LMIA applications an employer’s responsibility: Stairs
By AdvocateDaily.com Staff
A lawsuit filed by eight Filipino migrant workers against a job recruiter and a farm in Ontario casts light on how easy it is for vulnerable people to be tricked into paying for jobs and denied the protections provided by Canadian law, says Windsor, Ont., corporate and immigration lawyer Laura Stairs.
The Toronto Star reports eight seasonal agricultural workers are suing a Toronto-based company and a farm in East Gwillimbury, Ont., alleging they were charged thousands of dollars in fees for legal advice and Labour Market Impact Assessments (LMIA), which are prerequisites for obtaining most work permits, before being sent to work at the farm. In small claims court, the workers — who say they never received the work permits and admit they worked illegally on visitor visas — are seeking to have the money they paid refunded.
Stairs, an associate with Shibley Righton LLP, says it is important for all foreign workers to know that it is employers’ responsibility to conduct and pay for LMIA applications. These documents are required by the Canadian government to prove there is a need to bring in a foreign worker because there is no Canadian to do the job and employers are not permitted to pass these costs on to workers, she says.
However, many migrant workers who come seasonally to work in agriculture do not speak English, and have difficulty understanding what the rules are, Stairs says. They may also be so desperate for work that they are willing to pay, she tells AdvocateDaily.com.
“No matter what your employer tells you, you have to have a work permit. It should be in your hands. And employers are not allowed to take away your work permit or your passport. Those are your documents, and you are responsible for them,” Stairs says.
Recruiters and employers are not legally allowed to charge the worker for the LMIA, she adds.
“The LMIA application is a $1,000 fee per worker that the employer must pay. They cannot recoup those costs from the employee,” Stairs says.
But often, she says employers will use recruiters that charge workers fees to match them with job opportunities, and this gives employers the opportunity to indirectly pass on the cost of LMIA applications.
The LMIA sets out what employers are looking for and the labour shortage they are seeing, Stairs explains.
“So if we look at farm work specifically, the LMIA would set out that the employer needs someone to do a specific job," she says. "It requires the employer to undertake a process of recruitment — they have to try to recruit Canadian citizens and permanent residents to do the job, and advertising for the position has to last at least three months
Once they’ve identified there are no Canadian citizens or permanent residents available or willing to take the job, employers are allowed to submit the LMIA application. It must include information such as the number of employees at the company, the enterprise’s general revenue, and evidence the pay and benefits being offered to foreign workers are no less than the prevailing compensation for Canadians and permanent residents working in that region at that job, Stairs says.
The county around Windsor employs thousands of migrant workers each year to plant, care for and harvest vegetables and fruit. Canada-wide, the number of migrant farmworkers is more than 50,000 a year, double the number in 2000, according to a Toronto Star report last year.
Stairs says she has seen many cases similar to the one involving the recruiter and the farm
, and doubts that publicity will have much impact.
“The struggle we have is that most of the employees or potential employees often don’t speak English, so they’re not going to read the articles before they come to Canada
, or hand over thousands of dollars in order to come here,” she says. “It’s only afterwards that they get linked up with community organizations, with other employees in the company they’re working for, that they start to see what they are entitled to and that they are being wronged by their employer.”
It would be of more benefit for employers “to be actually held accountable,” she says.
There are organizations advocating for the rights of vulnerable farm workers, including Justicia for Migrant Workers (J4MW) in Toronto, which sends volunteers to the Windsor area and elsewhere to meet with workers and give them information about their rights, she says.