Author: CHC September 24, 2018

CHANGES TO HOUSING

Following the cross-Canada Primary Agriculture Consultations, several employers identified unintended consequences related to the 2018 Housing Policy changes, such as the inability to obtain housing inspection reports for temporary foreign workers (TFWs) staying in hotels; delayed Labour Market Impact Assessments (LMIA) because housing inspection reports could not be obtained for new builds or leases; and no clear policy position for transfer workers that do not change housing. To address these concerns, starting in the 2018-2019 season, the Temporary Foreign Worker (TFW) Program has increased flexibility in these areas, while maintaining worker protection measures.

All accommodations must meet the established housing policy requirements for the Primary Agriculture Stream. Unless otherwise indicated, the following measures would affect all Primary Agriculture Streams.

 Commercial Accommodations

 Employers farming some commodities, such as apiary, are required to use commercial accommodations (e.g. hotels, motels, bed and breakfasts) for their workers because it is an industry practice to move from farm to farm. As most employers cannot request a housing inspection report for commercial accommodations, it was difficult to meet the obligation to produce a housing report.

• Accordingly, ESDC will introduce the following measures to address this barrier:

• When submitting an LMIA, the employer will be required to identify all commercial accommodations (where possible) where the TFW will be housed while in Canada and provide proof of the ratings and reservation with their LMIA Application.
• Employers should ensure that commercial accommodations provide one bed for every worker, and workers should not be required to share a bed with individuals, other than their spouse.
• Whenever possible, employers should provide workers with commercial accommodations equipped with cooking facilities, however, in the event that these facilities are not available, employers should provide their workers with meals, and may refer to the appropriate employment agreements for information on deduction options.
• If the commercial accommodations are rated three stars (3) and above, the housing inspection may be waived if the employer provides proof of the star rating and the reservation with their LMIA application.
• If the commercial accommodations are rated under three (3) stars, the Service Canada officer will apply a reasonability test, including:

• • Research using online resources (e.g., the website, trip review sites, recent news regarding the location and the surrounding area).
• If the Service Canada officer is not satisfied after reviewing the available online information, the employer may be asked to provide additional documentation:
  • If the commercial accommodations are part of a chain, there can be reasonable expectation that the accommodations would meet Primary Agriculture housing requirements; and
  • If the commercial accommodations operate as an independent business, employers may be asked to provide additional information to support their application such as documentation that the accommodations has been inspected by the relevant provincial/territorial/municipal health or other authorities for the accommodations and passed. This could be obtained from a public website if posted publicly, or from the proprietor of the hotel.
• Service Canada officers should be notified, in writing, of major changes to the TFW accommodations including if:
  • Circumstances require the reservation to be modified for a period of time longer than seven (7) days;
  • the location of the accommodations changes;
  • additional locations are required (i.e. business operations require additional commercial accommodations or locations)
• If any employer makes a major change to commercial accommodations for TFWs that were previously disclosed as part of their LMIA application:
  • Employers should provide a copy of this record with a rationale for the change to their Service Canada officer within 72 hours.
  • This information would be uploaded to the appropriate LMIA file for the employer
  • A copy, as well as any applicable supporting documentation (e.g. reservation records), should be retained by the employer in the event of an inspection.
• If the employer must make minor amendments to a previously disclosed plan for commercial accommodations, due to reasonable circumstances (e.g. weather conditions, production demands):
  • Employers should maintain a record of these amendments over the course of the season.
  • A copy of this record does not need to be submitted to Service Canada.
  • A copy of the changes, as well as any applicable supporting documentation (e.g. reservation records), should be retained by the employer in the event of an inspection.

 Housing Unavailable for Inspection

• Some employers have accommodations that are used for the TFWs however they are not available in time for the housing inspection to be conducted within the eight months necessary for the employer to apply for their LMIA because:
• They are not constructed yet (new builds/ pre-fabricated homes); or
• The accommodations will be leased.

• Accordingly, the following information will be accepted as part of the LMIA application:

New builds and Pre-Fabricated Homes

• For pre-fabricated housing, the employer may submit evidence, such as the contract with the pre-fabricated supplier with an expected delivery date, and identify an alternative option if the building is not ready in time for the workers arrival(e.g. a commitment to book hotel accommodations if housing is no longer available);
• Employers will be expected to have these structures completed and inspected no less than one (1) month before the first worker arrives;
• Once available, employers should provide the housing inspection report to Service Canada officers, no less than one (1) month before the first worker arrives;
• If the housing does not meet TFW Program requirements, the positive LMIA may be revoked; and
• Given TFWs must pay for work permits prior to arrival, if the housing does not meet the established requirements, the employer should reimburse the worker the cost of the work permit.

Lease Agreements

• Employers are required to provide proof of the lease agreement and identify an alternative option if the lease is not ready in time for the workers arrival (e.g. a commitment to book hotel accommodations or arrange another lease if housing is no longer available). If a lease agreement is not possible, the employer may submit a letter from the landlord, stating their intention to lease the property and the dates for the lease.
• Employers will attest that they will submit a housing inspection report no less than one (1) month before the first worker arrives;
• Once available, employers will be responsible to provide the housing inspection report to Service Canada;
• If the housing does not meet TFW Program requirements, the positive LMIA may be revoked; and
• Given TFWs must pay for work permits prior to arrival, if the housing does not meet the established requirements, the employer should reimburse the worker the cost of the work permit.
• Service Canada officers should be notified, in writing, of major changes to the leased accommodations for TFW, including if:
  • Circumstances require the accommodations to be modified for a period of time longer than seven (7) days;
  • the location of the accommodations changes;
  • additional locations are required (i.e. business operations require additional commercial accommodations or locations)
• If any employer makes a change to the leased accommodations for TFWs that were previously disclosed as part of their LMIA application:
  • Employers should provide a copy of this record with a rationale for the change to their Service Canada officer within 72 hours.
  • This information would be uploaded to the appropriate LMIA file for the employer
  • A copy, as well as any applicable supporting documentation (e.g. reservation records), should be retained by the employer in the event of an inspection.

 

Transfer Workers Remaining in Original Accommodations

 

• Under the SAWP Program, transfer of workers is permitted; however, there is currently no policy for transfer workers who stay in their current dwelling, even though they are working for a different employer.
• As of August 1, 2018, if a SAWP employer transfers workers to another SAWP employer, and the workers will remain in the same approved accommodations on the former employer’s property, the housing inspection report used by the transferring employer to assess the accommodations may be used by the receiving employer within that calendar year.
• To do this, the receiving employer must include with their LMIA application, an attestation signed by both employers that includes the following information:

• The name and location of the business of the receiving employer;
• The names of all transferring workers;
• The start and end dates of the transferred employment;
• The LMIA number for the transferring employer;
• The address of the accommodations where the workers will live; and
• The housing inspection used for the transferring employer’s positive LMIA.

• The attestation must also identify if all the workers in the accommodations will be transferred to the receiving employer; or if both the transferring and receiving employers will have workers living in the accommodations.
• If all workers in the accommodations will be transferred to the receiving employer, the attestation must include a statement that the receiving employer agrees and acknowledges that:

• The receiving employer will assume all responsibility for the cost of any housing repairs and for any housing-related integrity activities that occur during any period of time that they employ workers living in the accommodations; and
• Any pending inspections, or potential non-compliance related to housing identified during an inspection, may result in the deferral or suspension of LMIAs for the receiving employer.

• If both the transferring and receiving employers will have workers living in the accommodations, the attestation must include a statement that both employers agree and acknowledge that:

• Both employers will be equally responsible for the cost of any housing repairs and for any housing-related integrity activities that occur during any period of time that they employ workers living in the accommodations; and
• Any pending inspections, or potential non-compliance related to housing identified during an inspection, may result in the deferral or suspension of LMIAs for both employers.

Housing for Additional Transfer Workers

• Effective as of the 2019 season, if the initial LMIA is granted, the corresponding housing inspection may be used for subsequent LMIAs for transfer and/or replacement workers living in the same accommodations within that calendar season, provided the total number of workers in the accommodations do not exceed maximum occupancy.

 BC Conditions for Housing Inspections

• In response to housing concerns in BC, certain interim measures were implemented for the 2018 season and will be extended for BC employers for.

• All BC employers must use the BCAC form to complete the housing inspection for the LMIA application; and
• All BC employers must use the BCAC list of housing inspectors.

 LABOUR MARKET IMPACT ASSESSMENT (LMIA) APPLICATIONS

 Biometrics Measures

• As of December 31, 2018, all foreign workers will be required to provide biometrics information to obtain entry into Canada.
• To streamline processing of LMIA applications for employers who require workers early in the season, we are implementing the following:

• For the upcoming season, LMIA applications will be accepted earlier than usual for primary agriculture employers who are requesting workers to arrive in January and February 2019. This would provide employers who typically need workers early in the season sufficient time to receive an LMIA decision and provide workers additional time to secure a work permit given the anticipated surge in applicants.
• For agriculture positions commencing in 2019, the usual LMIA validity period of six months will be extended so that LMIAs are valid until December 15, 2019 (the date on which all SAWP workers must leave Canada each year) or for six months, whichever is longer. This will ensure that employers would not have to re-apply for an LMIA should their approved LMIA expire while waiting for workers’ work permits to be processed.
• To standardize processing across Canada, the TFW Program will allow processing of SAWP LMIA applications that include multiple TFW arrival dates with the same wage and NOC within one LMIA application to lessen the administrative burden on employers.

Submission of Employment Contracts with LMIA Application

• Currently, SAWP employers must include a copy of the SAWP contract with their LMIA application; however, the SAWP contract is a standard contract that cannot be altered, and is usually unsigned at the time the LMIA application is submitted.
• Currently, employers using the Agricultural Stream must submit a contract with their LMIA application, using either the sample contract on the Service Canada website or an alternative contract with all the same elements as the sample contract.
• To reduce paperwork for employers:
  • a copy of the SAWP employment contract will no longer need to be included with the LMIA application.
  • Employers using the Agricultural Stream will not be required to submit a copy of the employment contract, provided they use the sample contract available on the Service Canada website.
• Employers will still be required to have a copy of the employment contract on file, signed by both the employer and workers (after they arrive), in the event of an inspection.