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Victoria McDonald's Reversed Temp Foreign Workers 'No' with a Phone Call

Documents reveal a program with poor structure and oversight, say critics.

By Jeremy J. Nuttall 9 Oct 2014 | TheTyee.ca

Jeremy J. Nuttall is The Tyee's Parliament Hill reporter in Ottawa. Find his previous stories here.

This coverage of Canadian national issues is made possible because of generous financial support from our Tyee Builders.

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Applicant for temp foreign workers went from rejection to 'ASAP' after a phone conversation. Photo: Shutterstock

The owner of three McDonald's restaurants at the centre of a Temporary Foreign Worker Program controversy earlier this year was twice denied the positive assessments, called Labour Market Opinions or LMOs, needed to bring in such workers.

After a phone call one of the decisions was reversed just over two weeks later and stamped "ASAP" by government staffers and all subsequent requests were also granted.

The information was revealed in documents obtained by The Tyee through access to information legislation.

In April the three restaurants owned by Nasib Services in Victoria had their LMOs suspended and were blacklisted after allegations by staff the locations were turning away dozens of qualified Canadians and instead bringing in TFWs.

The company's LMOs are still suspended as an investigation continues.

But hundreds of pages of documents show the location was initially denied LMOs for supervisor positions paying $12.36 an hour on the basis the requirements listed in local job advertisements were too high.

In order to be granted an LMO -- now called Labour Market Impact Assessment -- a company needs to show it made efforts to find Canadians available for the position.

A foreign worker program specialist at Service Canada initially said Nasib Services didn't accomplish the task.

"The employment requirements appear to be excessive as per the National Occupational Classification," wrote William MacLean in a rejection letter to the company Jan. 27, 2012. "As part of our assessment, we need to ensure that the position requirements are consistent with the NOC and are reasonable enough to attract potential Canadians/Permanent Residents to apply for the position."

Notes related to the rejection in the documents said there were 30 applicants for the 15 positions -- 25-30 per cent of which were foreign workers -- and none of the Canadian applicants were interviewed due to lack of experience.

The notes said such work history was explained by the owner as being necessary to take on the supervisor roles.

Why no one already working at the locations was being promoted to the supervisor roles was also brought up.

"Question internal promotion of existing staff to fill positions. ER states that one or more that may be promoted have been already taken into account in regard to the numbers requested. Decision: position requirements excessive, LMO refused."

But just over two weeks later the decision was reversed.

A phone call between the applicant and MacLean was detailed in another set of notes within the documents.

"Spoke with owner/ER contact (redacted) regarding request for reconsideration of SP (redacted) ER confirmed no changes to number of FW being requested (five) at each of the three locations, no changes to job offer, wages, working conditions presented on original LMO," detailed the notes.

"ER asserts that job requirements did not include prior work experience at McDonald's, this was an asset only."

Nasib Services said it was willing to consider lower levels of experienced Canadians and that the two to three years' experience posted in the advertisements was in reference to food service, not specifically McDonald's.

The notes said a detailed summary of the applications for the position yielded 14 Canadians, with all but two discounted for not having enough experience and those two declining to be interviewed.

A table showing a deficit of 17 supervisors for the three McDonald's combined compared to the national average was also sent by Nasib Services to MacLean to make the case for the workers.

The arguments were enough to have the decision reversed without asking for the advertisements to be rewritten and reposted.

"Decision, based on information presented a reversal of original decision is warranted and LMO confirmed," said MacLean's notes. "Decision letter faxed to the ER."

In August Nasib Services asked for an extension as the LMOs for the McDonald's the company owned were about to expire and he was granted an extra two weeks to fill the jobs with TFW.

No appeal process, says department

Despite the reversal, Employment and Social Development said applicants have to apply again if denied an LMO.

"There has never been an appeal process for Labour Market Opinions, or now for Labour Market Impact Assessments," said the department in an email. "If employers want to submit new information after a negative LMIA has already been issued, they must submit a new application with the accompanying fee."

The department wouldn't comment on specific cases and would not give insight into how the LMO decisions in the case of the three McDonald's franchises were able to be reversed.

The restaurant had been using TFWs as far back as 2008, according to the documents, and was refused another request for 10 LMOs in 2011 on the basis there was not a skills shortage for food counter attendants.

Notes show the applicant for those LMOs also tried to have the decision reversed, but was denied.

"No new information provided on reconsideration therefore original decision remains," they said. "No labour shortage."

At the time of the 2011 applications the restaurant was advertising positions as food counter attendants for $10.80 an hour plus benefits.

Two years after those LMOs were denied the company was granted LMOs for the same position at $10.50 per hour with benefits.

System lacks oversight: critic

Jim Sinclair, president of the B.C. Federation of Labour, said the documents indicate major problems within the system.

"How he can pick up the phone and get [the decision] overturned just means the whole system is broken and remains broken," Sinclair said.

He said the problems all stem from the Conservative government "giving employers what they want."

Jinny Sims, federal New Democrat critic for employment and social development, also chided the federal government over the documents saying they represent a complete lack of oversight in the program.

She pointed her finger at the Liberal party, which started the program in the early 1970s, for never instituting stringent monitoring of it in the first place.

"The Conservatives have increased the oversight," Sims said. "But it's still absolutely minimal."

New information given to Sims this week following a request to the government showed there are currently 198 government staff in Canada in charge of processing the thousands of applications received each year.

The number is actually 14 fewer officers than the program had in 2008, when it had the most officers since 2000, as far back as the data showed.

The same figures showed the number of staff in charge of monitoring and investigating compliance with the TFWP was cut in half in 2011 to 2012 to 14.

It was then increased to 43 in 2014, the same year the McDonald's story broke and Minister of Employment and Social Development Jason Kenney brought in changes to the program.

The changes included new fees, a rejigging of the LMO system to the LMIA system -- for which some foreign workers are exempt -- and the government also touts stricter enforcement of program users.

The new regulations are meant to ensure Canadians have first crack at jobs and employers aren't abusing the program, the government has said.

Still, since 2000 only seven employers have been sanctioned for non-compliance and four employers are on the blacklist.  [Tyee]

Read more: Labour + Industry,

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