Open work permit for vulnerable workers in Canada
The Canadian government provides work permits for those being exploited, but workers must prove that they are being mistreated. Employers must comply with 28 conditions when hiring foreign workers. If a worker applies for this permit, the employer will become the subject of an investigation and may face serious legal consequences. However, some workers have abused this type of permit. Workers need to be thoroughly advised before filing an application.
Below is an article written for us by lawyer Phan Thanh regarding the current issue, along with a 4-year open work permit that Lawyer Phan Thanh just helped a client obtain.
The work permit for exploited persons is a special humanitarian policy of the Canadian Government for those currently working in Canada on a work permit tied to a specific employer. To apply for this permit, the worker must prove that they are being mistreated by the employer and point out the employer's violations.
When a business hires a foreign worker, especially through the LMIA stream, the employer must comply with 28 conditions in addition to the standard obligations of regular employers in Canada. In reality, many workers—due to a lack of knowledge or being brought to Canada by brokers colluding with employers—are abandoned or exploited by being paid below the promised rate, or sent to work in jobs or locations that do not match what was promised when the work permit was applied for.
Workers in such situations are often threatened that they will be deported from Canada if they do not obey. However, Canadian law generally protects workers in such cases. They can apply for a work permit for exploited workers, which is typically valid for one year. In a special case, a person in BC obtained this type of work permit for up to 4 years. However, this individual's case was quite specific, as the employer violated more than 12 conditions and showed signs of organized crime. The lawyer had to intervene to work with provincial and federal labor regulatory agencies.
This shows that when a worker applies for this type of permit, the employer becomes the subject of an investigation by the labor regulatory agency. The employer will face penalties and will likely find it difficult to obtain an LMIA to hire foreign workers in the future. In more serious cases, managers may face personal liability, including criminal liability. Therefore, employers should be extremely careful when hearing someone say they have the right to exploit or mistreat foreign workers and can do whatever they want.
ABUSE OF OPEN WORK PERMIT: A WARNING TO WORKERS
Conversely, some workers have also abused this type of permit to move to other jobs even though the employer has done nothing wrong. It should be noted that when applying for a work permit for mistreated workers, if the worker cannot prove the employer's wrongdoing, the application may not be approved. Furthermore, making false reports will also lead to legal consequences for the worker. Therefore, one should not abuse the application for this permit. Workers need to be thoroughly advised before filing an application.
Another issue to note is that when there are many applications for work permits for mistreated workers, the government will review its work permit and LMIA issuance programs. At that time, employers who truly need to bring workers to Canada will face many difficulties in the LMIA and work permit application processes for their workers. The government may set its sights on employers and workers from certain countries if that community is found to have many fraudulent behaviors and legal violations in this field. Hopefully, employers will always have a thorough understanding of the law to avoid being lured into and becoming involved in regrettable violations. On the other hand, workers must also understand their rights and obligations to avoid being exploited, but also to avoid being instigated by bad actors to make baseless accusations that affect their ability to work and live in Canada.
BOOK A CONSULTATION
The issue of hiring foreign workers not only causes trouble for the worker, but business owners can also face difficulties due to a lack of understanding of the legal system and requirements. To protect the safety and interests of your business, or if you are a worker who is actually being abused, please contact KeyApply to schedule a consultation with a lawyer for your case.
Lawyer Phan Thanh, PhD in Law, Velletta Pedersen Christie Lawyers
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Specialization: Business Immigration, Corporate, Commercial, Employment, and Commercial Real Estate law.
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Education: PhD in Law (University of Victoria, 2018), LL.M. (York University, Osgoode Hall Law School, 2021), LL.M. (Nagoya University, 2013), LL.B. (Hanoi Law University, 2004).
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Memberships: Canadian Immigration Lawyers Association, Canadian Bar Association, The Federation of Asian Canadian Lawyers (British Columbia).
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Teaching positions: Immigration and Citizenship at Queen’s University Faculty of Law and the University of Victoria.
