When Are They Breached and Are They Different From Non-Compliance?
When hiring foreign workers, it is important to be able to read the work permit and understand the implications. From the employer’s perspective the most important part of the work permit is the listed conditions. There are generally four to seven conditions listed in the bottom half of the work permit dependant on the circumstances. The conditions may include the following:
- Not authorized to work in any occupation other than listed;
- Not authorized to work for any employer other than listed;
- Not authorized to work in any location other than listed;
- Unless authorized, prohibited from attending any educational institution and taking any academic, professional, or vocational training course;
- Must leave Canada by [expiry date];
- Not authorized to work in 1) Child Care, 2) Primary or Secondary School Teaching, or 3) Health Service Occupations;
- Not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours, or escort services.
My favorite one is the last one. It generally appears on open work permits, and in my practice I see it on open spousal work permits. When the condition was first introduced a few years ago the reaction from clients ranged from laughter to outrage that the government should imply that they (or their accompanying spouse) would do such a thing.
The work permit will specifically list the occupation, employer, location and expiry date on the top half of the document. Sometimes the occupation, employer or location field will say “open” or “unknown” which negates the effect of the condition.
All these conditions can be worked with or managed according to the needs of the employment, it is just a matter of knowing what to ask for and when. Any requested change to the work permit conditions must be made and processed before the change in employment goes into effect.
To be outside the conditions of the work permit would create a breach which automatically invalidates the work permit. The employee would then technically be working illegally.
Depending on the type of work permit breach there may be a grace period in which the breach can be remedied, however the employee is usually unable to work in Canada until the remedy is in effect.
In the alternative, if immigration discovers the breach, they can take action which may include deportation of the employee, fines for the employee and the employer, bans from re-entering Canada, and it can trigger an investigation into the overall immigration compliance of the employer.
Although adherence to the conditions of the work permit is included in compliance, compliance is much broader than just a breach of the work permit conditions. Compliance uses the work permit employer compliance filing, submitted at the time the work permit application was filed, and asks the employer to prove that the information provided was correct. The compliance review includes things like salary paid, hours worked, benefits given, and vacation time.
Failed compliance reviews have more severe consequences for the employer including increased fines and an inability to access foreign worker programs for specific periods of time.
The following are my top five recommendations for protecting your company against work permit (and compliance) breaches:
- Keep copies of employee’s work permits in their personnel file;
- Whenever contemplating a change in employment for a foreign national employee, review the terms and conditions of their work permit to ensure they are not impacted;
- Take time to review work permits at least annually. During an annual performance review is usually a good time;
- Be proactive, if you know an employee may be working in multiple locations or in different roles, address this in the initial work permit application so you don’t need to go back and amend the work permit later; and
- When in doubt, call your immigration provider. An ounce of prevention is better (and much cheaper) than a cure.
If you want more information about immigration compliance, please see my previous blog, Top Ten Things to Know When Hiring a Foreign Worker – Compliance.
