Regulations that allow temporary foreign pilots into Canada

[Gilles Hudicourt]

I've identified three methods that certain Canadian Airlines use to hire foreign pilots on a temporary contract basis. Here is how they work:

Citizenship and Immigration Canada (CIC) is the department responsible for issuing the Work Visas to those Foreigners who require one. The Regulations they abide by are the Immigration and Refugee Protection Regulations which can be read in full here:

http://laws-lois.justice.gc.ca/PDF/SOR-2002-227.pdf

The first of methods for Canadian Airlines to hire foreign pilots is to do so under the guise of Section 205 (b) of the above regulation, which we will call the Reciprocal Method. This method is 100% under the responsibility of the Minister of Immigration. (unlike for the next method, Human Resources and Skills Development Canada (HRSDC) has no role in the administration of this method).

Here is that regulation.

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that
(b) would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries;

Pilots issued a Work Permit under 205 (b) are also bound by the specifics of Section 200 of the Regulations.

200. (3) An officer shall not issue a work permit to a foreign national if

(c) the specific work that the foreign national intends to perform is likely to adversely
affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute

So if there is a Labour Dispute involving pilots in any Canadian Company, CIC is not permitted to issue Work Permits to foreign workers, if the hiring of such workers may affect the settlement of that dispute.

CIC publishes another document called "FW 1 Temporary Foreign Worker Guidelines" .



This document is used by CIC to help its officers to interpret the CIC Regulations.

Here are the guidelines that pertain to Reciprocal Workers:

Canadian interests: Reciprocal employment, C20 General guidelines R205(b)
R205(b) allows foreign workers to take up employment when reciprocal opportunities are provided for Canadian citizens to take temporary employment abroad. Exchange programs offer the opportunity of gaining international experience and allow the cultural exchange of both foreign and Canadian participants and their employers. Entry under reciprocal provisions should result in a neutral labour market impact.

Although it is not necessary that there be full reciprocity in practice within the same time frame (i.e. one for one exchange), there must at least be proof that there is or has been reciprocity, and the general order of magnitude of exchanges should be similar in order to demonstrate that, over a reasonable period of time (e.g. five years), there is a general neutral impact on the labour market. When the entities involved have no history of conducting reciprocal exchanges with Canada, it is reasonable to initially limit work permits to a small number of individuals and that subsequent work permits be issued only when reciprocity has been demonstrated.

So the guidelines call for any Canadian Airline that hires pilots under R205(b) to send the same number of Canadian pilots on contracts overseas.

The second method Canadian Airlines use to hire foreign pilots is the is to do so under the guise of Section 203 (1) of the Immigration and Refugee Protection Regulations which we will call the Labour Market Opinion (LMO) Method. This method is administered by both the Minister of Immigration (CIC) and the Minister of Human Resources and Skills Development Canada (HRSDC).

Here is what the Immigration and Refugee Protection Regulations have to say on the subject:

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if

(b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada;

Looking at the CIC FW 1 Temporary Foreign Worker Guidelines document quoted earlier, they are also very explicit on the LMO Method:

5.25. Work permits requiring a Labour Market Opinion (LMO) R203

R203 provides the authority for officers to issue work permits on the basis of an LMO from HRSDC. This Regulation provides broad authority for HRSDC to weigh several factors in assessing the impact on the Canadian labour market. Traditional factors such as wages and working conditions and the availability of Canadians or permanent residents to do the work in question, as well as whether skills and knowledge transfer would result from confirming the foreign worker and whether the work is likely to create other jobs for the benefit of Canadians or permanent residents.

Also important is the fact that HRSDC can provide an LMO regarding whether the issuance of a work permit to a foreign national will have either a neutral or positive effect. In certain situations, this allows the HRSDC officer to confirm unpaid employment.

From HRSDC's Website:

http://www.hrsdc.gc.ca/eng/workplaceski ... _tfw.shtml

What is the role of Human Resources and Skills Development Canada/Service Canada?
An employer who wants to hire a foreign worker must first apply to Service Canada for a “Labour Market Opinion.” This opinion assesses what impact the worker would have on Canada’s labour market or, in other words, how the offer of employment will affect Canadian jobs.
As part of this “Labour Market Opinion,” Service Canada works case by case to ensure the employer offers prevailing wage rates, acceptable working conditions and that the entry of the foreign worker will have a neutral or positive effect on the Canadian labour market. The employer is also expected to have made comprehensive efforts to try to fill the vacant position with Canadian workers or permanent residents. If these conditions are met, the employer receives a letter indicating that the Labour Market Opinion is positive.

Whether the foreign pilot who is issued a temporary work visa comes to Canada under the reciprocal scheme agreement or under the LMO scheme, he/she must, in order to work at the controls of a Canadian Registered Aircraft under a Canadian Certificate, obtain from our Minister of Transport, a Foreign Licence Validation, which our Minister seems very willing to provide to most applicants.

Such a validation must be provided under the Canadian Aviation Regulations, specifically CARS 421.07,Validation of Foreign Licences. The full regulations can be consulted here:

http://www.tc.gc.ca/eng/civilaviation/r ... s/menu.htm

421.07 Validation of Foreign Licences
(2) Purposes For Which Foreign Licence Validation Certificates May Be Issued
(a) for the holder to undergo a flight test;
(b) for private recreational flying;
(c) for ferry of an aircraft registered in Canada to or from a foreign country;
(d) for the holder to give type rating training on an aircraft registered in Canada to the registered owner, or to Canadian flight crew employed by the registered owner;
(e) for the holder to receive training in a Canadian registered aircraft;
(f) for operation of aircraft registered in a foreign state under the operating certificate of a Canadian carrier provided that the privileges are limited to the type of aircraft being operated;
(g) for operation of Canadian aircraft on Canadian commercial air services in urgent circumstances; such as fire suppression operations, emergency agricultural and forestry aerial application, airlift in relief of domestic natural disasters, and search and rescue operations;
(h) for commercial air services operated entirely within a foreign country where pilots holding a licence from that country may have their licence validated for operation of Canadian registered aircraft in that country;
(i) for the operation of aircraft registered in Canada on lease to foreign carriers;
(j) for reasons other than those mentioned above where approval may be given if, in the opinion of the Minister, it is in the public interest and not likely to affect aviation safety.

Since the foreign pilots flying Canadian Registered Aircraft cannot be issued their licence validations under 721.07 (2) (a), (b), (c), (d), (e), (f), (g), (h), or (i), it leaves only (j).

So we have a Minister of Transport who thinks that it is in the PUBLIC INTEREST for Transport Canada to provide Foreign Licence Validations to hundreds of foreign pilots.

The third method Canadian Airlines use to hire foreign pilots is by damp or wet leasing foreign aircraft which brings into play a fourth Government of Canada entity, the Canadian Transportation Agency (CTA), which is all too willing to accommodate foreign carriers and foreign pilots at the expense of Canadian Airlines and Canadian pilots.

This agency is governed by the Air Transportation Regulations. They can be consulted here:

http://laws-lois.justice.gc.ca/eng/regu ... lText.html

This is the relevant part:

PROVISION OF AIRCRAFT WITH FLIGHT CREW
• 8.2 (1) For the purposes of section 60 of the Act and subject to section 8.3, approval of the Agency is required before a person may provide all or part of an aircraft, with a flight crew, to a licensee for the purpose of providing an air service pursuant to the licensee’s licence and before a licensee may provide an air service using all or part of an aircraft, with flight crew, provided by another person.
• (2) The person who provides an aircraft to a licensee and the licensee shall apply to the Agency for an approval referred to in subsection (1) at least 45 days before the first planned flight.
• (3) The application shall include the following:
o (a) in respect of the proposed air service, evidence that the appropriate licence authority, charter permit and Canadian aviation document and the liability insurance coverage referred to in subsection (4) and, where applicable, subsection (5) are in effect;
o (b) the name of the licensee;
o (c) if applicable, the name of the charterer or charterers and the charter program permit or authorization number;
o (d) the name of the person providing the aircraft with flight crew;
o (e) the aircraft type to be provided;
o (f) the maximum number of seats and the cargo capacity of the aircraft to be provided and, where applicable, the maximum number of seats and the cargo capacity to be provided for use by the licensee;
o (g) the points to be served;
o (h) the frequency of service;
o (i) the period covered by the proposed air service; and
o (j) an explanation of why the use by the licensee of all or part of an aircraft with a flight crew provided by another person is necessary

This means that if a Canadian Air Carrier wants to wet lease a Foreign Aircraft and crew to do flights under the Canadian Airline's CTA permit, it must first ask permission to the CTA. Although the CTA requires on these applications an explanation as to why a Canadian Airline would need to resort to renting foreign aircraft operated by foreign crews, the CTA does not seem to give the applicants too much trouble before approving the request, regardless of the impact that this practice may have on the Canadian Airline Industry and its workforce. The sad part is that I have not been unable to find any legislation that would prevent a Canadian Airline to just wet lease most of its fleet from overseas and have most of its aircraft flown by foreigners. As far as I know, the only thing that prevents Canadian Airlines from Wet Leasing whole fleets of aircraft from, say India, to fly Internationally from Canada, is the Collective Agreements different airlines signed with their pilot unions. There is no Canadian Legislation I am aware of that prevents it. Not within the CTA anyway.

Because the Foreign pilots who come to Canada to work on wet leased aircraft fly their own aircraft, registered in their own countries and operated under their own certificates, they do not need a Foreign Workers Visa from CIC, nor do they need to have their pilot's licences Validated by Transport Canada.

Immigration and Refugee Protection Regulations
186. A foreign national may work in Canada without a work permit
(s) as a member of a crew who is employed by a foreign company aboard a means of transportation that
(i) is foreign-owned and not registered in Canada, and
(ii) is engaged primarily in international transportation;

For such Wet Leased Aircraft, they operate solely under the Authority given to them by the Canadian Transportation Authority. This is why it is possible for a Foreign Pilot who failed a Transport Canada Pilot Proficiency Check (PPC) while attempting to come to fly in Canada with a Foreign Worker Permit, can come right back fly in Canada as the pilot of a Wet Leased Contract, without having to bother any further with Transport Canada check rides. At that point he is solely under the supervision of his own country's Minister of Transport.

Comments anyone ?

[square]

Well it's certainly bullshit to say that we need foreign pilots for anything, and I've always wondered why we're giving them jobs in the industry that is probably the highest-supplied with applicants than any other in the country. I fly with foreign pilots on a regular basis that are landed immigrants so I guess that is different, but bringing in guys to do seasonal summer flying because they have a type rating on a jet is just an abuse of the regulations. There's thousands of guys that are qualified to fly at least FO at Transat and Sunwing who would kill for the job, but there's no listing to apply for because Europeans are getting all the calls. Do they even pay us any tax?

[.......]

There's thousands of guys that are qualified to fly at least FO at Transat and Sunwing who would kill for the job, but there's no listing to apply for because Europeans are getting all the calls. Do they even pay us any tax?

Air Transat does not hire temporary foreign workers.

[Gilles Hudicourt]

It is also printed here on HRDSC's website:

http://www.hrsdc.gc.ca/eng/workplaceski ... kers.shtml

Before confirming a job offer, Human Resources and Skills Development Canada (HRSDC)/Service Canada considers whether :

The job offer is genuine;
The wages and working conditions are comparable to those offered to Canadians working in the occupation;
Employers conducted reasonable efforts to hire or train Canadians for the job;
The foreign worker is filling a labour shortage;
The employment of the foreign worker will directly create new job opportunities or help retain jobs for Canadians;
The foreign worker will transfer new skills and knowledge to Canadians; and
The hiring of the foreign worker will not affect a labour disputes or the employment of any Canadian worker involved in such a dispute.

Did SunWing and Canjet conduct reasonable efforts to hire or train Canadians for the job?