On top of the seemingly never-ending changes to Canada’s Temporary Foreign Worker Program, comes a new twist. In order to hire a foreign worker, an employer must (subject to only a few exceptions) conduct a recruitment campaign pursuant to strict guidelines. The employer must then substantiate the need to seek a foreign if no Canadian could be found pursuant to the recruitment campaign. This is the basic tenet of the Labour Market Impact Assessment system (until recently called the Labour Market Opinion program). Among the recruitment guidelines is a requirement to post jobs to Canada’s Job Bank (except in some provinces that have their own job banks). The way to carry out such postings has changed drastically, and employers must be prepared.
The Old System
Until now, when posting on the Job Bank, employers input information about the employment opportunity, including:
- The applicable NOC code> NOC is the National Occupational Classification, which categorizes all jobs by type of work and level of seniority within that type of work. (e.g. in the legal field you may have legal secretary, paralegal and lawyer in ascending order).> The NOC code along with the place of employment will determine salary
- Other information about the job duties, etc.
These factors were key, because not every job fits into a nice pigeon-hole, and sometimes it was necessary to ensure that the NOC code used was appropriate for the opportunity in question. The consequences of using different NOC codes can have a great impact on the process, and notably the appropriate salary.
The New System
Recently, the government has altered the way that jobs are posted to the Job Bank. They have reduced or indeed eliminated the degree of flexibility that an employer has in posting the job to the Job Bank. Essentially, the system forces the employer into a specific NOC category, no matter what nuances there may be to the type or level of the job. Under the new scheme:
- An employer must choose from a pre-set list of general job categories (which are NOC based), which further filters down into a specific job within the broader NOC category.> e.g. An employer looking for a Botanist would log on to the Job Bank, and choose from a drop down menu of general categories (which are general NOC categories). Assuming the employer gets it right, he/she would choose the ‘Biological Scientists’ category. The employer would then be given a list of all job titles within the NOC, and presumably Botanist will appear. [Note that failure to find the correct NOC/job title may cause an inability to properly post the matter leading to further delays or refusals.]
- The system, based on the foregoing and the location of the position, will automatically set the minimum wage
Significance and Impact
This change drastically shifts the ability to characterize occupations based on their reality vs. based on how they are slotted by a rigid government computer program. It was certainly useful, and indeed legitimate and appropriate, to seek to characterize a job in various ways, given the nature of that particular position. What happens, for instance, where a job has two parts to it, one of which is in NOC X and the other in NOC Y? This alteration to the system is dramatic, and changes the ability to offer appropriate salaries that legitimately do not match the pigeon-holed value assigned by the government.
What Can Be Done
Certainly, it is important for employers to research in advance the anticipated characterization that the government will make for a position that the employer is seeking to fill. The employer can then better understand, and prepare for, the impact of the NOC and salary classifications. Where there is a truly unique/unusual circumstance, it may be necessary to seek Service Canada advise prior to lodging the Job Bank posting – but Service Canada are not so apt to ‘pre-screen’ issues. This is certainly a development which employers should take into consideration when seeking to access the Temporary Foreign Worker Program.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.