Canadian Airline hiring flight crews not legally allowed to work in Canada
Labour laws require Canadian companies to only hire workers that are legally allowed to work in Canada. All newly hired employees in Canada have three days to provide their Social Insurance Number (SIN) to their employer. When a person legally allowed to work in Canada is hired and does not have a SIN, the employer must ask the employer to apply for and obtain a SIN.
If an employee has a SIN that begins with a "9", it means this person is not a Canadian citizen or a permanent resident of Canada but has been issued a temporary SIN for a temporary employment. In such a case, the employer must ascertain that the person holding such a SIN is still legally allowed to work in Canada before being employed.
Now what about companies with international reach and presence like an airline? Is a Canadian airline allowed to hire a US citizen or a US permanent resident at one of its bases located in the US ? Of course it can, because in order to do business in the US, the Canadian company had to register in the US as a US company. It is the wholly owned US subsidiary of the Canadian company, which is registered in the US that hires the US employees. That company pays the US employees according to US laws, including benefits, deductions, taxes etc.
Where things are not as clear, is when it comes to airline employees such as flight crew. In certain countries, this issue is an open Pandora box that can and does get very, very messy. A few years ago, a pilot friend of mine, who was legally allowed to work in the European Union, was employed by a Swiss crewing company, which had a contract to provide pilots to TUI Belgium, to be based in France. When the COVID crisis hit, the whole scheme dissolved into thin air, and no one owned anyone anything. My friend lost his job overnight, with no recall rights, and did not even know where to ask for un-employment benefits. His check came from Switzerland where he was not legally allowed to work, and he worked in France for a Belgium company who was not his real employer. European Ryanair is famous for having all sorts of hiring schemes whose real purpose is to exploit the employees while avoiding the social and fiscal burdens normally associated with employing people. Many of Ryanair pilots are "self-employed" in a country which is neither the one where the Ryanair certificate is issued, nor the pilot's primary base of operation. It's just a scheme to exploit the crews and avoid the social and financial burdens.
Back to Canada. Can a Canadian airline hire pilots, or flight attendants who are not legally allowed to work in Canada ?
If a Canadian company does international flights between Canada and airports outside Canada, it cannot hire foreign crewmembers thank to the following clause of the Immigration and Refugee Protection Regulations?
No permit required
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;?
That law is clear: if a foreign national crew member arrives in Canada without a work permit, it can only be on a foreign owned airline not registered in Canada.
What about a Canadian Airline that does fifth freedom flights, meaning flights between two points, none of which are in Canada ? If a hypothetical Canadian Airline flies from Toronto to London and from there to Mumbai, can it hire non Canadian crews for the portion between the UK and India ? Indian crew for example (I am not claiming such hypothetical airline does, or intends to do this, just asking if its legally possible).
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Of course, under such a scheme, it would require the Indian pilots to either have a valid Transport Canada licence, or maybe the good people at Transport Canada would facilitate the scheme for the airline, by providing Foreign Licence Validation Certificates (FLVC) to the Indian pilots ?
There are protections in other means of Transport, governed by the Minister of Transport. For example, the Canada Shipping Act which governs Canadian surface vessels states:
Positions on board Canadian vessels.
88.1 Every person who is employed on board a Canadian vessel in a position in respect of which a certificate is required under this Part shall hold the certificate and comply with its terms and conditions."
88 (1) Only a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act may hold a certificate of competency that is issued under this Part.
The Aeronautics Act, however, which governs Canadian Aircraft, also under the Minister of Transport, has no such clause.
So it seems to me that a Canadian Airline operating wholly outside of Canada can legally hire non-Canadian crews to operate its aircraft. Is this acceptable ?
Will the good people at Transport Canada go along with this ?
Comments anyone ?