Lexpert Magazine

60 LEXPERT MAGAZINE | OCTOBER 2017 LABOUR MARKET BENEFITS PLAN Employers who seek fast-track approvals to hire foreign experts must be prepared to answer open-ended questions and predict the future — with precise detail. The federal government's new Global Talent Stream process requires employers to file a Labour Market Benefits Plan with each foreign-worker application, detailing how the requested position will enhance Canadian job creation, training and knowledge transfer. Far from checking a box and writing a few sentences about good intentions, lawyers warn, the new LMBP requires employers to say how many Canadians they will be able to hire as a result of bringing in a foreign worker to help expand a business. And there will be a review in about six months to ensure the employer has lived up to commitments. Chantal Arsenault says the LMBP is similar to the transition plan that is required under the Temporary Foreign Workers Program. "It's a little nerve-wracking for employers to have to predict what's going to happen," she says. She adds that a lack of clear guidelines makes it hard to know what the government is expecting. "It's a challenge that we've always had — the manuals with which they [government officials] are working have never been made public. That's why we try to share experience amongst the legal community." Over time, she says, lawyers develop a shared perspective on how to meet government requirements. In addition to hiring plans, lawyers say, the people who process LMBPs want detailed training plans that include: how many people will be trained; what they will learn; when and where training will be delivered; and who the trainees will be. If internships are to be created as a result of foreign-worker hiring, all the same information should be provided. Lawyers say lack of specificity in an LMBP can be the cause of significant delays in approvals that are supposed to be on the fast track. Caroline Phan, in-house counsel with Bombardier Inc., says Ottawa should definitely provide additional guidance on how Labour Market Benefits Plans should be written. And she advises those filing applications under the new program to be meticulous in documenting every aspect of domestic hiring, training and knowledge transfer attributed to each foreign-worker position. Jennifer McRae, with Thompson Dorfman Sweatman in Winnipeg, says the Labour Market Benefits Plan is new and employers are unsure how to approach it. "Nobody's sure how they [federal administrators] are going to use all the information and how you're going to be reviewed on it." IN HOUSE INSIGHT sities to bring in foreign workers for up to 120 days per year.) Each application under Categories A and B must be accompanied by a Labour Market Benefits Plan that specifies in detail how the proposed position would create a lasting positive benefit to the Ca- nadian labour market, whether in terms of domestic job creation, training or knowl- edge transfer. As with all hiring under the Temporary Foreign Workers Program, a processing fee of $1,000 must be paid for each position requested, with no refund for rejected applications. Government documentation specifies that employer costs such as processing fees, immigration lawyers' fees and workplace insurance premiums may not be recovered from the temporary foreign workers them- selves, who likely could not afford them. Finally, wages paid to foreign workers must be "similar" to those paid to Canadians do- ing the same job. But standard employee benefits paid to Canadian workers are spe- cifically excluded from the definition of wages that must be matched in any offer to a temporary foreign worker. McRae says that, in the early days of the new program, the Labour Market Benefits Plan is still something of a black box that no one is sure how to handle. All the ex- perts interviewed expressed concern that it's difficult for companies to make con- crete commitments about the impact of every foreign employee on job creation in Canada (see sidebar). Lawyers say they expect the 15- and 30- day applications to get a lot of use. Phan says Bombardier might use them to bring in uniquely qualified employees from for- eign subsidiaries, while McRae says they'll be useful in a variety of situations, such as when Canadian and overseas companies form partnerships and need to move talent around for short periods during start-ups of new ventures. "at oen happens, and we have short time frames. It's complicated and it's very difficult for an employer to navigate," but she says the new program should help. In Québec, Arsenault says, only the 15- and 30-day business visitor option will pro- vide immediate help to employers because of the lack of provincial harmonization on the Labour Market Impact Assessments re- quired under Categories A and B. And she says she's heard nothing about a near-term resolution of that issue. Under the business visitor option, she says, very short-term contract employees "just show up at the airport" and state their business. Provided they're from countries whose residents do not require entry visas, customs agents have authority to grant them entry. But she notes that there are ex- isting programs that provide the same op- portunities for business travellers. "It's still a bit of a mystery how they [bor- der services] will control those 15- and 30- day stays," she says. She suggests the burden will be on business travellers to know the details of the program they enter under and to leave on or before the expiry day. Meanwhile, Phan says, she's recently received word that the government will no longer freeze a company's pending for- eign-worker applications while conduct- ing employer compliance reviews under the TFWP. "It was determined that it was against the principle that you're innocent until proven guilty," she says. TIGHTENING RESTRICTIONS e Temporary Foreign Workers Program was born in 1973 as the Non-Immigrant Employment Authorization Program. It was intended primarily to aid in recruiting skilled workers, as well as migratory farm labour, and in the late 1990s, according to Statistics Canada, 67 per cent of temporary | IN-HOUSE ADVISOR: HIRING FOREIGN TALENT |

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