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Proposed change to afford certain temporary foreign workers with increased mobility

Immigration, Refugees and Citizenship Canada (IRCC), and Employment and Social Development Canada (ESDC), have proposed an amendment to the Immigration and Refugee Protection Regulations (IRPR), which would provide increased employment mobility to certain foreign workers under the Temporary Foreign Worker Program (TFWP). The proposed amendment was published on June 22, 2019, in Part I, Volume 153, Number 25 of the Canada Gazette.

Under the TFWP, to hire a foreign worker, employers must obtain an approved Labour Market Impact Assessment (LMIA) from ESDC, pursuant to which IRCC issues a work permit. The current program only authorizes the issuance of an employer-specific “closed” work permit. Foreign workers are, therefore, completely dependent on the employer noted on the work permit. Should a foreign worker wish to leave the current employer to take up new employment, a new LMIA and work permit would currently be required. This is a costly process, requiring a great deal of time and effort. Moreover, the costs and effort would primarily be required on the part of the new employer, which only makes finding such an opportunity more difficult.

As a result of the above, the TFWP in its current form, grants a great deal of power to employers. As many foreign workers are unlikely to find another employer willing to navigate the process of obtaining a new LMIA, these workers have little option but to endure difficult employment conditions. Considerations such as these have prompted IRCC and ESDC to propose the change.

The proposed amendment would introduce LMIAs and work permits that are occupation-specific instead of employer-specific. Occupations in Canada are defined and organized in accordance with the National Occupational Classification (NOC), which assigns each occupation a four-digit NOC code. Pursuant to the proposed amendment, the new LMIAs (and the resulting work permits) would instead be specific to a particular NOC code, and not to a specified employer. This would afford foreign workers increased employment mobility by allowing them to change employers without first obtaining a new LMIA or work permit, so long as they remained in the same occupation. This would remove the most significant barrier to finding suitable alternative employment, as new employers would not be burdened with the cost, time and efforts required to support a new LMIA application. With this barrier removed, the effect would be to restore some power to foreign workers, allowing them increased opportunity to leave undesirable employment situations.

Notably, the proposed change to the TFWP would not affect all streams of the LMIA. Instead, it is intended to target two LMIA streams that are used to employ the most vulnerable of temporary foreign workers; the Low-wage Stream and the Primary Agriculture Stream.

The High- or Low-wage Streams of the LMIA are defined by reference to a provincial or territorial median hourly wage, as published by ESDC. By way of example, the Ontario median hourly wage is currently CA$22.50. Therefore, positions in Ontario that offer a wage at or above the median hourly wage are processed under the High-wage stream, while positions offering a wage lower than this are processed under the Low-wage Stream.

As its name suggests, the Primary Agriculture Stream is used to employ foreign workers on a farm, nursery or greenhouse. Such employment will involve one of the following: the operation of agricultural machinery; obtaining raw animal products for market; or the processing of raw products, the planting, care, harvesting or preparation of crops, trees, sod or other plants for market.

The two above LMIA streams are primarily used to employ low-skilled foreign workers, as these positions require little-to-no education and provide workers with minimal wages. As a result, the proposed amendment to the IRPR should provide increased employment mobility, and therefore, power in the employer-employee relationship, to the most vulnerable of Canada’s temporary foreign workers.

It remains to be seen whether IRCC and ESDC will move forward with the amendment, and whether there is any appetite to provide similar changes for the LMIA streams used for more highly-skilled foreign workers.

Proposed change to afford certain temporary foreign workers with increased mobility

Dentons’ Employment and Labour Seminar

You are invited to the Dentons’ Labour, Employment and Pensions group half-day seminar on emerging workplace and human resources issues. Join us on May 31st at this complimentary seminar to discuss topics such as:

CHRP accreditation

This program may be eligible for recertification points.

CPD accreditation

This program may be eligible for substantive hours required by the Law Society of Ontario.

Agenda

8:30 a.m.Registration and breakfast
8:50 a.m.–9:55 a.m.Opening remarks and guest speaker to give an update on drug and alcohol testing 
10:10 a.m.–12:40 p.m.Breakout sessions
12:40 p.m.Lunch and networking

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events at melis.dimitriou@dentons.com or +1 416 361 2336.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Dentons’ Employment and Labour Seminar

Employment and labour law trends to watch for in 2019

Date: January 17, 2019
Time: 9-10 a.m. PT,  10-11 a.m. MT, 12-1 p.m. ET

Join us for a complimentary 1 hour webinar where we’ll highlight and identify the changes in Employment and Labour law that you need to know about and the trends that can be expected to impact your workplace in 2019.

Topics will include:

  • A roundup on the big changes to workplace legislation across the country
  • US Immigration and cross-border travel in light of the legalization of cannabis in Canada

Please confirm your attendance by Tuesday, January 15, 2019.

CPD/CLE Accreditation

LSBC: This session will be registered for 1 hour of CPD credit with the Law Society of British Columbia.
LSO: This program is eligible for up to 1 substantive hour with the Law Society of Ontario.

Barreau du Québec: This program will allow participants to earn 1 CLE hour with the Barreau du Québec.

This session is only available via webinar

Speakers

Questions

Please contact Carla Vasquez, Events Manager, at carla.vasquez@dentons.com or +1 416 361 2377.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Employment and labour law trends to watch for in 2019

More Legislative Changes Coming with Bill 66

Bill 66, Restoring Ontario’s Competitiveness Act, 2018 was recently introduced in the Ontario Legislature (“Bill 66”).  Bill 66—as the name suggests—aims to make Ontario more competitive by reducing regulatory burden and giving businesses more flexibility.

Bill 66 proposes to make the following changes to existing legislation:

  • Excess Hours of Work and Overtime Averaging Applications: Bill 66 proposes to amend the Employment Standards Act, 2000 (“ESA”) to no longer require approval from the Director of Employment Standards of an application for excess hours of work and overtime averaging.

Employers would still be required to enter into written agreements with employees to have employees work excess hours and to average overtime hours worked.  Additionally, employers can only average an employee’s hours of work for the purposes of calculating overtime pay over a maximum of four (4) weeks.

  • ESA Poster: Bill 66 proposes to remove the requirement for employers to provide both the ESA poster to employees and post it in the workplace. Employers will only have to provide the most recent version of the ESA poster to the employees.
  • “Non-Construction Employers”: Public bodies, including municipalities, school boards, hospitals, colleges and universities, will be deemed “non-construction employers” through an amendment to the Labour Relations Act, 1995 (“LRA”).

This proposed amendment to the LRA will help to prevent certain broader public sector entities from becoming bound to collective agreements for the construction industry, when these entities are not actually in the construction business.

  • Merging Pension Plans: The Pension Benefits Act will be amended to make it easier for private-sector employers to merge single-employer pension plans with jointly sponsored pension plans.
  • Exemption from Guardrail Requirements for the Auto Sector: For assembly lines, there will be a new, targeted exemption from guardrail requirements for a conveyor and raised platform.
  • Workplace Hazardous Materials Information System (WHMIS) regulation: This proposed amendment to WHMIS regulations would allow new labels to be placed on old containers, preventing the need to dispose of chemicals with old labels. By removing the need to re-purchase newly labeled chemicals unnecessarily, this would result in saving Ontario universities an estimated $60.2 million to $107.9 million.

Bill 66 was introduced and carried first reading on December 6, 2018.  As Bill 66 progresses through the legislature, the proposed amendments may change and new amendments may be put forth.  We will continue to keep you updated.

The author would like to thank Jonathan Meyer for his assistance with this blog.

More Legislative Changes Coming with Bill 66

Going, Going, (Mostly) Gone: Ontario Conservative Government Announces Targeted Rollback of Bill 148 Amendments to the Ontario Employment Standards Act and the Ontario Labour Relations Act

Earlier today, Premier Doug Ford followed through on his promise to revisit the previous Liberal government’s labour reforms by introducing legislation that eliminates many of the most controversial aspects of Bill 148. The changes include:

  • Minimum wage increase to $15.00/hr effective January 1, 2019 is cancelled – the existing minimum wage of $14.00/hr will be maintained and will be re-indexed starting in October 2020;
  • 2 paid emergency leave days will be removed – personal emergency leave days will now be 8 days consisting of up to three days for personal illness, two days for bereavement, and three days for family responsibilities;
  • The ban on employers requesting doctor’s notes is removed – employers will be able to ask for reasonable evidence from qualified health practitioners in support of an employee’s request for personal emergency leave days;
  • Equal pay for equal work will be removed, on the basis of employment status and assignment employee status. However, the requirement for equal pay on the basis of sex will be maintained.
  • The new scheduling and on-call provisions will be revoked;
  • The reverse onus provision regarding independent contractors will be revoked;
  • The expansion of the automatic card based certification for industries outside of construction will be revoked;
  • The 20% threshold for unions to apply for employee information is gone;
  • The new first contract arbitration provisions will be reversed; and
  • The doubling of fines under the Ontario Employment Standards Act, 2000 will be reversed.

That said, the new legislation preserves employees’ entitlements to the previously announced enhanced vacation benefits as well as the new leaves of absence (i.e. Child Death and Domestic or Sexual Violence Leave).

These changes are likely to be welcomed by employers across the province. In particular, the return to the pre-Bill 148 position on personal emergency leave and scheduling will eliminate a great amount of uncertainty amongst employers. We will be following the progress of this legislation closely and will be providing regular updates as the Bill progresses.

Going, Going, (Mostly) Gone: Ontario Conservative Government Announces Targeted Rollback of Bill 148 Amendments to the Ontario Employment Standards Act and the Ontario Labour Relations Act

What a PC Government Means for Workplaces in Ontario

Over the past 15 years under a majority liberal government, workplaces in Ontario saw many employment and labour law reforms. Most recently, the liberal government introduced Bill 148 which made significant changes to the Employment Standards Act, 2000 and the Labour Relations Act, 1995, among others.

When Ontario went to the polls on June 7th, voters elected a PC majority government.  Given this result, Ontarians can expect to see many more changes to employment and labour laws, including changes and rollbacks to those laws introduced under Bill 148.  But, what does Doug Ford leading a PC majority government mean for workplaces in Ontario?

As we await the Throne Speech setting out the government’s priorities, it remains unclear how the new PC government will proceed with its employment and labour agenda.

What is certain, however, is Doug Ford’s promise not to follow through with the Liberals’ planned increase to the minimum wage rate, which is set to increase to $15.00 per hour on January 1, 2019.  The PC government will freeze minimum wage at its current rate of $14.00 per hour. This may be history repeating itself after the PC government previously froze minimum wage between 1996 and 2003.

Although Doug Ford has weighed in on freezing minimum wage, he has yet to weigh in on any other employment and labour reforms. Uncertainty will remain until the premier-designate takes office.

Ontarians may also see changes to the Pay Transparency Act, given that the PC government voted against this legislation during the last legislative session.  The Pay Transparency Act was introduced by the liberals to increase transparency in hiring processes and to implement pay disclosure measures.  The legislation is to come into effect on January 1, 2019, until further notice by the PC majority.

Stay tuned for further updates.

What a PC Government Means for Workplaces in Ontario

ESA Update: Ontario Government to Temporarily Reinstate Pre-Bill 148 Public Holiday Pay Formula Effective July 1, 2018

As you are aware, Bill 148 made substantial changes to the Employment Standards Act, 2000 (“ESA”) that took effect on January 1, 2018.  Among those changes was a new formula for calculating public holiday pay.  This new formula required employers to calculate public holiday pay based on the regular wages earned in the pay period before the public holiday, divided by the number of days the employee worked in that pay period.

In a surprising turn of events, the Ontario government announced on May 7, 2018 that it will be reviewing the public holiday provisions of the ESA. The Ministry of Labour will conduct this review in 2018 and interested parties can provide submissions on the Public Holiday Pay Review to exemptions.review@ontario.ca.

More surprising—the government has also enacted a new regulation, Ontario Regulation 375/18, which reinstates, on an interim basis, the old public holiday pay formula for all employers.  As a result, effective July 1, 2018, public holiday pay will be calculated under the old public holiday pay formula as follows:

Public holiday pay is equal to the total amount of the regular wages and vacation pay earned in the 4 weeks before the work week in which the public holiday occurred, divided by 20.

Ontario Regulation 375/18 is a temporary measure while the Public Holiday Pay Review occurs, which means the public holiday pay formula could change again after the Public Holiday Pay Review is complete.

To read Ontario Regulation 375/18, click here: https://www.ontario.ca/laws/regulation/r18375.

For employers who have updated their public holiday policies to reflect the new formula under Bill 148, you will need to revisit these updated policies (or simply revert to your old public holiday policies) in preparation for July 1, 2018. Additionally, employers who have implemented the new public holiday pay formula into their human resources information systems or payroll systems will need to ensure these systems are changed back to the old public holiday pay formula come July 1, 2018.

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ESA Update: Ontario Government to Temporarily Reinstate Pre-Bill 148 Public Holiday Pay Formula Effective July 1, 2018

Webinar: Employment and Labour law trends to watch for in 2018

Start: February 14, 2018, 12:00 PM EST
End: February 14, 2018, 1:00 PM EST

This session is only available via webinar

2018 has arrived with a roar as workplaces across Canada grapple with significant changes to the country’s workplace laws.

Join us for a complimentary 1 hour webinar where we’ll highlight the changes you need to know about and identify the trends that we expect to impact your workplace in 2018.

Topics will include:

  • A roundup of the big changes to Canada’s workplace legislation
  • #MeToo – How to effectively deal with sexual harassment in today’s workplace
  • The coming legalization of marijuana and its impact on the workplace
  • Transgender in the workplace: a practical guide

Register now

CPD/CLE Accreditation

LSBC: This session will be registered for 1 hour of CPD credit with the Law Society of British Columbia.
LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.
Barreau du Québec: This program will allow participants to earn 1 CLE hour with the Barreau du Québec.

Questions

Please contact Carla Vasquez at carla.vasquez@dentons.com or +1 416 361 2377.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

Webinar: Employment and Labour law trends to watch for in 2018

Posting Alert – Ontario Publishes Updated Version of Employment Standards Poster

In conjunction with its overhaul of the Employment Standards Act, 2000, the Ontario government has also published an updated version of the Employment Standards Poster. Employers must post the poster in the workplace in an area where it is likely to come to the attention of employees and provide a copy of the poster to its employees. As employment standards officers will no doubt be on the look-out for this poster, employers should ensure that they take steps to comply with this easy to spot obligation.

The new poster can be downloaded from the Ministry of Labour’s website at: https://www.labour.gov.on.ca/english/es/pubs/poster.php.

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Posting Alert – Ontario Publishes Updated Version of Employment Standards Poster

Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

The Ontario government has just passed the Bill 148 which amends the Employment Standards Act and the Labour Relations Act with a target effective date of January 1, 2018.  The Bill still needs to receive Royal Assent.

Key changes to the Employment Standards Act will include:

  • Raising the general minimum wage to $14 per hour as of January 1, 2018 and $15 per hour as of January 1, 2019
  • As of April 1, 2018 requiring the same rate of pay as paid to full-time employees for employees doing substantially the same kind of work including temporary help agency staff, casual, part time, temporary and seasonal workers
  • Increasing the minimum vacation to three weeks per year after an employee has five years of service
  • Increasing parental leave for birth mothers who have taken maternity leave to 61 weeks (from the current 35 weeks);  increasing parental leave for adoptive parents and fathers to 63 weeks (from the current 37 weeks)
  • Extending the availability of personal emergency leave days to employers with under 50 employees
  • Requiring the first two days per year of personal emergency leave to be paid with the remaining eight days unpaid
  • Extending the leave of absence to 104 weeks for death of a child as a result of a crime to the death of a child for any reason
  • Increasing the current 52 week leave of absence in the case of child disappearance as a result of a crime to 104 weeks
  • Increasing family medical leave from 8 weeks to 28 weeks
  • Adding a new domestic violence/sexual violence leave of absence ; up to 10 days off and up to 15 weeks of leave per year will be available (first five days to be paid) where an employee or an employee’s child experiences domestic or sexual violence and needs time off for medical attention, counselling, to relocate, for legal assistance or law enforcement reasons

There are numerous changes that will come into effect on January 1, 2019 concerning scheduling including the following:

  • If a shift is cancelled within 48 hours of its start, employees will be paid 3 hours of pay
  • Employees can refuse a shift without repercussion if they receive less than 96 hours of notice
  • On-call employees who are either not called into work or work fewer than three hours must be paid three hours of their regular pay rate

The Ministry of Labour has announced that it will hire up to 175 additional Employment Standards Officers to enforce the changes.

Key changes to the Labour Relations Act will include:

  • Card-based union certification for the building services industry, the home care and community services industry and the temporary help agency industry
  • Allowing unions to access employee lists and certain contact information provided the union can demonstrate that it has the support of 20% of employees in the proposed bargaining unit.
  • OLRB can conduct votes outside the workplace, including electronically and by telephone
  • Employees in a bargaining unit may only be disciplined or discharged for just cause in the period between certification and the date on which a first contract is entered into, and during the period between the date the employees are in a legal strike or lock-out position and the date a new collective agreement is entered into (or the date on which the union no longer represents the employees)
  • Maximum fines will increase to $5,000 for individuals and $100,000 for organizations (formerly these fines were $2,000 for individuals and $25,000 for organizations).
Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017