TFW IRPA-REG Recommendations

PREVENTION OF ABUSES OF TEMPORARY FOREIGN WORKERS IN CANADA:
IS THE CONSERVATIVE PROPOSITION TO AMEND THE REGULATIONS OF THE IMMIGRATION ACT ON THE RIGHT
TRACK?
Policy recommendations to the attention of MPs of the opposition parties
More information: The Domestic Worker Center (info@travailleuses.org) or MigrantWorkersRights-Canada
(coordination_canada@migrantworkersrights.net)
SUMMARY
Except for an amendment concerning the monitoring of employers who keep years after years a workforce of foreign
workers under precarious legal status instead of switching to the native/immigrant workers (see Conservative proposition
# 5.2, p. 18), the changes to the IRPA-regulations proposed on Oct. 9 by the Conservative administration “forget” once
again to address the most fundamental elements of reform identified on May 6 2009 by the House of Commons and
considered necessary if we want to minimize systematic abuses of foreign workers under temporary permit by employers
and immigration/recruitment/placement agencies/consultants, according to community associations on the field and
human rights organizations. Worst, one of the proposed changes would make the abused workers responsible for the
abusive behavior of their employers (see Conservative proposition #1, p. 10).
In a nutshell, NO reform of the IRPA-REGULATIONS can pretend to address the issue of systemic labour and human rights
abuses of temporary foreign workers in Canada unless
- it abolishes the employer-tied work permit (and replace it by a sector/province-specified work permit);
- it abolishes the work permit tied to an obligation to sleep within the employer’s house;
- it makes all temporary foreign workers (and not only the ones associated to skill level 0, A, or B) eligible to ask after 24
months of work in Canada, on the basis of their Canadian experience, for permanent status;
- it forces the federal administration to regulate and monitor recruitment/immigration/placement agencies/consultants,
and to hold co-responsible any employer using the services of such abusive agency/consultant.
Moreover, in order to fully respect the human dignity of all temporary foreign workers recruited to fill Canadian labour
shortages, the regulations must allow a temporary open work permit/study permit to the spouse/child for all temporary
foreign workers - regardless of the skill level, and recognized a right to leave Canada temporarily for family/personal
1
matters, during the validity period of the work permit, without loosing the right to work in Canada or the possibility to ask
in the future for permanent status.
The first part of this document is a list of the URGENT amendments of the IRPA-Regulations “forgotten” by the
Conservative administration, and the second part (pp. 9-20) analyzes the proposed amendments – “to be blocked”, “ok”,
or “in need of significant wording modification”.
2
PART I: List of the URGENT amendments of the IRPA-Regulations “forgotten” by the conservatives that must be passed in
priority by the House
Considering that currently the Live-in Caregiver Program (LCP), the Seasonal Agricultural Worker Program (SAWP), the Foreign Worker Program for Low-
Skilled Workers (FWP-LS), the Program for domestic workers in Canada hired by FOREIGN nationals 1 and the Program for low-skilled foreign workers in
Canada hired by a FOREIGN employer2 allow or may allow simultaneously for the interdiction to change employer, the obligation to reside on the premise
with the employer and the impossibility to change status 3 and therefore do not respect the first article of the U.N. Supplementary Convention on
the Abolition of Slavery, the Slave Trade, and Institutions and PracticesSimilar to Slavery (ratified by Canada on Jan 10 1963)4; and
considering that live-caregivers, agricultural workers and other workers employed in so-called “low-skilled” occupations in Canada have endured an
administrative vulnerabilization that put them at risk of human and labour rights abuses since 1955 and that submissions with specific policy alternatives 5
have been presented regularly during the last decades to the Federal administration by dozens of community groups, human right NGOs and labour unions;
Considering that on May 6 2009 the House of Commons has adopted recommendations developed by the Standing Committee on Citizenship
and Immigration concerning the protection of the human rights of temporary foreign workers in Canada6, which concern in particular
(recommendation #20) the abolition of the employer-tied work permit, (#34) the abolition of the work permit tied to an obligation to reside with the
employer, (#4) the abolition of the 3-years limit for Live-in caregivers’ access to permanent residence procedures, (#6) the eligibility of all temporary
foreign workers to access permanent status after 24 months of work in Canada, and (#8) the eligibility of all temporary foreign workers to access open
work/study permit for spouse/children; and considering that, in their minority report to the House, the Conservative members of the Standing Committee on
Citizenship and Immigration did not dissociate themselves from the recommendations aiming (#20) at replacing work permits tied to a specific employer by
work permits tied to a specific occupation, (#34) at abolishing work permits tied associated with a live-in obligation; and (#4) at abolishing the immigration
eligibility criteria for caregivers of a 3-years limit for the completion of 2 years of work; and considering that (art. 185) the possibility for the government to
tie the worker under a temporary permit to a specific employer and (art. 113) the obligation for caregivers to live in the house of the employer are currently
integrated within the Immigration and Refugee Protection Regulations;
And finally considering that the Standing Committee on Citizenship and Immigration has also mention in two recent reports to the Federal administration
the necessity and the urgency of regulating the industry of recruitment/immigration/placement agencies/consultants7;
1
CIC Foreign Worker Manuel, Appendix C http://www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf
2
CIC Foreign Worker Manual, section 5.7, “business visitor” http://www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf
3
See among others Depatie-Pelletier 2008, Under Legal Practices Similar to Slavery: Canadian “Non White” Foreign Workers in “Low-Skilled”
Occupations http://www.cerium.ca/Under-legal-practices-similar-to
4
http://www2.ohchr.org/english/law/slavetrade.htm
5
See for exemple Immigrant Worker Center, Pinay, DTTM 2008, http://www.migrantworkersrights.net/canada/downloads/pdf-PAPIPFWC.pdf
6
http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3866154&Language=E&Mode=1&Parl=40&Ses=2
7
http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3560686&Language=E&Mode=1&Parl=39&Ses=2 and
3
The following modifications must be made in priority to the IRPA-Regulations (even if “forgotten” by the Conservatives):
LEGEND:
NECESSARY AND URGENT AMENDMENTS TO THE CURRENT IRPA-REGULATIONS8 THAT THE HOUSE MUST ADOPT
(1) Possibility for all IRPA- Specific conditions

foreign workers to REG
leave an abusive art. 185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:
employer without 185(b (a) the period authorized for their stay;
loosing the right to ) (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada,
work in Canada and including
/or the possibility to (i) the type of work,
ask for permanent (ii) the employer,
status after 24 (iii) the location of the work,
months of work (iv) the times and periods of the work, and
(v) in the case of a member of a crew, the period within which they must join the means of
transportation;
8
http://laws.justice.gc.ca/eng/SOR-2002-227/index.html
4
LEGEND:
(2) Possibility for all IRPA-

foreign workers to REG Permanent residence
leave the house of art.
an abusive 113(d 113. (1) A foreign national becomes a member of the live-in caregiver class if
employer without ) (a) they have submitted an application to remain in Canada as a permanent resident;
risking to loose the (b) they are a temporary resident;
possibility to access (c) they hold a work permit as a live-in caregiver;
permanent status (d) they entered Canada as a live-in caregiver and, for a cumulative period of at least two years
within the three years immediately following their entry,
(i) resided in a private household in Canada, and
(ii) provided child care, senior home support care or care of a disabled person in that household
without supervision, under a work contract specifiying the possibility of maximum number of
monthly evenings, nights and/or weekends shifts and associated overtime rate;
IRPA- Specific conditions
REG
art. 185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:
185(b (a) the period authorized for their stay;
) (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada,
including
(i) the type of work,
(ii) the employer,
(iii) the location province of the work,
(iv) the times and periods of the work, and
(v) in the case of a member of a crew, the period within which they must join the means of
transportation;
9
5
(3) Possibility for all IRPA- Canadian Experience Class
temporary foreign REG art. Class 87.1 (1) For the purposes of subsection 12(2) of the Act, the Canadian experience class is
workers to ask for 87.1 prescribed as a class of persons who may become permanent residents on the basis of their
permanent status experience in Canada and who intend to reside in a province other than the Province of Quebec.
on the basis of their
Member of the class
Canadian (2) A foreign national is a member of the Canadian experience class if
experience within
the three years (a) they
after having (i) have acquired (…) or
completed at least (ii) have acquired in Canada within the 36 months before the day on which their
24 months of work application for permanent residence is made at least 24 months of full-time work
in Canada (through experience, or the equivalent in part-time work experience, in one or more occupations
the immigration that are listed in Skill Type 0 Management Occupations or Skill Level A or B, C or D of the National
programs Occupational Classification matrix; and
developed for the
Canadian (b) they have had their proficiency assessed in the English or French (…)
(i) in the case (…) and
Experience Class or
(ii) in the case of a foreign national who has acquired work experience in one or more
the Live-in occupations that are listed in Skill Level B, C or D of the National Occupational Classification
Caregiver Class) matrix (…)
IRPA- Permanent residence
REG
art. 113. (1) A foreign national becomes a member of the live-in caregiver class if
113(1) (a) they have submitted an application to remain in Canada as a permanent resident;
(d) (b) they are a temporary resident;
(c) they hold a work permit as a live-in caregiver;
(d) they entered Canada as a live-in caregiver and, for a cumulative period of at least two years
within the three years immediately following entry ,
(i) resided in a private household in Canada, and
(ii) provided child care, senior home support care or care of a disabled person in that household
without supervision, sometimes during the evenings, nights and/or weekends;
6
LEGEND:
(4) Incitative for IRPA-REG See on p.14-15 the necessary improvements to the changes #2.5 and #3 proposed by the
employers to only use art. conservative administration
services of 200.1(2)
recruitment/immigration/ IRPA-REG ISSUANCE OFWORK PERMITS
placement art. 200(1) 200. (1) Subject to subsections (2) and
Work permits
agencies/agents (c) (3), an officer shall issue a work permit to

registered and monitored a foreign national if, following an exami-
by HRSDC officers nation, it is established that
(a) the foreign national applied for it in
accordance with Division 2;
+ (b) the foreign national will leave Cana-
da by the end of the period authorized
Incitative for foreign for their stay under Division 2 of Part 9;
workers to mention (c) the foreign national
abuses by employers (i) is described in section 206, 207 or
and/or 208,
recruitment/immigration/ (ii) intends to perform work descri-
placement bed in section 204 or 205 (…)
agencies/consultants (iii) has been offered employment
and an officer has determined under
section 203 (…) and or
OPEN WORK PERMIT
(iv) is a foreign national recruited/employed by an agency/employer listed by HRDSC following
section 200.1(2) or
(v) is the spouse or the child of more than 16 years old of a foreign national falling under subsection
(i), (ii), or (iii) and
(d) [Repealed, SOR/2004-167, s. 56]
(e) the requirements of section 30 are
met.
10
7
LEGEND:
(5) Possibility for all IRPA- ISSUANCE OF WORK PERMITS

temporary foreign REG art. Work permits 200. (1) Subject to subsections (2) and
workers to ask for 200(1) (3), an officer shall issue a work permit to
open work/study (c) a foreign national if, following an exami-
nation, it is established that
permit for their
(a) the foreign national applied for it in
spouse/child accordance with Division 2;
(b) the foreign national will leave Cana-
da by the end of the period authorized
for their stay under Division 2 of Part 9;
(c) the foreign national
(i) is described in section 206, 207 or
208,
(ii) intends to perform work descri-
bed in section 204 or 205 (…)
(iii) has been offered employment
and an officer has determined under
section 203 (…) and
OPEN WORK PERMIT
(iv) is a foreign national victim of abuse by an employer listed by HRDSC following section 200.1(2) or
(v) is the spouse or the child of more than 16 years old of a foreign national falling under subsection (i), (ii), or
(iii) and
(d) [Repealed, SOR/2004-167, s. 56]
(e) the requirements of section 30 are
met.
11
8
LEGEND:
(6) Possibility for all IRPA- INVALIDITY AND FUNCTION AS VISA

temporary foreign REG 209. A work permit becomes invalid when it expires or when a removal order
workers to leave Art. that is made against the permit holder becomes enforceable. After a first entry in Canada and during the period of the validity of the work permit, the
Canada temporarily 209 permit shall constitute a temporary visa allowing its holder multiple re-entry in Canada.
for urgent family or
personal matters -
without loosing the
right to work in
Canada or the
possibility to ask in
the future for
permanent status
12
9
PART II:
List of the amendments proposed by the current conservative administration – either “to be blocked”, “ok”,
or “to modify first”.
LEGEND:
MODIFICATIONS /ADDITIONS PROPOSED BY THE CONSERVATIVE ADMINISTRATION
SUMMARY OF THE RECOMMANDATION
NECESSARY MODIFICATIONS TO THE PROPOSED CHANGED BEFORE ANY ADOPTION BY THE HOUSE OF COMMONS
CHANGES PROPOSED13 TO THE IRPA REGULATIONS14 BY THE COMMENTS RECOMMENDATIONS TO OPPOSITION PARTIES
CONSERVATIVE FEDERAL ADMINISTRATION
#1 IRPA- Subject to section 185, the following A TEMPORARY FOREIGN WORKER
Making abused REG conditions are imposed on all MAY NOT KNOW THAT HIS/HER ART. 183(1)(B) MUST NOT BE MODIFIED – THE PROPOSED
workers art. temporary residents: EMPLOYER HAS BEEN AMENDMENT MUST BE BLOCKED
responsible and 183(1) (a) to leave Canada by the end of ADMINISTRATIVELY TAGGED AS
subject to the period authorized for their stay; OFFICIALLY ABUSING TEMPORARY
deportation in (b) to not work, unless authorized by FOREIGN WORKERS – THE WORKER
case of abuse this Part or Part 11; and if authorized SHOULD NOT BE MADE
by the employer to work by this Part or Part 11, to not RESPONSIBLE (RISK DEPORTATION
enter into an employment BY THE BORDER AGENCY) FOR THE
agreement, or extend the term of an ABUSIVE BEHAVIOR OF HIS/HER
employment agreement, with an EMPLOYER – EMPLOYERS MUST
employer whose name appears on STAY TOTALLY RESPONSIBLE FOR
the list HIRING ILLEGALLY A FOREIGN
(c) to not study, unless authorized by WORKER OR ABUSING OTHERWISE
this Part or Part 12. A FOREIGN WORKER PROGRAM.
13
See the changes as announced by the conservative administration: http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html
14
See the current text of the Regulations of the Immigration and Refugee Protection Act: http://laws.justice.gc.ca/eng/SOR-2002-
227/index.html
10
MONITORING OF EMPLOYERS 1/4
15
16
227/index.html
11
#2.1 IRPA- WORK PERMIT – applications made before THE OBLIGATION TO PROPOSED CHANGE TO art. 200(1) MUST BE AMENDED SO THAT
REG entering Canada RESIDE WITH THE THE OBLIGATION TO RESIDE WITHIN THE HOUSEHOLD OF THE
The portion art. EMPLOYER HAS BEEN EMPLOYER IS REPLACED BY AN ACKNOWLEGDMENT OF ALL
of 200(1) 200. (1) Subject to subsections (2) and (3) and EVALUATED MIGRANT WORKERS RIGHT NOT TO RESIDE WITH (OR ON THE
subsection section 87.3 of the Act17, an officer shall issue a EXCESSIVELY PREMISE DETERMINED BY) HER EMPLOYER :
200(1) of the work permit to a foreign national who makes an RESTRICTIVE ON THE
Regulations application for the permit before entering Canada POSSIBILITY TO WORK PERMIT – applications made before entering Canada
before if, following an examination, it is established that EXERCIZE HUMAN 200. (1) Subject to subsections (2) and (3), an officer shall issue a work
paragraph (a) the foreign national applied for it in accordance RIGHTS IN CANADA permit to a foreign national if,
(a) is with Division 2; BY THE HUMAN following an examination, it is established that Subject to subsections
modified; (b) the foreign national will leave Canada by the RIGHTS COMMISSION (2) and (3) and section 87.3 of the Act, an officer shall issue a work
end of the period authorized for their stay under OF QUEBEC (JAN permit to a foreign national who makes an application for the permit
Division 2 2009)19, BY THE before entering Canada if, following an examination, it is established
of Part 9; HOUSE OF COMMONS that
#2.2 OF CANADA (MAY (a) the foreign national applied for it in accordance with Division 2;
(c) the foreign national 2009)20, AND BY THE (b) the foreign national will leave Canada by the end of the period
Paragraph (i) is described in section 206, 207 or 208, GENERAL AUDITOR authorized for their stay under Division 2
200(1)(c) of (ii) intends to perform work described in section SHEILA FRAISER of Part 9;
the 204 or 205, or has been offered employment to (NOV. 3 2009)21 (c) the foreign national
Regulations perform that work and an officer has determined (i) is described in section 206, 207 or 208,
is amended under subsection (5) that the offer is genuine, or (ii) intends to perform work described in section 204 or 205, or has
by striking been offered employment to perform that work and an officer has
out “or” at (iii) has been offered employment and an officer determined under subsection (5) that the offer is genuine, or
the end of has determined under section 203 that the offer is (iii) has been offered employment and an officer has determined under
subparagrap genuine and that the employment is likely to section 203 that the offer is
h (ii) and result in a neutral or positive effect on the labour genuine and that the employment is likely to result in a neutral or
subparagrap market in positive effect on the labour market in
h (iii) is Canada; and Canada; and
replaced: (iii) has been offered employment and an officer has determined under
(iii) has been offered employment and an officer section 203 that
17
NEW MENTION OF 87.3 CLARIFY THAT AN OFFICER CAN LET AN (IM)MIGRANT WORKER CHOSEN BY A PROVINCIAL GOVERNMENT ENTER CANADA, WHATEVER HIS
FINANCIAL SITUATION
19
See memo submitted by the Qc Human Rights Commission to the House of Commons’ Standing Committee on Immigration and Citizenship
during the consultation in Quebec city (Jan 2008)
20
See recommendation #34 of the House of Commons’s SCCI: http://www2.parl.gc.ca/HousePublications/Publication.aspx?
DocId=3866154&Language=E&Mode=1&Parl=40&Ses=2
21
See comments provided by the General Auditor: http://www.oag-bvg.gc.ca/internet/English/parl_oag_200911_02_e_33203.html
12
has determined under section 203 that (A) the offer is genuine,
(A) the offer is genuine, (B) the employment is likely to result in a neutral or positive
#2.3 (B) the employment is likely to result in a effect on the labour market in Canada,
neutral or positive effect on the labour (C) the issuance of a work permit would not be inconsistent with
Section market in Canada, the terms of any applicable federal-provincial agreement, and
200 of the (C) the issuance of a work permit would (D) in the case of a foreign national who seeks to enter Canada
Regulation not be inconsistent with the terms of any as a live-in caregiver,
s is applicable federal-provincial agreement, (I) the foreign national will reside in a private household in
amended and Canada and provide child care, senior home support care or
by adding (D) in the case of a foreign national who care of a disabled person in the household without
a seeks to enter Canada as a live-in supervision, with a work contract specifying a maximum
subsection caregiver, number of evenings, nights and/or weekends shifts for every
(1.1) after (I) the foreign national will reside in a month of work and applicable overtime rate;
the private household in Canada and (II) the employer will provide adequate furnished and private
subsection provide child care, senior home support accommodations in the household, and
(1) care or care of a disabled person in the (III) the employer has sufficient financial resources to pay the
household without supervision, foreign national the wages offered the foreign national; and
(II) the employer will provide adequate (IV) the work contract mentions explicitely the fundamental
furnished and private accommodations right of all workers in Canada to reside or sleep outside of the
in the household, and employer’s residence
(III) the employer has sufficient financial (d) [Repealed, SOR/2004-167, s. 56]
resources to pay the foreign national the (e) the requirements of section 30 are met.
wages offered the foreign national; and
(d) [Repealed, SOR/2004-167, s. 56] Work Permits – applications made on or after entering Canada
(e) the requirements of section 3018 are met. (1.1) Subject to subsections (2) and (3), an officer shall issue a work
permit to a foreign national who makes an application for the permit in
Work Permits – applications made on or after accordance with section 198 or 199 on or after entering Canada if,
entering Canada following an examination, it is established that the requirements set out
(1.1) Subject to subsections (2) and (3), an in paragraphs (1)(a) to (e) are met.
officer shall issue a work permit to a foreign
national who makes an application for the permit
in accordance with section 198 or 199 on or after
entering Canada if, following an examination, it is
established that the requirements set out in
paragraphs (1)(a) to (e) are met.
18
Section 30 refers to the medical check before entry
13
USE OF TEMPORARY WORKER PROGRAMS FOR PERMANENT LABOUR SHORTAGE
#2.4 IRPA- (f) in the case of a foreign national referred to in NO INTERDICTION OF THE ADDITION OF SUBSECTION (G) FOR ART. 200(3) MUST BE
REGS subparagraphs (1)(c)(i) to (ii.1), the issuance of a ENTRY MUST BE MADE BLOCKED
art. work permit would be inconsistent with the terms ON THE RATIONALE OF
MAKING 200 of any applicable federal-provincial agreement; or HAVING “TOO MUCH (f) in the case of a foreign national referred to in subparagraphs
FOREIGN (g) the foreign national has worked in Canada for WORK EXPERIENCE IN (1)(c)(i) to (ii.1), the issuance of a work permit would be
WORKERS one or more periods totalling four years, unless CANADA” – THESE inconsistent with the terms of any applicable federal-provincial
RESPONSI (i) a period of six years has elapsed since the WILL BE THE MOST agreement; or
BLE AND day on which the foreign national accumulated EXPERIENCED FOREIGN (g) the foreign national has worked in Canada for one or more
BARRED four years of work in Canada, WORKERS! ON THE periods totalling four years, unless
FROM (ii) the foreign national intends to perform work CONTRARY, (i) a period of six years has elapsed since the day on which the
CANADA IF that would create or maintain significant social, EMPLOYERS COULD foreign national accumulated four years of work in Canada,
EMPLOYER cultural or economic benefits or opportunities EVENTUALLY BE (ii) the foreign national intends to perform work that would
ABUSES for Canadian citizens or permanent residents, or DENIED FOR 6 YEARS create or maintain significant social, cultural or economic
FEDERAL (iii) the foreign national intends to perform work ACCESS TO A benefits or opportunities for Canadian citizens or permanent
PROGRAM pursuant to an international agreement between TEMPORARY FOREIGN residents, or
S Canada and one or more countries, including an WORKER PROGRAM (iii) the foreign national intends to perform work pursuant to an
agreement concerning seasonal agricultural AFTER 4 YEARS OF USE international agreement between Canada and one or more
workers. IN ORDER TO countries, including an agreement concerning seasonal
Cumulative work periods — students ENCOURAGE THEM TO agricultural workers.
(4) A period of work in Canada by a foreign INVEST IN Cumulative work periods — students
national shall not be included in the calculation of the TECHNOLOGY AND (4) A period of work in Canada by a foreign national shall not be
four-year period referred to in paragraph (3)(g) if the IMPROVE WORK included in the calculation of the four-year period referred to in
work was performed during a period in which the CONDITIONS IN ORDER paragraph (3)(g) if the work was performed during a period in which
foreign national was authorized to study on a full- TO ATTRACT, FORM the foreign national was authorized to study on a full-time basis in
time basis in Canada. AND MAINTAIN A Canada.
NATIVE AND
IMMIGRANT CANADIAN
WORKFORCE
22
23
227/index.html
14
#2.5 IRPA- Genuineness of job offer WHEN ABUSIVE NAMES OF ABUSIVE EMPLOYERS+UNREGISTERED AGENCIES MUST STAY ON
REG (5) A determination of whether an offer of EMPLOYERS GET PUBLIC LISTS
Section art. employment is genuine shall be based on the AUTHORIZED AGAIN
200 of 200 following factors: TO HIRE FOREIGN +
the (a) whether the offer is made by an WORKERS TWO
Regulatio employer that is actively engaged in the YEARS AFTER THE CRIMINAL ABUSES CASES MUST ALL BE TRANSFERRED BY HRSDC TO RCMP
n is business in respect of which the offer is REPORT OF ABUSE, OFFICERS
amended made; THEIR NAME MUST
by (b) whether the offer is consistent with the STAY ON THE Genuineness of job offer
adding reasonable employment needs of the BLACK LIST SO (54) A determination of whether an offer of employment is genuine shall be
subsectio employer; THAT HRSDC, THE based on the following factors:
ns (4) (c) whether the terms of the offer are terms MEDIA, UNIONS (a) whether the offer is made by an employer that is actively engaged in the
and (5) that the employer is reasonably able to AND HUMAN business in respect of which the offer is made;
after the fulfil; RIGHTS NGO WILL (b) whether the offer is consistent with the reasonable employment needs of
subsectio and (d) the past compliance of the MAINTAIN A the employer;
n (3) ; employer, or any person who recruited the PARTICULAR (c) whether the terms of the offer are terms that the employer is reasonably
foreign national for the employer, with the MONITORING OF able to fulfil; and
#3 federal or provincial laws that regulate THE RESPECT OF (d) the past compliance of the employer, or any person who recruited the
employment, or the recruiting of HUMAN AND foreign national for the employer, with the federal or provincial laws that
The employees, in the province in which it is LABOUR RIGHTS OF regulate employment, or the recruiting of employees, in the province in which
Regulatio intended that the foreign national work. THE TEMPORARY it is intended that the foreign national work, including with the voluntary
ns are FOREIGN WORKERS registering and monitoring mentionned in subsections 200.1 (3) and (4).
amended Offers deemed to be not genuine EMPLOYED BY THAT
by 200.1 (1) Despite subsection 200(5), the EMPLOYER (5) A multilingual public mecanism, managed and centralized by HRSDC,
adding a following offers of employment are deemed to + allows for possibly anonymous complain by foreign workers, community
section be not genuine: HRSDC OFFICERS groups, human rights NGOs and labour unions where elements of proof
200.1 (a) an offer of employment made by an MUST ALSO BE against abusive employers and recruitment/immigration/placement
after employer who, in the two-year period GIVEN THE agencies/consultants .
section preceding the day on which the offer of RESPONSIBILITY OF
200 employment was received by the MONITORING Offers deemed to be not genuine
Department or the Department of Human RECRUTEMENT 200.1 (1) Despite subsection 200(5), the following offers of employment are
24
25
227/index.html
15
Resources and Skills Development, /IMMIGRATION/ deemed to be not genuine:
(i) provided to a foreign national wages PLACEMENT (a) an offer of employment made by an employer who, in the two-year period
or working conditions that were AGENCIES/CONSULT preceding the day on which the offer of employment was received by the
significantly different from the wages or ANTS Department or the Department of Human Resources and Skills Development,
working conditions that were offered by (i) provided to a foreign national wages or working conditions that were
the employer to the foreign national, or significantly different from the wages or working conditions that were
(ii) employed a foreign national in a offered by the employer to the foreign national, or
significantly different occupation than (ii) employed a foreign national in a significantly different occupation than
the occupation described in the the occupation described in the employer’s offer to the foreign national;
employer’s offer to the foreign national; and
and (b) an offer of employment received by the Department or the Department of
(b) an offer of employment received by the Human Resources and Skills Development within two years from the day on
Department or the Department of Human which the employer who made the offer was informed by an officer that an
Resources and Skills Development within two offer of employment made by the employer was deemed to be not genuine
years from the day on which the employer under paragraph (a).
who made the offer was informed by an
officer that an offer of employment made by Notice
the employer was deemed to be not genuine (2) A list shall be maintained on the Department’s website that sets out (a) the
under paragraph (a). names and addresses of all employers who have made offers of employment
Notice that have once been deemed, within the preceding two-year period, to be not
genuine under paragraph (1)(a); and (b) the date on which each employer was
(2) A list shall be maintained on the informed that their offer was deemed not to be genuine.
Department’s website that sets out (a) the
names and addresses of employers who have (3) A list shall be maintained on the Department’s website that sets out (a) the
made offers of employment that have been names and addresses of all recruitement/placement/immigration
deemed, within the preceding two-year agencies/consultants registered, voluntarilyy monitored by HRSDC field officers
period, to be not genuine under paragraph (1) and thus authorized by CIC for dealing with foreign workers,
(a); and (b) the date on which each employer
was informed that their offer was deemed not (4) A list shall be maintained on the Department’s website that sets out (a) the
to be genuine. names and addresses of all recruitement/placement/immigration
agencies/consultants not registered and not monitored by HRSDC field officers
and thus not authorized by CIC to deal with foreign workers. All unregistered
agencies and consultants will be been deemed to have provided abusive
services to foreign nationals; and (b) the date on which each agency/consultant
was informed that their services was deemed not to be genuine thus authorized.
(5) All cases of criminal harassment, intimidation, fraud or other criminal

behavior by an employer and/or a recruitment/immigration/placement
agency/consultant towards a foreign worker must be transfered by HRSDC
officers to RCMP officers.
16
17
#4 IRPA- Renewal No comment Ok
Subsectio REG
n 201(2) art. (2) An officer shall renew the foreign national’s
of the 201(2) work permit if, following an examination, it is
Regulatio established that the foreign national continues to
ns is meet the requirements of paragraphs 200(1)(a) to (e).
modified
to specify
that the
introducti
on before
(a) in
200(1) is
irrelevant
26
27
227/index.html
18
CHANGES PROPOSED TO THE IRPA REGULATIONS BY THE COMMENTS RECOMMENDATIONS TO OPPOSITION PARTIES
#5.1 203(1) Effect on the labour market See above p. 10-11 Effect on the labour market
Subsecti 203. (1) On application under Division comments on the 203. (1) On application under Division 2 for a work permit
on 203(1) 2 for a work permit made by a foreign na- obligation to reside made by a foreign national other than a foreign national
of the tional other than a foreign national referred with the employer referred to in subparagraphs 200(1)(c)(i) and (ii) (ii.1), an
Regulatio to in subparagraphs 200(1)(c)(i) and (ii) (ii.1), an officer shall determine, on the basis of an opinion provided by
ns is + both employers
officer shall determine, on the basis of an the Department of Hu-
replaced and foreign workers
opinion provided by the Department of Hu- must be aware that man Resources and Skills Development, if the job of-
man Resources and Skills Development, if the job intimidation to an fer is genuine and if the employment of the
of- employee is criminal foreign national is likely to have a neutral
fer is genuine and if the employment of the in Canada – the best or positive effect on the labour market in
foreign national is likely to have a neutral way to achieve this Canada.
or positive effect on the labour market in would be to ask for (a) the job offer is genuine;
Canada. direct reference on (b) the employment of the foreign national is likely to have a
(a) the job offer is genuine; the work contract to neutral or positive effect on the labour market in Canada;
(b) the employment of the foreign national is likely the most relevant (c) the issuance of a work permit would not be inconsistent with
to have a neutral or positive effect on the labour articles of the the terms of any applicable federal-provincial agreement; and
market in Canada; criminal code (d) in the case of a foreign national who seeks to enter Canada as
(c) the issuance of a work permit would not be a live-in caregiver,
inconsistent with the terms of any applicable (I) the foreign national will reside in a private household in
federal-provincial agreement; and Canada and provide child care, senior home support care
(d) in the case of a foreign national who seeks to or care of a disabled person in the household without
enter Canada as a live-in caregiver, supervision, , with a work contract specifying a maximum
(i) the foreign national will reside in a private number of evenings, nights and/or weekends shifts for
household in Canada and provide child care, every month of work and applicable overtime rate;
senior home support care or care of a disabled (II) the employer will provide adequate furnished and
person in that household without supervision, private accommodations in the household, and
(ii) the employer will provide adequate furnished (III) the employer has sufficient financial resources to pay
and private accommodations in the household, the foreign national the wages offered the foreign national;
and and
(iii) the employer has sufficient financial resources to (IV) the work contract mentions explicitely the
pay the foreign national the wages offered the foreign fundamental right of all workers in Canada to reside or
national. sleep outside of the employer’s residence
(e) the work contract associated with the job offer refer explicitely,
in the mother tongue of the foreign worker to the worker’s rights
under provincial labour standards and to art. 217.1, 219, 264, 264.1
19
and 423 of the criminal code of Canada***.
** see details of these articles next page
20
ARTICLES OF THE CRIMINAL CODE HIGHLY RELEVANT FOR THE EMPLOYER -TEMPORARY FOREIGN WORKER RELATIONSHIP:
Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable
steps to prevent bodily harm to that person, or any other person, arising from that work or task.
Criminal negligence
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Criminal harassment
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed,
engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of
anyone known to them.
Uttering threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
Intimidation
423. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable
on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he
or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,
(a) uses violence or threats of violence to that person or his or her spouse or common-law partner or children, or injures his or her property;
(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be
done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;
(c) persistently follows that person;
(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;
(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;
(f) besets or watches the place where that person resides, works, carries on business or happens to be; or
(g) blocks or obstructs a highway.
21
# 5.2 IRPA- Factors re genuineness No comment This amendment is good and must be passed
REG
Section art. (2.1) An opinion provided by the Department of
203 of the 203(2) Human Resources and Skills Development in respect
Regulation of the genuineness of a job offer shall be based on
s is the factors set out in subsection 200(5).
amended
by adding Additional information
a
subsection (2.2) The Department of Human Resources and
(2.1) after Skills Development shall indicate in its opinion
subsection whether the employer, in the two-year period
(2) preceding the offer, has provided to a foreign
national wages or working conditions that were
significantly different from the wages or working
conditions that were offered by the employer to the
foreign national or employed a foreign national in a
significantly different occupation than the occupation
described in the employer’s offer to the foreign
national.
28
See the changes as announced by the conservation administration: http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html
29
227/index.html
22
# 5.3 IRPA- Factors re effect on labour market No comment Ok to support this amendment
REG
The portion art. (3) An opinion provided by the Department of
of subsection 203 Human Resources and Skills Development in
203(3) of the (3) respect of the effect of the employment of the
Regulations foreign national on the labour market shall be
before based on the following factors:
paragraph (a)
is modified
with additional
words
# 5.4 IRPA- Period of validity of opinion No comment Ok to support this amendment
Section 203 REG
of the art. (3.1) An opinion provided by the Department
Regulations is 203( of Human Resources and Skills Development
amended by 3) shall indicate the period during which the
adding a opinion is in effect for the purposes of
subsection subsection (1).
(3.1) after
subsection (3)
30
31
227/index.html
23
#6 No comment Ok to support this amendment
The Regulations are amended by replacing “Department of
Human Resources Development” with “Department of Human
Resources and Skills Development” in the following provisions:
(a) the definition “National Occupational Classification” in

section 2;
(b) the definition “restricted occupation” in section 73;
(c) subparagraph 82(2)(c)(ii);
(d) subparagraph 198(2)(a)(i);
(e) subsection 203(2);
(f) subsection 203(4); and
(g) paragraph 314(2)(b).
#7 No comment Ok to support this amendment if and only if all anti-foreign
workers amendment and wording have been removed from
These Regulations come into force on the day on which they are the proposed changes
registered.
24

TFW IRPA-REG Recommendations

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TFW IRPA-REG Recommendations

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PREVENTION OF ABUSES OF TEMPORARY FOREIGN WORKERS IN CANADA:

(1) Possibility for all IRPA- Specific conditions

(2) Possibility for all IRPA-

agencies/agents (c) (3), an officer shall issue a work permit to

(5) Possibility for all IRPA- ISSUANCE OF WORK PERMITS

(6) Possibility for all IRPA- INVALIDITY AND FUNCTION AS VISA

(5) All cases of criminal harassment, intimidation, fraud or other criminal

Duty of persons directing work

(a) the definition “National Occupational Classification” in

(b) the definition “restricted occupation” in section 73;

(c) subparagraph 82(2)(c)(ii);

(d) subparagraph 198(2)(a)(i);

(e) subsection 203(2);

(f) subsection 203(4); and

(g) paragraph 314(2)(b).

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