All employers of momentary international staff in Canada want to know how the employer compliance regime works. Each Immigration, Refugees and Citizenship Canada (“IRCC”) in addition to the Division of Employment and Social Improvement (“ESDC”) recurrently audit and examine the employers of international staff to make it possible for they’re complying with the Momentary International Employee Program and/or the Worldwide Mobility Program (that are the 2 important applications via which international nationals can work in Canada). Each ESDC and IRCC have indicated that about 25% of employers can anticipate an inspection in any given 12 months.
Most of those inspections and audits begin with the employer receiving a letter from the Authorities of Canada informing them that they are going to be examined on a large number of things, together with whether or not they have employed the international nationwide within the job that they had been presupposed to, whether or not they paid the wages that they had been presupposed to, whether or not the employer complied with legal guidelines regulating employment, whether or not they maintained information and whether or not they took cheap efforts to supply a office that was freed from abuse.
I’ve embedded beneath the usual employer compliance letter that’s despatched out firstly of an audit.
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Penalties of Non-Compliance
There are a number of penalties to Canadian employers of non-compliance with the Momentary International Employee Program and/or the Worldwide Mobility Program, together with doable fines and prohibitions on hiring international staff. The fines can vary from just a few hundred {dollars} to as much as a most of $1,000,000.00 in a calendar 12 months. The bans can vary from just a few months to a everlasting ban.
The Authorities of Canada maintains what is usually referred to as an Employer Blacklist on its web site. The Employer Blacklist offers a superb instance of the varieties of fines and prohibitions that employers who’ve been discovered to be non-compliant can anticipate.
Sources of Info
Whereas some employers of international staff intentionally breach program situations, most don’t, and are merely unaware of program necessities. As such, it is vital that the employers of international staff both search authorized illustration to verify compliance, or familiarize themselves with the data within the following three hyperlinks:
IRCC web site on what constitutes compliance
IRCC web site on assessing penalties of non compliance
IRCC web site on assessing severity of a breach
Steps
An Inspection or audit sometimes begins with an employer receiving a normal kind from the federal government advising them that an Inspection is about to happen. It sometimes seems like the next:
Audit1
Greatest Practices
Because the Inpsection proceeds IRCC or ESDC will enter the outcomes right into a doc that resembles this.
If non-compliance is discovered, the Employer could also be requested to supply justification for the non-compliance. Acceptable justification will end in an employer not being fined or banned from utilizing this system.
AuditJustify
There are a number of steps that employers can take to reduce the danger of being discovered non-compliant.
These embrace:
1 Be sure that duty for international staff is centralized.
It can be crucial that firms would not have people making commitments to international staff that the folks within the firm who’re liable for the hiring and employment of international staff are unaware of. Whereas the Authorities of Canada has taken steps to reduce the danger of this, similar to via the creation of the Employer Compliance Portal, it’s stunning how often particular person managers inside an organization are capable of commit the corporate to enforceable phrases and situations with the federal government. As such, it’s crucial that Human Assets make it clear that any affords of employment, immigration nominations and modifications to phrases of employment of international staff undergo them.
2. Don’t change any phrases of somebody’s employment with out first consulting a lawyer or checking the IRCC / ESDC web site to find out if the change would represent a breach.
Employers are sometimes stunned at what constitutes a breach of the Momentary International Employee Program and the Worldwide Mobility Program. For instance, the IRCC web site states the next about when a promotion will end in non-compliance.
As nicely, raises, failure of a short lived international employee to acquire everlasting residency, modifications within the location of employment and the failure of an employer to retain copies of ads can all result in findings of non-compliance.
3. Have somebody do an occasional spot audit of paystubs to make it possible for an worker is being paid in accordance with the data that was supplied to the Authorities of Canada when that individual was employed.
This can be a service that we’ve not too long ago began providing, and it has labored wonders in serving to employers spot breaches that they could not have been conscious of. It’s notably useful for small employers, who might not be aware of how extra time is calculated, how averaging agreements work, provincial guidelines for domestics, holidays, the requirement to maintain timesheets and different technical necessities that may be tough. The service is definitely fairly easy, and entails a “mock audit” utilizing the identical questionnaire as what the federal government makes use of, and which is embedded above. Certainly, I might think about that many of the employers who had been discovered non-compliant with the Momentary International Employee Program or the Worldwide Mobility Program might have prevented such a discovering if that they had accomplished a mock audit.
4. Be sure that all facets of a international employee’s employment is documented on the time that it happens. This contains paystubs, hours of labor, variations to employment, and many others.
One of many largest errors employers make will not be correctly conserving information. Employers should cooperate and supply paperwork as requested to be able to reveal compliance. In Farms v. Canada (Employment and Social Improvement Canada), for instance, an ESDC Inspector penalized a farm as follows:
Based mostly on info supplied by the employer, the inspector decided that 20 Momentary International Staff had deductions of $200-$250 throughout the first 6 weeks of employment. The employer said they supplied cost advances nonetheless the employer couldn’t reveal that the cost advances had been made. Additional, there’s a requirement within the Seasonal Agricultural Employee Program employment contract to have a written settlement with the international staff for any further deductions being taken from pay cheques. The employer couldn’t present any proof of written agreements with the international staff, confirming the international employee’s consent to the deductions. The inspector couldn’t verify the existence of cost advances or the consent for the additional deductions straight with the Momentary International Employee(s) as they’re now not in Canada.
5. Examine whether or not the corporate has harassment insurance policies, and if not, develop them.
Many employers are unaware that in British Columbia it’s necessary for employers to have written harassment and bullying insurance policies. The failure to have such a coverage can result in a discovering that the employer didn’t take steps to supply a office that’s free from abuse.
In penning this put up, my aim is to not deter firms from hiring international staff. In at present’s labour market, it’s rising more and more important to take action. Nonetheless, it’s crucial that firms totally perceive the principles earlier than they accomplish that, and implement finest practices as early as doable.
6. Examine work allow situations.
Most work permits have situations on them. You will need to evaluation them fastidiously. The next PDF incorporates inner IRCC Q&A which reveals varied eventualities of how employment location could be restricted.
Employer Compliance Location
A201803522
Jurisprudence
In Millenium Pacific Greenhouses Partneship v. Canada (Employment and Social Improvement), 2022 FC 960, Justice Norris dominated that it was unreasonable for an Inspector to find out that ” merely due to an employment relationship, the workers would defend the employer’s model of occasions, whether or not it was true or not” and that “info introduced by the corporate in its personal defence can’t be discovered much less credible merely on the idea of the bald assertion that it’s “in [the company’s] finest curiosity” – in different phrases, that it’s self-serving.” The Court docket additional said:
this Court docket has discovered it essential to intervene when choice makers have diminished the worth of proof because of this alone and with out significant consideration of different elements probably affecting the load of the proof (e.g. being per different credible proof, being corroborated in materials respects, and so forth). See Tabatadze v Canada (Citizenship and Immigration), 2016 FC 24 at paras 4-7, and the circumstances cited therein; see additionally Aisowieren v Canada (Immigration, Refugees and Citizenship), 2020 FC 305 at paras 15-16 and the circumstances cited therein.
In Luigi’s Concrete Ltd. v. Canada (Employment and Social Improvement), 2024 FC 1446, Madam Justice Pallota affirmed that firms can’t cut back a international employee’s wage on the idea that they obtain financial advantages elsewhere, like free lodging. The Court docket additionally reiterated that justification requires that an worker be justified.
Rep Q&A
