EMPLOYERS are to be aware that under the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) and the Immigration and Refugee Protection Act (IRPA) guidelines are now in place to validate employer compliance, under the Seasonal Agricultural Worker Program (SAWP).
TYPES OF REVIEWS UNDER INTEGRITY SERVICES
- Random Inspection
- An Employer Compliance Review (ECR)
- A review under Ministerial Instruction
INSPECTIONS – THERE ARE THREE REASONS WHY AN EMPLOYER IS SELECTED
- There is reason to suspect non-compliance (i.e. a tip was received)
- Previous non-compliance
- Random selection
If an Employer is selected for a review they will be informed of:
- The type of review being undertaken, including the legislative or regulatory authority under which the review is authorized
- The type of inspection, namely whether a site visit and/or interview will be conducted, and the period being reviewed (before or after December 1, 2015)
- The condition(s) for which they need to demonstrate compliance and/or accuracy of the information provided
- Specific actions they may need to take, such as providing documents, attending an interview and the timelines
- Consequences of non-compliance or non-response
- LMIAs may be suspended during a review of any kind (inspection, ECR, or under Ministerial Instruction). A suspension is temporary and prevents foreign nationals from obtaining a work permit from Immigration, Refugees and Citizenship Canada (IRCC) while a review is being conducted.
- Following the review, the employer will be informed of whether the suspension will be lifted as well as the outcome of the review.
- When an LMIA has been suspended and the decision is made to life the suspension, ESDC/Service Canada may re-issue another LMIA with a validity period equal to the period remaining on the original LMIA at the time of the suspension, at no additional cost to the employer or, in special circumstances, request that the employer submit a new application for an LMIA.
- In the event that a suspension lasts longer than six months, ESDC/Service Canada may re-consider the impact that lifting the suspension may have on the labour market. This may mean that additional requirements need to be met by the employer (for example additional advertising) and the validity period may be affected.
EMPLOYERS ARE RESPONSIBLE FOR:
- ensuring they meet all of the conditions and requirements of the Temporary Foreign Worker (TFW) Program, as outlined in documents such as the Labour Market Impact Assessment (LMIA) application, the LMIA decision letter and annexes;
- keeping all records associated to their LMIA application and any other documents that demonstrate their compliance with the program conditions that are set out in the LMIA decision letter and annexes for a period of 6 years; and
- informing Employment and Social Development Canada (ESDC)/Service Canada of any changes or errors relating to an approved LMIA, the temporary foreign worker or the working conditions.
For more information visit:
Employer Compliance Review Document Checklist
Documents/information that must be retained for 6 years (this is by no means an exhaustive list):
- Signed SAWP employment agreement (signed by worker, employer, and foreign government)
- Additional signed deduction agreements if applicable, examples could be:
- agreement for a pay advance provided to a worker and recovered from their pay cheque
- agreement for each instance a worker is required to work 7 days per week, where the urgency to finish farm work cannot be delayed. Worker can consent to postpone that day off until a mutually agreeable date.
- worker request to have merchandise paid by employer for worker’s personal use deducted from pay
- Copy of LMIA Application submitted to F.A.R.M.S.
- Copies of all advertisements listed on LMIA applications (must show duration of ads)
- Payroll statements including number of hours worked, hourly wage, and all deductions
- Bank statements or cancelled cheques corresponding to payroll statements
- Piecework – proof that worker was paid wages at least equivalent to the rate of one hour of employment as determined on page 8 Agricultural Wage Rate for every hour worked on the harvest
- Timesheets including daily start and end times
- Proof worker went home at end of season and payment of round trip airfare (credit card receipts/bank statements, airfare invoice)
- Proof of enrolment in provincial health & safety compensation organization (E.g. Ontario – WSIB)
- Documentation of all pesticide training (informal or formal)
- Mexico – proof of private health care coverage (Great West Life)
- Housing Inspection Reports and rental agreements if housing is not owned by employer
- Vacation Pay- Proof of harvesting hours worked (refer to Employment Standards for details)
- Abuse Free Workplace Policy (handbook or posted at workplace)
- Proof if workers were transferred to another SAWP employer with the completion of the SAWP Worker Transfer Confirmation Form
- Documentation for all work locations listed on LMIA application (including rental agreements if land is not owned by employer)
- Mexico – Uniforms – proof the worker was charged 50% of employer’s actual cost for uniforms