Do you hire foreign workers in Canada? Or do you wish to hire foreign workers in Canada?
We have summarized a relevant case, so you will not find yourself in legal trouble if you wish to hire foreign workers in Canada.
- The Relevant Case
On January 2015, the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 also known as the “Frankie’s Burgers”.
In this case, the Applicants (restaurant employers) were seeking positive Labour Market Impact Assessment (LMIA) with regard to the hiring foreign nationals (as food counter attendants at two restaurant locations operated by the Applicants), pursuant to the Temporary Foreign Worker Program [TFWP]. However, the officer of Economic and Social Development Canada (ESDC) refused to issue positive LMIA based on three principal grounds, namely, the Applicants’ failure to demonstrate (i) that there was a reasonable employment need in their business for the full-time jobs they posted, (ii) the existence of a labor shortage for the FCA positions, and (iii) that they had made sufficient efforts to hire Canadians for their vacant positions.
The Federal Court ruled that Employers are required to meet the minimum LMIA recruitment requirements before they apply for the LMIA which the Applicants in this case failed to do so.
- What are the important issues that Employers need to understand in hiring foreign workers to ensure issuance of positive LMIA?
- Whether or not greater effort to recruit part-time workers to fill the vacant positions should be made.
Are employers given discretion as to whether to seek full-time or part-time employees? It is worthy to note that an Applicant for LMIA should sufficiently demonstrate that there is a reasonable employment need for the jobs that they had advertised. Applicants must indicate willingness in their advertisements to hire part-time workers.
If employers were given some latitude in its hiring even within the TFWP, is this an absolute rule? The Guidelines in ESDC website make it very clear that employers are expected to at least meet the minimum recruitment efforts required for lower skilled occupations before they apply for an LMIA.
- Whether or not there is a necessity to demonstrate the existence of a labor shortage.
Labor shortage should be established by the results of Employer’s recruitment efforts. The fact that the unemployment rate is low in a geographic region does not mean that there is a labor shortage.
- Whether or not it is important to meet the minimum advertising requirements for the positions they were seeking to have filled.
As set forth in the Guidelines, advertisements must (1) include both the “location of work” (local area, city or town)” and the business address of the place of employment, and (2) it is reasonable to expect that potential candidates for part-time positions in a restaurant may well want to know this information before applying for an advertised position.
In hiring foreign workers, it is not only important to follow the ESDC Guidelines, but it is also important to fully understand the rationale behind every requirement because although they are not binding upon the officers who review the applications for LMIA, it is fair and reasonable for officers to apply and follow them, unless exceptional circumstances or those unusual in nature arise.
In order for a foreign worker to work in Canada, his/her prospective employer must first obtain a positive Labour Market Impact Assessment (“LMIA”) from ESDC. A positive LMIA is issued when ESDC is satisfied that the employment of the foreign national is likely to have a neutral or positive impact on the Canadian labour market. LMIA is previously known as the Labour Market Opinion (LMO).
There are instances where a positive LMIA is not required for CIC to issue a work permit and there are exemptions where a work permit is not required to work in Canada. However, the LMIA and WP route applies to most foreign workers seeking employment in Canada.
Do you employ foreign workers in Canada for your business?
Are you a foreign worker in Canada who wants to work in Canada longer?
If you would like to discuss how to obtain a positive LMIA from ESDC or a work permit from CIC, please complete our FREE online assessment. This is only for serious individuals ready to invest in solving their immigration problems and want to see positive RESULTS.
Employers, what are your thoughts on this Federal Court Ruling?
What are your experiences from dealing with ESDC officers?
How does this ruling affect your approach to hiring foreign workers?
Maple Life Immigration welcomes inquiries about this topic. Our office is located at #708-1155 West Pender St, Vancouver, BC, V6E 2P4, by appointment only.
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