our industry a competitive advantage in the years ahead will be their human resource practices. They are putting far more resources into the recruitment and retention of employees. They recognize that being able to attract and keep workers will give them the competitive advantage. I would say there is a huge amount of efforts and resources going into this.
It's not as easy as it sounds to go to the street corners of Toronto and talk an unemployed youth to moving out to some remote locations in Alberta. They've tried it. They've done these programs where they try to bring people and one of the problems is they get some of the resource-based sectors who can always offer a higher wage. They recruit them right from behind the counters or right inside the restaurants, because they have the resources to do that. Our industry goes to the expense of recruiting them, bringing them out to Alberta and then they lose them, once they have their fare paid out to come to Alberta, to some of the other industries that we just can't compete with.
Senator Enverga: With these recent changes, do you know what the loss is to the industry? What is the degree of opportunity lost for the industry that you are referring to now?
Ms. Reynolds: We are in the process of trying to measure that now. One of the challenges to that is these changes are progressive so as the foreign workers' permits expire and they're being sent home, the businesses become increasingly short staffed. We know there are a lot of expansion plans that have been put on hold. We know they've walked away from franchisee/franchisor agreements because, without workers, they know they can't open any more businesses. However, we haven't been able to quantify exactly what the impact will be.
The Chair: Mr. Maynard, did you want to make a comment?
Mr. Maynard: Your comment about the progressive changes, you wait for the work permits to expire. The changes were put in place in June. Many restaurants with foreign workers still had those workers under work permit that were valid for a year or maybe two years. Until those work permits expire, we won't see the impact of the changes.
One of the big changes that particularly affects the restaurant industry is that the government said you will only be allowed 10 per cent foreign workers in a low-paying job and these generally count as low-paying jobs. If you have a restaurant that employs 35 Canadians and has six cooks in the kitchen who are foreign cooks because you run an ethnic restaurant, you are now only allowed to have 3 cooks, and I know restaurants are telling me they cannot operate at that level but that will not show up until another year from now.
Senator Chaput: Should there be recourse for employers who are or will be on the list eventually?
Mr. Maynard: Absolutely; if you are asking me, yes, absolutely.
Senator Chaput: I'm asking what you think.
Ms. Reynolds: There has to be due process, but we want to see those who are abusing the program out of the program. There is no question about that, because it gives everybody in our industry a bad name and it gives the program a bad name. We do want to see those who are guilty of an offence to be out of the system.
One of the other things that people didn't understand about the Temporary Foreign Worker Program was that temporary foreign workers coming to this country have the same protections under employment standards law in every province of this country. That really hasn't changed. We've always said you need to work more cooperatively with the provincial governments because, if there are some employers that are repeatedly guilty of offences under employment standards, then, yes, I think the federal government needs to know about that.
From our perspective, better coordination there is not an issue, but we also have concerns that some very minor food safety violation or something like that will prevent someone from getting a foreign worker. That's of concern to us.
Mr. Maynard: I want to be clear in my answer about recourse, because I accept your position, too.
If an employer is fundamentally abusing their foreign workers — if they're not paying the salary they told ESDC they would pay; if they're making them work overtime without giving them overtime; or if they're not giving them the working conditions they promised — then that's abusive and that person shouldn't be accessing foreign workers.
My concern is when there are isolated breaches that don't meet that standard. The punishment has to fit the crime and, unfortunately, with the system in place, if there's a breach of condition it's the same result regardless of whether you do it to 90 employers or 1 employee.
The Chair: Colleagues, I will sum up with some observations and then I would like senators to stay behind so we can give drafting instructions with regard to our meeting next week.
Just before I do, I want to say that I think both of you have been very clear with regard to the issues that are of concern to you.
Ms. Reynolds, I think we would all heartily support your suggestion that human resource issues within the industry are of the highest possible standards and probably will go a very long way if the industry itself can regulate those issues to deal with many of the concerns that you and the public have, perhaps with slightly different points of view.
Mr. Maynard, certainly the issues you have identified in terms of what the regulations look like, if in fact the budget bill passes, are the issues that will determine the extent to which your concerns are well-founded in terms of the breadth at which the issues will apply. I think there is no question that the hope would be that the way they are interpreted does not unnecessarily harm employment and employers in Canada with regard to the overall issues but, on the other hand, to ensure that those situations which you summarized very well in your last comments are indeed prevented to the highest degree possible.
I want to thank you both for the way you've articulated the issues that you see as concern. I can assure you we have heard them. I thank you for that.
With that I'm suspending the meeting and I will ask that the room be cleared as the committee goes in camera for a brief session.
(The committee continued in camera.)