published on 1 August 2012 @ 9:42 pm · COMMENT
Fast-Track LMO Processing Leads to Compliance Reviews for Employers
Service Canada has implemented a new A-LMO (Accelerated Labour Market Opinion) program which is intended to respond to the needs of eligible employers for timely Labour Market Opinion (LMO) processing. However, this initiative places substantial responsibility on the employer for program compliance which translates into maintain records and compliance reviews, which are similar in nature to a tax audit.
The A-LMO program simplifies the application process for employers but it also places a substantial burden on employers by requiring attestations on the application form. An A-LMO application does not exempt employers from criteria assessed in the regular LMO process, including:
- the genuineness of the job offer;
- the wage offered; and
- whether the job offer is likely to fill a labour shortage.
If the employer meets all the eligibility criteria to participate in the A-LMO Initiative, HRSDC/Service Canada will then verify if the employer has agreed to all of the attestations and issue a positive A-LMO within 10 business days.
Employer A-LMO Eligibility
The A-LMO Initiative applies only to higher skilled positions such as: management, professional and technical occupations (classified under the National Occupational Classification (NOC) skill type 0, and skill levels A and B), although there are some exemptions to this general rule. To be eligible for this Initiative:
- The employer must have been issued at least one (1) positive Labour Market Opinion in the previous two (2) years;
- The employer must have a clean record of compliance with the Temporary Foreign Worker Program within the last two (2) years;
- The employer has agreed to all of the attestations included in the application and consented to participate in a compliance review to ensure that the employer is meeting the terms and conditions set out in the Labour Market Opinion letter;
- The employer must not have been the subject of an investigation, infraction or a serious complaint; and
- The employer must not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.
By consenting, employers agree to allow HRSDC/Service Canada to perform a compliance review of the positive A-LMO or any other positive LMO issued to the employer in the previous two years.
During the review, employers will be required to submit documentation to demonstrate compliance with the terms and conditions of the positive LMO or A-LMO letters and their annexes. Up to 20% of positive A-LMOs will be selected for a compliance review. These reviews may be based on random selection, or in response to information received subsequent to the issuance of an A-LMO.
Employer Compliance Review
To be compliant, employers must meet all the terms and conditions set out in the positive A-LMO or LMO letters and their annexes. Compliance includes, but is not limited to the fact that the:
- employer provided wages, working conditions, and an occupation to the TFW that are substantially the same as those offered in the LMO or A-LMO application;
- employer provided wages and working conditions that are the same as those offered to Canadian citizens and permanent residents in the same occupation and work location;
- employer performed the minimum recruitment efforts required by the Program;
- employment of a TFW filled a labour shortage;
- employment of a TFW did not adversely affect the settlement of a labour dispute; and
- employer agrees to abide by the relevant federal/provincial/territorial laws that regulate employment and recruitment.
To demonstrate compliance through a review, employers may be required to submit the following documents indicating that they have abided by the terms of the A-LMO application. The compliance process is similar to a tax audit.
For example, employers may be asked to furnish some or all of the following information to ensure compliance with Service Canada requirements:
- payroll information for the TFW and potentially for Canadian citizens and permanent residents;
- collective bargaining agreements;
- time sheets;
- job descriptions;
- copies of recruitment advertising;
- proof of no labour dispute;
- copies of the TFW’s work permit; and
- proof of registration with provincial/territorial workplace safety, where applicable.
Employers should maintain all the above information and employment records for no less than 6 years.
Non-compliance and/or failure to provide the requested documentation will result in various Service Canada penalties in addition to possible investigations for misrepresentation and non-compliance under Canada’sImmigration and Refugee Protection Act.
By consenting to the terms and conditions set out in the A-LMO application, employers agree to allow HRSDC/Service Canada to perform a compliance review of the positive A-LMO or any other positive LMO issued.
For further information about 10 day processing of A-LMO applications, please contact us.
filed under: ALMO