THE TEMPORARY FOREIGN WORKER PROGRAM FOR AGRICULTURE
(Current as of January 2015)
The Temporary Foreign Worker Program
The Temporary Foreign Worker Program (TFWP) is a federally-administered labour recruitment program that allows Canadian employers to hire foreign nationals to fill temporary labour and skill shortages when qualified Canadian citizens or permanent residents are not available. On June 20, 2014, the TFWP underwent significant changes which fall into four broad categories. Notable reforms include:
1. Restricted access;
§ Capping the proportion of an employer’s low-wage temporary foreign worker (TFW) workforce to 10 per cent (phased in over three years for employers with existing low-wage TFWs; 30 per cent cap effective June 2014, 20 per cent in June 2015 and 10 per cent by June 2016); and
§ Increasing administrative requirements for employers using the program (i.e., introducing a more rigorous hiring process and reducing the length of permits for low-wage TFWs to one year from two years).
2. Increased fees;
§ Increasing the Labour Market Impact Assessment[1] (LMIA) fee to $1,000 from $275.
3. Improved labour market information (i.e. job matching service, job vacancy survey, wage survey and better use of existing government data); and
4. Increased penalties and stronger enforcement.
§ Introducing larger penalties (up to $100,000) and provisions for stronger enforcement.
The most current information on the TFWP and a detailed description of the June 2014 reforms can be found at http://www.esdc.gc.ca/eng/jobs/foreign_workers//index.shtml. Those interested in or utilizing the TFWP should consult federal government websites for the most accurate and current information.
Agricultural Employers
Given the diversity of the agriculture industry, there are four “streams” agricultural employers can utilize to hire TFWs:
1. Seasonal Agricultural Worker Program (SAWP);
2. Agricultural Stream;
3. Stream for Lower-Skilled Occupations; or
4. Stream for Higher-Skilled Occupations
Each Stream has specific requirements and limitations.
Appendix A provides an overview of the typical process to hire a TFW through the TFWP[2].
Appendix B displays a detailed overview of the specifics requirements for each stream.
Appendix C discusses advantages, drawbacks and potential users of each stream.
On-Farm Primary Agriculture
On-Farm Primary Agriculture is defined as: work that is performed within the boundaries of a farm, nursery or greenhouse and involves:
· The operation of agricultural machinery;
· The boarding, care, breeding, sanitation or other handling of animals, other than fish, for the purpose of obtaining animal products for market, or activities relating to the collection, handling and assessment of those products; or
· The planting, care, harvesting or preparation of crops, trees, sod or other plants for market; or
· The provision of feed lot services.
Work in the primary agriculture sector does not include work involving:
· The activities of agronomists or agricultural economists;
· Landscape architecture;
· The preparation of vegetable fibres for textile use;
· Activities related to commercial hunting and trapping; or
· Veterinary activities.
Since the federal government has recognized acute labour shortages and the temporary nature of jobs in the agricultural sector, On-Farm Primary Agriculture, including the SAWP, is exempt from the following provisions:
· LMIA fee;
· Cap on low-wage TFWs;
· 1-year LMIA duration; and
· Reduced period a low-wage TFW is allowed to remain in Canada (exempted for SAWP only).
Employers are still subject to stronger enforcement and increased penalties, which are intended to ensure TFWs are treated fairly and their rights are upheld.
High/Low Wage
The provincial/territorial median wage, which is currently $21.63 in Saskatchewan, is used to determine whether a TFW is classified as low-wage or high-wage. This distinction is important because different rules apply to low- and high-wage TFWs. For instance,
· Low-wage TFWs:o Are subject to the 10 per cent cap in low-wage TFW workforce; and
o Have a maximum work permit length of one year. / · High-wage TFWs:
o Require a transition plan to permanent residency with LMIA application; and
o Have a maximum work permit length of two years (evaluated on a case-by-case basis).
Administering the TFWP by wage means that instead of using the actual wage an employer pays a TFW, TFWs are classified as either low-wage or high-wage based on the median wage for their occupation relative to the provincial median wage. If the occupation has a median wage below the provincial median wage, the TFW is considered low-wage. If the occupation has a median wage above the provincial median wage, the TFW is considered high-wage. Occupations are categorized via the 2006 National Occupation Classification[3] (NOC) system and the defined wage for certain occupations are determined via Statistics Canada’s Labour Force Survey. Job descriptions and associated median wages for different regions in Canada are listed at http://www.jobbank.gc.ca/wage-outlook_search-eng.do.
Cumulative Duration
Both high- and low-wage TFWs can work a maximum of four cumulative years in Canada, provided for by the Cumulative Duration Regulation[4]. However, the SAWP is exempt from the regulation due to it being an international agreement.
High/Low Skill
Although wage is the key indicator used to administer the TFWP, TFWs are also distinguished by high-skilled occupations and low-skilled occupations via the NOC system. Typically high-skilled occupations require post-secondary education and professional experience (NOC 0, A and B), whereas lower-skilled occupations require lower levels of education and experience
(NOC C and D). Correspondingly, skill levels qualify individuals to be hired through certain TFWP streams (see below). An overview of different skill levels and occupation types identified in the 2006 NOC system is as follows:
Skill Level / Description / Skill Level O: Management Occupations0 / Management Occupations / 1. Business, Finance and Administration Occupations,
2. Natural and Applied Sciences and Related Occupations,
3. Health Occupations,
4. Occupations in Social Science, Education, Government Service and Religion,
5. Occupations in Art, Culture, Recreation and Sport,
6. Sales and Service Occupations,
7. Trades, Transport and Equipment Operators and Related Occupations,
8. *Occupations Unique to Primary Industry,
9. Occupations Unique to Processing, Manufacturing and Utilities.
A / Occupations usually require university education
B / Occupations usually require college education or apprenticeship training
C / Occupations usually require secondary school and/or occupation-specific training
D / On-the-job training is usually provided for occupations
* Skill Types 8 and 9 primarily relate to agricultural occupations
Valid NOC codes for On-Farm Primary Agriculture occupations are below. TFWs hired to fill these occupations qualify for:
NOC 2006 / Occupational Title8251 / Farmers and Farm Managers
8252 / Agricultural and Related Service Contractors and Managers
8253 / Farm Supervisors and Specialized Livestock Workers
8254 / Nursery and Greenhouse Operators and Managers
8256 / Supervisors, Landscape and Horticulture
8431 / General Farm Workers
8432 / Nursery and Greenhouse Workers
8611 / Harvesting Labourers
Given the diversity of the agricultural industry, employers need workers with different skill levels to meet their labour requirements. Within the context of the TFWP, employers hiring low-skilled worker(s) can do so through the following streams:
· Seasonal Agricultural Worker Program (SAWP);
· Agricultural Stream; or
· Stream for Lower-Skilled Occupations.
Employers hiring high-skilled worker(s) can do so through the following streams:
· Seasonal Agricultural Worker Program (SAWP);
· Agricultural Stream; or
· Stream for Higher-Skilled Occupations.
APPENDIX A: Overview of Process to Hire a TFW
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***Completion time subject to intake volume
1
APPENDIX B: TFWP Streams for Hiring Agricultural Workers(see http://www.esdc.gc.ca/eng/jobs/foreign_workers/agriculture/index.shtml for most-current requirements)
Stream / Seasonal Agricultural Worker Program (SAWP) / Agricultural Stream / Stream for Lower-skilled Occupations / Stream for Higher-skilled Occupations
Lower-skilled Positions / Higher-skilled Positions
Major Criteria / Source Country / · TFWs must be from Mexico or Certain Caribbean countries (Anguilla, Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago) / · TFWs can be from any country / · TFWs can be from any country / · TFWs can be from any country
Allowed Duration / · Maximum 8 months between Jan 1 and Dec 15, provided a minimum of 240 hrs within a period of 6 weeks or less is offered
· Note: SAWP is exempt from the cumulative duration rule / · Maximum 24 months
· Subject to four year cumulative duration regulation / · Maximum 1 year work permit (if low wage)
· Subject to four year cumulative duration regulation / · Maximum 2 year work permit (if high wage)
· Subject to four year cumulative duration regulation
Accepted Commodities / · Production must be in specific commodity sectors** (National Commodity List (NCL))
· Note: Grain and oilseed production is not on NCL / · Production must be in specific commodity sectors** (National Commodity List (NCL))
· Note: Grain and oilseed production is not on NCL / · Production is NOT included on the National Commodities List
· Employers can hire TFWs for any lower-skilled agricultural position (NOC C or D) / · Employers can hire TFWs for any higher-skilled agricultural occupation (NOC 0,A or B)
Type of Agriculture / · Activities must be related to On-Farm Primary Agriculture / · Activities must be related to On-Farm Primary Agriculture / N/A / N/A
Skill Level / · Positions can be lower- or higher-skilled occupations / · Positions can be lower- or higher-skilled occupations / · Lower-skilled agricultural positions
· Occupations are coded at the NOC C or D skill level
· Education or formal training required for the occupation includes at most a:
o high school diploma; or
o max of 2 years of job-specific training / · Higher-skilled agricultural positions
· High-skilled occupations are defined as:
o NOC 0 (management occupations)
o NOC A
o NOC B
· Education or formal training required for the occupation includes:
o university education;
o college education;
o vocational education; or
o apprenticeship training
Stream / Seasonal Agricultural Worker Program (SAWP) / Agricultural Stream / Stream for Lower-skilled Occupations / Stream for Higher-skilled Occupations
Lower-skilled Positions / Higher-skilled Positions
Other Criteria
↓ / Transportation / · Employer must pay for the round-trip transportation costs to the location of work in Canada, and back to the TFW's country of permanent residence
· Note: Costs can be partially recouped from the TFW's salary (except in BC); parameters are outlined in the employment contract / · Employer must pay for the round-trip transportation costs to the location of work in Canada, and back to the TFW's country of permanent residence
· Employers must provide TFWs, where required, with no-cost transportation to and from the off-site housing location to the work location
· Note: Costs cannot be recouped directly or indirectly from the TFW's salary / · Employer must pay for the round-trip transportation costs to the location of work in Canada, and back to the TFW's country of permanent residence
· Note: Costs cannot be recouped directly or indirectly from the TFW's salary / N/A
Housing / · Employer must provide on-farm or off-site housing.
· Note: Costs cannot be recouped directly or indirectly from the TFW's salary (except in BC) / · Employer must provide on-farm or off-site housing
· Note: Employer can deduct a maximum of $30/week from the TFW's salary unless applicable provincial/ territorial labour standards specify a lower amount / · Employer must help the TFWs find affordable and suitable housing / N/A
· Employer supplying off-site housing must meet the same requirements as for on-farm housing / · Employer supplying off-site housing must ensure the rent does not cost more than 30% of the TFW's gross monthly earnings. If the employer is the lease-holder or owns the dwelling, the cost charged cannot be more than the TFW's share of the market rate
Stream / Seasonal Agricultural Worker Program (SAWP) / Agricultural Stream / Stream for Lower-skilled Occupations / Stream for Higher-skilled Occupations
Lower-skilled Positions / Higher-skilled Positions
Housing Inspection / Employer must provide:
· a copy of the current year's provincial, municipal or private inspection report; or a copy of the inspection report from the previous year, with an expected inspection date for the current year / Employer must provide:
· a copy of the current year's provincial, municipal or private inspection report; or a copy of the inspection report from the previous year, with an expected inspection date for the current year / N/A / N/A
Health Insurance / · Employer must pay for private health insurance from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/ territorial health insurance plan. The private insurance coverage must be equivalent to the provincial/ territorial health insurance plan
· Note: Costs cannot be recouped directly or indirectly from the TFW's salary / · Employer must pay for private health insurance from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/ territorial health insurance plan. The private insurance coverage must be equivalent to the provincial/ territorial health insurance plan
· Note: Costs cannot be recouped directly or indirectly from the TFW's salary / · Employer must pay for private health insurance from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/ territorial health insurance plan. The private insurance coverage must be equivalent to the provincial/ territorial health insurance plan
· Note: Costs cannot be recouped directly or indirectly from the TFW's salary / N/A
Workplace Safety Insurance / Employers must arrange and pay for:
· workplace safety insurance coverage from provincial/ territorial workplace safety insurance providers (e.g. Workers' Compensation Board), or a similar coverage through a private insurance provider if the province/ territory does not provide insurance coverage for agricultural workers
Insurance plan must:
· be equivalent to that offered for Canadian and permanent resident employees