April 8, 2013

RBC – Are Canadians Losing Their Jobs?

Posted by admin - Bellissimo Law Group PC

Posted by: Mario D. Bellissimo LL.B. C.S.

In my interview with Kathy Tomlinson of the CBC I confirmed that Canadians should not be losing their jobs.  Although I cannot comment specifically on the RBC, iGATE story, in its simplest terms foreign workers come to Canada in one of three ways.   In each instance Canadians should be protected, execution and interpretation aside, the rules are in place.

(1)   Labour Market Opinion Process

One, and this is by far the most common avenue, is through the Labour Market Opinion(LMO) Process where an officer from Service Canada assesses the need for a foreign worker and the job offer on a number of rigorous factors including (a) Genuineness, (b)  Neutral or positive effect on the Canadian labour force, (c) Employers must comply with federal and provincial laws (d) Officers can undertake a retroactive assessment of the past 2 years to ensure wages, working conditions & occupation are substantially the same (STS) as when the LMO was issued (e) Must assess justified exemptions to STS and (f) If not, employer can be placed on a 2 Year Black List.

In assessing the factors regarding the effect on our Labour Market an Officer must further look to (a) job creation/retention for Canadian Citizens (CC) and Permanent Residents (PR) (b) creation or transfer of skills and knowledge (c) to fill a labour shortage (d) wages are consistent with prevailing wage rate (e) reasonable efforts to train or hire CC or PR’s – advertising, (f) effect on any labour dispute. LMO-based work permit is the default rule for temporary foreign workers, unless an exemption applies. The exemptions are meant to be quite specific.

(2)   No Work Permit or LMO Required

In these cases an immigration officer from Citizenship and Immigration Canada (CIC) determines if the person(s) entering Canada are business visitors (without directly entering the Canadian labour market),  foreign representatives and their family members, military personnel,  foreign government officers,  performing artists (buskers, WWE wrestlers, rodeo contestants, circus, as examples – note that a band performing at bars, or actors in a Canadian theatrical production, on the other hand, would require both a work permit and LMO),  athletes and team members (NHL Players, professional and amateurs, including coaches and trainers, coming to participate in sports activities or events),  public speakers,  news reporters and media crews, emergency service providers (for preserving life and property, at time of flooding, natural disasters, fires, or medical emergency) and on campus employment.

(3)   No LMO, Work Permit Required- Canadian interests: significant benefit to Canada, reciprocal employment, or charitable/religious work

Within this third group a work permit is still required (at border/Visa Office) and issued by CIC officers.  With respect to “Significant benefit” – this category is intended to provide flexibility in issuing work permits where LMOs are not available, and a specific exemption is not applicable, but the balance of practical considerations argues for the issuance of a work permit in a time frame shorter than would be necessary if obtaining an LMO. It is intended to address those situations where the social, cultural, and/or economic benefits to Canada of issuing the work permit are so clear and compelling that the importance of the LMO can be overcome. The law is clear that it should not be used to try to circumvent the LMO process.  This category includes: entrepreneurs, self-employed candidates seeking to operate a business in Canada, intra-company transferees (professionals, specialized knowledge workers, etc) must be employed, retained for 1 year with company – transferring their expertise and emergency repair personnel (i.e. personnel whose admission required to carry out emergency repairs to industrial or commercial equipment in order to prevent disruption of employment).   “Reciprocal employment” –International Experience Canada program (i.e. working holidays), academic exchanges and “Charitable or religious work” include those carrying out duties for a Canadian religious or charitable organization, so long as not the workers are competing directly with Canadians in the labour market.  Others may enter pursuant to Fair trade agreements (International Agreements) – NAFTA, GATS.

Multi-national companies can transfer workers usually termed an intra-company transferee (ICT) – usually under the significant benefit category under which such workers are LMO-exempt because they are considered to enhance the overall competitiveness of Canadian entities in overseas markets.  It is generally more of an exceptional category, and the workers must be executives, senior managers or those with specialized knowledge. A work permit under this category (as specialized knowledge workers) can be renewed for up to 5 years, which also makes it appealing.  So whatever the point of entry to Canada an assessment as to impact on Canadians must be considered by either Service Canada or CIC officers.  As a side note, when the 2013 budget was introduced on 21 March 2013, the Federal Government announced some changes to the TFWP – the objectives in these changes are to push companies away from relying on foreign workers and to seek Canadians for the jobs. They are proposing longer advertising periods, and in more places, a processing fee for the employer applying for an LMO, the removal of requirements in job ads that the person speak a foreign language, etc.  So although I cannot answer the question are Canadians losing their jobs at RBC to foreign workers, no system is infallible and execution and interpretation can be wild cards but the system is robust and rigorous.  All said and separating ourselves from sometime visceral responses, there remains great need for foreign workers in many areas and the law is structured to protect Canadian labour.  If Canadians here or in any case lose their jobs to foreign workers it will not go unnoticed. It will be interesting to see how this all unfolds.