Recruitment of foreigners

Canadian employers must demonstrate benefit

By Guidy Mamann: It is not surprising for countries facing tough economic times to implement measures intended to better protect their domestic workers.

In Canada, this responsibility falls on the shoulders of Human Resources and Skills Development Canada (HRSDC).

Subject to certain exceptions, Canadian employers who wish to recruit foreign workers must demonstrate to HRSDC how the entry of the foreign worker(s) will transfer skills and knowledge to Canadians, fill a labour shortage, or directly create or retain job opportunities for other Canadians.

Justification needed

Canadian employers who wish to recruit overseas must first make an application to HRSDC for a Labour Market Opinion (LMO). If HRSDC is satisfied that the recruitment of a foreigner is in our interests, it will issue a positive LMO which then paves the way for the chosen foreign worker to submit a work permit application at a Canadian visa post overseas.

On January 1st, HRSDC implemented a national advertising requirement for all occupations.

The failure to comply with these minimum advertising requirements “will result in the application for a LMO being denied”.

Complexity of job decides

As a general rule of thumb, the more complex the position, the less advertising is needed since those combinations of skills are believed to be harder to find here. The “lower” the position, the more likely it is perceived that we should be able to find someone locally to do the job.

Accordingly, employers who are offering positions in management or in occupations which usually require a university degree (i.e. positions described in our National Occupations Classification as skill levels O and A) must advertise the position on the national job bank (www.jobbank.gc.ca) for at least 14 calendar days. Alternatively, they can conduct similar recruitment activities consistent with the practices prevailing within that occupation. This can include advertising in professional journals, newsletters, national newspapers, or even consulting with unions or professional associations. These efforts must be made during the three months prior to the LMO application.

Priority of Canadian workers

For occupations which usually require college education or apprenticeship training (i.e. NOC B occupations) advertising in the national job bank is mandatory and cannot be substituted with the alternatives listed above. Additionally, the advertisements must include the employers name and address and must disclose the wages being offered. This latter requirement will make this type of recruitment more delicate since existing employees will have access to the wages being offered to their foreign counterparts.

Lastly, employers who are recruiting those in occupations which require only high school education, occupation-specific training, or on-the-job training (i.e. NOC C and D occupations) must advertise on the job bank and must conduct other recruitment activities consistent with the practice in the occupation in question, all within three months of the LMO application They must also demonstrate reasonable “ongoing” recruitment efforts in communities which face barriers to employment i.e. Aboriginals, seniors, and other disadvantaged groups.

HRSDC makes it clear that these requirements are the minimum efforts that can be expended and reserves the right to impose additional requirements.

From a public policy point of view, the recruitment of foreign workers is tricky business at the best of times. In the worst of times, the public insists on greater protection.

Now, it’s been delivered.

Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at .

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