Client Update: Nova Scotia Amends Foreign Worker Rules to Exempt Some Recruiters and Employers From Licensing and Registration Requirements

On May 19, 2011, Nova Scotia’s Labour Standards Code was amended to protect foreign workers from exploitation by recruiters and employers. These amendments imposed a requirement for third-party recruiters to obtain a license from the Province to recruit foreign workers for employment in Nova Scotia. They also introduced a requirement for employers to register with the Labour Standards Division before employing a foreign worker in Nova Scotia. The recruiter licensing process became mandatory on May 1, 2013, and employers of foreign workers have been required to register since August 1, 2013.

The purpose of these measures is to protect vulnerable foreign workers from unfair treatment and from being charged illegal placement fees. When the recruiter licensing and employer registration regimes came into effect the Province received feedback from various stakeholders who complained about the overly broad and burdensome nature of these requirements.

In recognition that some aspects of Nova Scotia’s foreign worker rules applied to the recruitment and hiring of individuals who are not vulnerable, amendments were made to the General Regulations Respecting Labour Standards on September 10, 2013 to exempt certain third-party recruiters and employers of foreign workers from the licensing and registration requirements. These changes function to more narrowly focus the provincial regulations governing the recruitment and hiring of foreign workers on those who are more vulnerable, by virtue of the skill level of their job, by exempting certain types of employers (and those who recruit foreign workers for them) from these requirements.

Foreign Worker Recruiter License

Previously any third party engaged in foreign worker recruitment for a Nova Scotia employer was required to hold a license issued by Labour Standards. Following last week’s amendments, recruiters no longer require a license to engage in the following types of foreign worker recruitment activities on behalf of Nova Scotia employers:

1. Recruiting foreign workers for jobs with the following types of entities:

• Provincial “Government Reporting Entities” such as provincial government departments, crown corporations, health authorities, the Nova Scotia Community College and school boards.
• Municipalities.
• Universities.

2. Recruiting foreign workers for management and professional positions that fall within skill type 0 and skill level A occupations on the National Occupational Classification (“NOC”) Matrix developed by Human Resources and Skills Development Canada in partnership with Statistics Canada. Based on skill type and level, the exempt occupations include:

• • Management Occupations (NOC 0) – The NOC Matrix lists management occupations in a variety of industries in this skill type classification including executive roles, senior managers, legislators, managers in health care, corporate sales managers and managers in human resources, finance, construction, information technology and retail.
  • Professional Occupations (NOC A) – The professional occupations included as NOC A roles in the NOC Matrix include accountants, physicians, lawyers, teachers, professors, dentists, librarians, translators, psychologists, engineers, mathematicians and scientists.

  Third-party recruiters, however, are only exempt from the licensing requirement if their recruitment of foreign workers for employment in Nova Scotia is restricted to NOC 0 and A positions. Any recruiter that also searches to fill NOC B (high-skilled), C (semi-skilled) or D (low-skilled) positions with foreign workers must be licensed by Nova Scotia. Recruiters who conduct overseas recruitment efforts to fill NOC 0 and A roles are permitted to recruit domestically for NOC B, C and D positions without needing a license.

  Not all recruiters qualify for a license to recruit foreign workers for employment in Nova Scotia. Only members in good standing with a provincial or territorial bar society, the Chamber des notaires du Quebec or the Immigration Consultants of Canada Regulatory Council are eligible to apply for a license. The newly implemented recruiter licensing exemptions are, therefore, good news for executive search firms in Canada and the Nova Scotia employers who rely on their expertise. The requirement to become licensed was particularly problematic since most professional search firms do not have (or otherwise require) a lawyer or immigration consultant actively involved in searches that extend beyond Canada’s borders.

  Employer Registration Process

  The regulatory amendments also identify certain employers who are exempt from the requirement to hold a registration certificate to hire foreign workers in Nova Scotia. These amendments mirror the exemptions that were added to the recruiter licensing regime such that the following types of employers no longer require a registration certificate:

• Provincial government reporting entities, municipalities and universities.
• Employers seeking to hire foreign workers in management (NOC 0) or professional (NOC A) occupations listed on the NOC Matrix.

Employers who fit into one of these exemptions and who use a third-party recruiter are also exempt from the requirement to use a licensed recruiter, provided the recruiter is also exempt from needing a license.

Over the last few months, Labour Standards has taken steps to refine the employer registration process to make it easier for Nova Scotia employers. Employers can now apply for a single registration certificate on an annual basis, rather than applying for a new registration certificate each time they wish to recruit and/or hire a foreign national. If, however, the information upon which a registration certificate is issued changes significantly, employers are required to advise Labour Standards. A significant change includes working with a new third-party recruiter or recruiting foreign workers for employment in different skill level than originally planned.

An employer registration application may be completed and submitted online through the Access to Business portal, or by printing the application form from the Labour Standards website, completing it and submitting it by mail, fax or email. Completing an employer registration application requires some amount of projection for the coming year as employers are asked to indicate the number of foreign workers, positions and source countries from which they plan to recruit.

What this Means to You

There is interplay between Nova Scotia’s foreign worker rules and federal immigration laws. Nova Scotia employers (and their third-party recruiters) must demonstrate compliance with provincial laws governing employment and the recruitment of foreign workers before they will be issued a labour market opinion (“LMO”) from Service Canada. Similarly, Citizenship and Immigration Canada and the Canada Border Services Agency have authority to request proof of compliance with these laws when adjudicating LMO-exempt work permit applications from foreign workers. For these reasons, adherence to the employer registration and recruiter licensing regimes is of utmost importance to Nova Scotia employers who rely on Canada’s Temporary Foreign Worker Program to supplement their work force during labour shortages.