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Hire a temporary worker through the Seasonal Agricultural Worker Program – Program requirements

 

Notice:

New requirements on housing inspections for positions related to primary agriculture are effective as of January 1, 2018.

2. Program requirements

Processing Fee

LMIA processing fee does not apply to occupations related to primary agriculture and positions under the National Occupational Classification (NOC) codes 0821, 0822, 8252, 8255, 8431, 8432 and 8611.

Transportation

Employers must always arrange and pay for the round-trip transportation (for example plane, train, boat, car, bus) of the temporary foreign worker (TFW) to the location of work in Canada, and back to the TFW's country of residence. A portion of these costs can be recovered through payroll deductions in all provinces, except in British Columbia. The maximum amount that can be deducted is specified in the employment contract entitled Agreement for the employment in Canada for SAWP.

Employers must keep records (for example invoices, receipts, copies of flight itineraries, tickets, boarding passes) of all transportation costs paid, for a minimum of 6 years. This information may be required as proof if employers re-apply for a subsequent LMIA or if they are selected for an inspection.

Day-to-day transportation

Employers must provide to the TFWs, where required, no-cost transportation to and from the on-site/off-site housing location to the work location.

Housing

Employers must provide TFWs with adequate, suitable and affordable housing as defined by the Canadian Mortgage and Housing Corporation. The housing can be either on-farm (for example bunkhouse) or off-site (for example commercial establishment). Employers must ensure the occupancy of each accommodation location does not exceed the maximum occupancy permitted. They must also ensure that sufficient housing will be made available for all TFWs per approved accommodation from the date of arrival to the date of departure.

Housing Inspection

Employers must provide proof that the on-farm or off-site housing has been inspected by the appropriate provincial/territorial/municipal body or by an authorized private inspector with appropriate certifications. If the authorized inspector or jurisdiction does not have a standard format for reporting official housing inspections, employers must ensure that Schedule F – Housing inspection report seasonal agricultural worker program and agricultural stream is used to report the results.

Effective January 1, 2018, new requirements will need to be followed to confirm that the housing provided to temporary foreign agricultural workers has been inspected, and that all conditions on the housing inspection report have been addressed prior to obtaining a decision.

These additional requirements will include that:

The housing inspection report must:

  • have all relevant sections completed;
  • indicate that the housing has been inspected within the last eight months prior to the date the LMIA application is received by Service Canada (In the case of replacements of TFWs, employers applying for a subsequent LMIA, may use the corresponding housing inspection report even though it is over eight months.); and
  • indicate the maximum number of workers permitted per approved accommodation.

Additionally, employers in British Columbia must:

  • use the British Columbia Agriculture Council (BCAC) housing inspection form; and
  • have the housing inspection conducted by a BCAC sanctioned inspector, authorized to conduct housing inspections.

Failure to meet the requirements for the housing inspection report without justification will result in the LMIA application being considered incomplete.

Although a housing inspection report with a “pass with conditions” status will still be accepted for the purpose of processing an LMIA application, a decision will not be rendered until the employer has provided evidence that all conditions on the housing inspection report have been addressed.

Employers are responsible for any costs that may be associated to having the housing inspected. Under no circumstances can employers recover these costs from the TFW.

Health and workplace safety

Health insurance

Employers must ensure that all TFWs are registered for provincial/territorial health insurance as soon as they become eligible. The waiting period to be eligible for the provincial/territorial health insurance is available on the Ministry of Health web sites for each province/territory.

Note :

Employers hiring TFWs from:

  • Mexico must submit payments to Great West Life Assurance Company. Employers can recover these costs through payroll deductions.

The liaison officer for the foreign government will provide instructions and assistance to employers regarding these deductions.

Workplace safety

Employers must always ensure that the TFWs they want to hire under the TFW Program are covered from the provincial/territorial workplace safety insurance provider, where required by law. In provinces/territories where the provincial/territorial legislation allows employers the flexibility to opt for a private insurance plan, employers must ensure:

  • that any private plan chosen provides the same level of compensation to that offered by a province/territory (for example must provide the same or better coverage than that offered by the province/territory)
  • that all employees on the worksite are covered by the same provider

Employers enquiring about private insurance plan equivalency should contact the provincial/territorial workplace safety authority.

The coverage purchased by the employer must correspond with the TFWs’ first day of work in Canada and the costs must not be recovered from the TFWs.

Pesticides and chemical use

Employers using pesticides or other hazardous chemical must follow provincial/territorial rules. They must notify workers of pesticide and chemical use and provide workers with:

  • free protective equipment
  • appropriate formal and informal training
  • supervision where required by law

Employment contract

Employers must complete and sign the employment contract entitled Agreement for the employment in Canada for SAWP and send it with the Labour Market Impact Assessment (LMIA) application to Service Canada. The employment contract also requires the signature of the liaison officer for the foreign government and the TFW identified on the LMIA application. In situations where the names of the TFWs have not been identified prior to their arrival in Canada, employers must ensure a copy of the employment contract is provided to them (in French or English and Spanish) for signature on the first day of employment.

The purpose of the employment contract is to specify each party's rights and obligations, as well as to ensure that all parties understand and agree to the working conditions and their respective responsibilities. In the event that differences arise between the employer and the TFW, the contract will guide the resolution of disputes. In cases of demonstrable breaches of the employment contract, and where no resolution, including possible compensation, has been made, the TFW, the liaison officer or the employer can contact the Ministry of Labour in the province/territory where the work is being performed.

Business legitimacy

All employers applying to the Temporary Foreign Worker Program (TFWP) must supply documents along with their Labour Market Impact Assessment application to demonstrate that their business and job offer are legitimate.

Work permit fees

Seasonal agricultural workers who are anticipated to arrive in Canada on or after January 1, 2017 are responsible to pay for their work permit fees directly to Immigration, Refugees and Citizenship Canada.

Transfer of seasonal agricultural workers

Employers can transfer a worker from one farm to another, provided the employer has:

  • the worker's consent
  • prior written approval from the foreign government representative in Canada
  • prior written approval from ESDC/Service Canada

For workers from:

  • Mexico – this provision is included in the Mexican contract
  • Caribbean – the employer and TFW must sign a transfer contract

Note: There are no work permit fees when transferring TFWs between employers, as the fees have already been paid prior to the workers' arrival in Canada.

Illegal transfer of workers

Employers cannot informally transfer TFWs from one employer to another or share them between employers. Transferring or sharing TFWs informally contravenes sections 124(1)(c) and 125 of the Immigration and Refugee Protection Act (IRPA) and is punishable by a fine of up to $50,000 and imprisonment.

Third-party representatives

Employers do not need to use the services of a third-party representative to apply for a TFW. However, employers who choose to use the services of one of these individuals or organizations must pay for all of the fees associated with the service and meet all of the requirements.

Representatives assist employers by providing services including, such as:

  • explaining and providing advice on the Temporary Foreign Worker Program (TFWP)
  • completing and submitting the application form and all required documents
  • communicating with ESDC/Service Canada on the employer's behalf
  • representing the employer during the application process

Employers who wish to use the services of a third-party representative, paid or unpaid, must complete the appropriate section of the LMIA application form. Employers must identify their representative and not simply the firm/organization employing this person.

Paid representatives

Individuals representing or assisting employers in exchange for compensation (for example money, goods or services) must be authorized under section 91 of the IRPA, which means they have to be a member in good standing with:

  • a Canadian provincial/territorial law society, or a student-at-law under its supervision
  • the Chambre des notaires du Québec
  • the Province of Ontario's law society as a paralegal
  • the Immigration Consultants of Canada Regulatory Council (ICCRC)

Employers should visit IRCC to verify that a specific representative is authorized to represent them or to provide immigration advice.

Unpaid representatives

Individuals representing employers for free (for example do not collect fees or other forms of compensation) are not subject to any restrictions under the IRPA. These individuals are usually family members, non-profit or religious organizations that assist employers who may not be able to complete the application process on their own.

If a paid representative is not authorized under the IRPA, ESDC/Service Canada will continue to process the application, but will communicate with the employer directly. However, a copy of a signed letter stating that the employer is no longer using the services of the original representative will be required before the employer can:

  • hire another paid authorized representative; or
  • work with an unpaid representative.

ESDC/Service Canada:

  • reserves the right to contact employers directly when further information or documentation is required.
  • will not mediate a dispute between an employer and a third-party representative nor communicate complaints to a regulatory body on an employer's behalf. Employers who wish to file a formal complaint against their representative should contact the appropriate regulatory body (for example the provincial law society, the Chambre des notaires du Québec or the ICCR. For additional information on how to file a complaint, visit IRCC.
 
 
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