Creating a new program won’t fix the old one

  • August 29, 2019

When your wheel has a wobble, the solution is to fix the wheel, not reinvent it.

That’s the principle at play in the Immigration Law Section’s response to a notice in the Canada Gazette regarding a proposal from Immigration Refugees and Citizenship Canada along with Employment and Social Development Canada to amend regulations to allow occupation-specific work permits for temporary foreign workers.

In its submission, the Section says rather than creating a new program, the government should concentrate on improving the services it already offers.

“If the intent of the occupation-specific work permits is to give temporary foreign workers easier and faster options for changing employers, we recommend that the government focus on improving processing times to obtain new work permits, rather than creating a new program, which would require significant resources and could have unforeseen consequences and create new risks of abuse,” the Section says.

While it doesn’t agree with the idea of occupation-specific work permits, the Section nonetheless offered suggestions for improving the proposal should the government decide to go ahead with it.

While the occupation-specific work permits would remove some barriers to mobility, others would continue to exist – for example, TFWs would only be able to accept job offers from employers with valid labour market impact assessments, and those employers could be hard to identify.

“The LMIA requirement is needed to prevent employers from using the OSWP mechanism to circumvent other TFWP rules or to create competition for Canadians seeking employment,” the Section notes.

On the other hand, a TFW might be more willing to leave an abusive employment situation if a regime like the OSWP meant that they no longer had to obtain a separate work permit, and if there was a clear path to finding a new employer with an LMIA.

The government would have to set up some kind of resource, however, so that TFWs could easily find out whether the new employer had the requisite LMIA. The Section makes a variety of suggestions, including a database to match TFWs with employers with valid LMIAs, as well as enhancing communication with TFWs by providing communication in many languages.

“The government should also consider creating an independent liaison service for all program streams outside of the seasonal agricultural and low-wage program streams, with similar functions to consular liaison officers in SAWP,” the Section says. “An independent liaison office would have a mandate to offer conflict resolution services, contribute to overall program oversight (including approval of transfers), and provide communications support to assist TFW seeking mobility from their current workplaces.”

The OSWP’s big drawback for employers is an increased possibility of losing the time and money invested in hiring TFWs. For example, the Section says an agricultural employer would pay between $8,000 and $12,000 in costs associated with TFWP employer obligations.

“With the OSWP, an employer could make a significant investment in the LMIA process, only to see TFWs leave their position shortly after to work for another employer. The high costs of the process could potentially bankrupt employers, especially small employers who pay for transportation, recruitment and other skills training costs for TFWs.”

These losses could be mitigated by setting a time period in which TFWs may not seek new employment – the Section recommends six months. Also, any employer who poaches TFWs with the promise of higher pay should be required to reimburse the initial employer for some or all of the out-of-pocket expenses incurred, including the cost of the work permit, transportation, and recruitment.

The Section makes a number of suggestions for changing the work permit process to support TFW mobility: first and foremost, improving processing times.

“A current barrier to TFW mobility is the processing times for a new LMIA and work permit. Assuming employers have or can obtain blanket LMIAs, there should be an easy method to add a name to an LMIA with service standards of 48 to 72 business hours. We also recommend that the government develop innovative ways to vary work permits. Driving to a border to flagpole should not be a primary alternative to online filing.”

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