More temporary foreign worker protections on the way in B.C.

Statistics Canada has estimated that there were 101,945 unfilled positions in B.C. during 2019’s first quarter, up 10% from the same quarter in 2018.

As in the rest of Canada, employers in British Columbia have been turning increasingly to temporary foreign workers (TFWs) to address pressing labour shortages. In 2017, the federal government issued approximately 47,620 work permits for foreign nationals destined for B.C., of which 16,865 were issued under the Temporary Foreign Worker Program.

The first portions of the Temporary Foreign Worker Protection Act became law in July 2019. New provisions of the act came into force on October 1, 2019, which fundamentally changed the relationship among TWFs, recruiters and employers. The remaining parts of the act are expected to become law later this year. All affected parties need to be aware of the phased implementation of the act, to avoid potentially serious penalties.

Changes that came into force on October 1

Recruiters of TFWs who do business in B.C. must obtain a licence under the act, even if their business is predominantly located outside of the province. Each individual recruiter must obtain a licence.

There is no fee for the licence, but recruiters are required to submit a $20,000 bond to secure it. Failure to obtain a licence by October 1 may result in a fine of up to $50,000 for an individual, one year in prison, or both.

A registry of TFW recruiters is administered by the Employment Standards Branch. The registry is publicly available, including online.

Recruiters may charge employers for recruiting TFWs but are required to disclose to TFWs that they are levying a fee.

The act is not clear on whether the amount of the fee must be disclosed or when the disclosure must be made.

Recruiters who are double ending (providing recruitment services to an employer while at the same time providing immigration services to a TFW) are now required to enter into an agreement by which all parties consent to the joint representation and are made aware of the extent of the services being provided by the recruiter to the other party. The agreement must be in writing.

Recruiters must provide general information to every TFW about his or her rights, in a form prescribed by the director of the Employment Standards Branch.

Finally, the act allows anyone to make a complaint about a contravention of the act.

The complainant need not be a TFW or even an employee of the employer. The director has real mechanisms to collect on penalties and other amounts issued for contraventions of the act, including garnishment-like powers and asset seizure.

The act creates personal liability for directors and officers of both recruiters and employers.

Changes coming later in 2019

Unlike recruiters, employers who employ TFWs are not yet required to be licensed under the act, but that is expected to change later in 2019.

Employers should familiarize themselves with the act’s licensing requirements and begin preparing for those changes now.

Once the remainder of the act comes into force, it will be an offence for an employer to recruit a foreign national for employment, either directly or indirectly, unless the employer holds a certificate of registration.

The act will soon make it an offence for anyone (including both recruiters and employers) to charge a fee to TFWs for any recruitment service, either directly or indirectly.

Any term of a contract that purports to charge such a fee will be void.

The act will also make it an offence for employers or recruiters to provide false or misleading information about immigration, recruitment or terms of employment; to take possession of a TFW’s passport; to threaten deportation; or to retaliate for reporting noncompliance with the act.

The act in its final form will also have a long temporal reach – both recruiters and employers will be required to retain a wide range of records for at least four years after the date they are created.

The regulation of TFW recruiting and employment fits within the BC NDP government’s declared mandate to offer increased protection to workers thought to be most vulnerable.

In the eyes of the provincial government, that includes TFWs.

As B.C. Minister of Labour Harry Bains has said, “workers coming to a new country must be confident that their rights are protected and that abusive recruiters will be held accountable.... Licensing will help regulate the recruiting industry in B.C. and will ensure a level playing field for those recruiters who treat workers fairly.” •

Mike Hamata (mhamata@ropergreyell.com) is a partner at Roper Greyell and practises employment and labour law, including disputes with unions, workplace safety, human rights and employment litigation. The article is for general information purposes only and does not constitute legal advice.