By Julie Lessard, partner, lawyer, BCF Business law
Québec has numerous strategic advantages in the construction sector. This is particularly true of its know-how in general, and its highly-qualified workforce operates in numerous Québec-based companies that add plus value to the various products and services they offer, allowing them to position themselves in both Canadian and international markets. However, this strength also represents one of the biggest challenges facing the industry, due to both the growing shortage of manpower resources and the many difficulties related to worker mobility for a number of professions and specialized labour force.
First of all, there are still numerous roadblocks for companies wishing to export their know-how to the United States. Although in theory a number of agreements have been negotiated with a view to allowing access to public calls for tenders in certain States, a number of barriers remain, such as work permits for employees called upon to work on both sides of the border. Even the North American Free Trade Agreement, aimed at facilitating mobility for certain workers and visitors, specifically excludes the carrying out of construction work by foreign workers on the territory of either party. Only certain professionals such as engineers, architects, industrial designers and interior designers are able to obtain certain advantages of this kind thanks to NAFTA. They may have ready access to a work permit under certain conditions. Certain provisions also allow the work of installation, repair, maintenance and supervision to be carried out, but only within the strict framework of a sales contract for goods or equipment that includes specific after-sales service arrangements. And even in this context, construction work is excluded and only supervision of such work or training of local workers is allowed.
Apart from the rare provisions in NAFTA that facilitate worker mobility in the construction sector in a very limiting way, certain programs such as the temporary worker’s program (H-2B) have been used by certain companies. However, this program is limited to situations of shortage in particular areas, which are temporary by nature, or to projects of a seasonal nature. In the majority of cases, more American than Canadian employers benefit from this program, which is difficult to apply to our companies seeking to export their know-how within the framework of specific contracts. For companies that decide to set up in business on American soil by creating a subsidiary or branch, the intra-company transfer program does allow certain executives and senior and middle managers, as well as certain employees with highly specialized knowledge to obtain work permits allowing them greater mobility. Nevertheless, the subsidiary or branch must have substantial ongoing commercial activities and must also create employment opportunities for local workers. These provisions therefore do not concern companies seeking nothing more than to export their products and services.
It is obvious then, that the barriers remain numerous and that’s without counting pressure from unions as well as questions related to the recognition or certification of workers’ skills. On this side of the border, Canada is not doing much better. For example, we might cite the Canada-Alberta pilot project aimed at facilitating the hiring of qualified foreign workers in certain professions in demand, to respond to what our government has described as one of the most serious manpower shortages in the country. Trades such as welding, carpenters, industrial mechanics and 47 others identified trades are concerned by this agreement.
However, in practice, provisions designed to facilitate hiring are not applicable to foreign workers who have not received some form of certification from the local organizations overseeing these trades. In a number of instances, these certifications require the physical presence of the workers in the country, leading to a sort of Catch-22 situation that causes all sorts of delays whilst the whole idea behind the program was to solve the manpower shortage quickly and efficiently. And again, the famous agreement of skills recognition reached between France and Québec, while facilitating the process of certification and obtaining of competency cards, provides no measure for obtaining Québec work permits for these workers. Overall, although some commendable efforts have been made to facilitate manpower mobility in the construction field, numerous obstacles remain that will only be solved by concerted, constructive efforts.