Chapter Seven - Labour Mobility - Canadian Free Trade Agreement

Article 700: Purpose

The purpose of this Chapter is to eliminate or reduce measures adopted or maintained by the Parties that restrict or impair labour mobility within Canada and, in particular, to enable any worker certified for an occupation by a regulatory authority of one Party to be recognized as qualified for that occupation by all other Parties.

Article 701: Scope and Coverage

This Chapter applies to any measure adopted or maintained by a Party relating to:
1. residency requirements for workers as a condition of access to employment opportunities or as a condition of certification relating to a worker’s occupation;
2. certification requirements, other than residency requirements, for workers in order to practice an occupation or use a particular occupational title; and
3. occupational standards.
This Chapter does not apply to:
1. social policy measures including labour standards and codes, minimum wages, employment insurance qualification periods, and social assistance; and
2. Quebec’s, Nunavut’s, and the Northwest Territories’ measures pertaining to their official language requirements.

Article 702: Extent of Obligations

For the purposes of Article 103(d) (Extent of Obligations), each Party shall, through appropriate measures, ensure compliance with this Chapter by non-governmental bodies that exercise authority delegated by law.
Each Party shall, through appropriate measures, seek compliance with this Chapter by non-governmental bodies other than those that exercise authority delegated by law.

Article 703: Relationship to Other Agreements

If there is an inconsistency in a particular case between a provision of this Chapter and a provision of any other agreement between two or more Parties respecting matters covered by this Chapter, the agreement that is more conducive to labour mobility in that particular case prevails to the extent of the inconsistency. For greater certainty, any such agreement may prevail only as between the Parties that are party to that agreement.

Article 704: Residency Requirements

Subject to Article 707, a Party shall not require a worker of a Party to be resident in its territory as a condition of:
1. eligibility for employment; or
2. certification relating to the worker’s occupation.
With respect to the Government of Canada, paragraph 1(a) means that, subject to Article 707, it shall not require a worker of a Party to be a resident of a particular province or territory as a condition of eligibility to apply, in an external appointment or hiring process, for appointment or hiring to a position or job in:
1. federal public service departments, departmental corporations, Crown corporations, separate agencies, and other portions of the public administration, that are listed in Schedules I to VI of the Financial Administration Act (Canada), as amended; and
2. other Crown corporations, as defined in the Financial Administration Act (Canada), as amended, that are not covered under paragraph (a).

Article 705: Certification of Workers

Subject to paragraphs 2, 4, and 7, and Article 707, any worker certified for an occupation by a regulatory authority of a Party shall, upon application, be certified for that occupation by each other Party that regulates that occupation without any requirement for any material additional training, experience, examinations, or assessments as part of that certification procedure. For greater certainty, “occupation” includes a skilled trade.
Subject to paragraphs 3, 4, and 5, and Article 707, a regulatory authority of a Party may, as a condition of certification of any worker referred to in paragraph 1, impose on the worker only requirements listed in this paragraph. A requirement may be imposed by a regulatory authority of a Party only if it is necessary as part of the certification process.
1. administrative information and fees required to process certification of the worker, including:
  1. the worker’s name and contact information, as well as government-issued proof of identity with photograph;
  2. application or processing fees;
  3. consent that the worker’s information may be exchanged with a regulatory authority of another Party; and
  4. a declaration that the information provided is true and accurate.
2. proof of certification from the regulatory authority in each territory of the Parties in which the worker is currently certified;
3. evidence of good standing from the regulatory authority in each territory of the Parties in which the worker is currently certified;
  information on the practice limitations, restrictions, or conditions imposed by the regulatory authority in each territory of the Parties in which the worker is currently certified;
4. proof of insurance, malpractice coverage, or similar protection, or financial security, such as a bond;
5. evidence of good character, including police record checks and information from the regulatory authority in each territory of the Parties in which the worker is certified or has been certified in the past on ongoing or completed complaints, investigations, disciplinary proceedings, or criminal proceedings;
6. demonstration of jurisdiction-specific knowledge applicable to the practice of a regulated occupation in the territory of the Party; and
7. additional requirements approved by the Minister representing the Party at the Forum of Labour Market Ministers (“Forum”).
Requirements in paragraph 2 may be imposed provided that:
1. the requirements do not entail material additional training, experience, examinations, or assessments; and
2. if a Party approves an additional requirement pursuant to paragraph 2(h), it shall give notice in writing to the Forum.
Subject to paragraph 5, nothing in paragraphs 1, 2, or 3 limits the ability of a regulatory authority of a Party to:
1. refuse to certify a worker or impose terms, conditions, or restrictions on the worker’s ability to practice if such action is considered necessary to protect the public interest as a result of complaints or disciplinary or criminal proceedings in any jurisdiction relating to the competency, conduct, or character of that worker;
2. impose additional training, experience, examinations, or assessments as a condition of certification if the worker has not practiced the occupation within a specified period of time;
3. notwithstanding Article 908 (Language), require the worker to demonstrate proficiency in either English or French as a condition of certification if no equivalent language proficiency requirement was imposed on, and satisfied by, the worker as a condition of the worker’s certification in a jurisdiction in which the worker is certified; or
4. assess the equivalency of a practice limitation, restriction, or condition imposed on a worker in each jurisdiction in which the worker is certified to any practice limitation, restriction, or condition that may be applied by the regulatory authority to a worker in its territory, and apply an equivalent practice limitation, restriction, or condition to the worker’s certification, or, if the regulatory authority has no provision for applying an equivalent limited, restricted, or conditional certification, refuse to certify the worker.
Requirements in paragraph 2 and measures in paragraph 4 may be imposed provided that:
1. subject to paragraph 6(b), any such requirement or measure is the same as, or substantially similar to, but no more onerous than, that imposed by the regulatory authority on its own workers; and
2. the requirement or measure does not create a disguised restriction on labour mobility.
Subject to Article 707, each Party shall ensure that any measure that it adopts or maintains relating to certification of workers from any other Party:
1. is published on the website of the relevant regulatory authority or on a website of the Party readily accessible to workers who apply or intend to apply for certification under this Chapter. This publication shall at least include:
  1. the process for a worker to apply for certification and any internal review or appeal processes;
  2. the requirements for certification pursuant to paragraph 2 and pursuant to measures referred to in paragraph 4;
  3. the service standard of 30 days or less pursuant to paragraph 8;
  4. all fees related to certification; and
  5. any measure adopted or maintained pursuant to Article 707 and any actions that a worker may be required to take relating to that measure; and
2. except for actual cost differentials, does not impose fees or other costs that are more burdensome than those imposed on its own workers.
If a worker has been certified for an occupation by a regulatory authority of a Party, nothing in this Article prevents a regulatory authority of any other Party from permitting the worker to practice that occupation in its territory without further certification.
Each Party shall ensure that its regulatory authorities make a certification decision and communicate it to the worker expeditiously and within 30 days following receipt of a complete application, pursuant to paragraphs 2, 3, 4, and 5.”

Article 707: Legitimate Objectives for Labour Mobility

If it is established that a measure falling within the scope and coverage of this Chapter is inconsistent with Article 201 (Non-Discrimination), Article 704, or Articles 705.1, 705.2, or 705.6, that measure is permissible under this Chapter provided that:
1. the purpose of the measure is to achieve a legitimate objective for labour mobility;
2. the measure is not more restrictive to labour mobility than necessary to achieve that legitimate objective for labour mobility; and
3. the measure does not create a disguised restriction to labour mobility.
For greater certainty, for purposes of the application of paragraph 1(b) to Articles 705.1, 705.2, or 705.6, a mere difference between the certification requirements of a Party related to academic credentials, education, training, experience, examination, or assessment methods and those of any other Party is not, by itself, sufficient to justify the imposition of additional education, training, experience, examination, or assessment requirements as necessary to achieve a legitimate objective for labour mobility. In the case of a difference related to academic credentials, education, training, or experience, the Party seeking to impose an additional requirement must be able to demonstrate that any such difference results in an actual material deficiency in skill, area of knowledge, or ability. As an example, the imposition of a requirement for additional education, training, or experience may be justified under paragraph 1(b) if a Party can demonstrate that:
1. there is a material difference between the scope of practice of the occupation for which the worker is seeking to be certified in its territory and the scope of practice of the occupation for which the worker has been certified by the regulatory authority of another Party; and
2. as a result of that difference, the worker lacks a critical skill, area of knowledge, or ability required to perform the scope of practice of the occupation for which the worker seeks to be certified.
If a Party adopts or maintains a measure under paragraph 1, it shall give notice in writing to the Forum (“Forum”) of the measure, in the form, and containing the information, considered appropriate by the Forum. The notice shall indicate the Party’s justification for the measure and the anticipated duration of the measure.
The Forum shall develop and implement a framework for the Parties to establish a list of specific measures taken under paragraph 1 for which notice has been given to the Forum under paragraph 3. This list will be published online by the Forum.

Article 708: Implementation, Administration, and Assessment

The Forum shall:
1. promote the implementation of and ongoing adherence to this Chapter, and develop a work plan or plans related to the objectives of this Chapter;
2. develop and implement the framework for the implementation of Article 706;
3. develop the form and content required for notices under Articles 705.3(b) and 707.3;
4. develop and implement the framework for the posting of measures under Article 707.4;
5. annually produce a report on the operation of this Chapter and submit that report to the Committee; and
6. conduct a comprehensive review of this Chapter’s provisions every five years and produce a report outlining key findings and recommendations for action.
The annual report referred to in paragraph 1(e) shall include:
1. an assessment of the effectiveness of this Chapter, including an assessment of whether there have been any unintended adverse consequences, together with appropriate recommendations to address concerns identified in the assessment, including recommended amendments to this Chapter;
2. a list of measures for which notice has been given under Article 707.3, together with a description of their respective justification and their anticipated duration; and
3. a summary of any disputes that have arisen between the Parties during the year concerning the interpretation or application of this Chapter, and the results of any consultations or other dispute resolution procedures resorted to by the Parties concerned to resolve the disputes.
The comprehensive review of this Chapter’s provisions referred to in paragraph 1(f) shall:
1. identify any remaining impediments to labour mobility and assess potential gaps in this Chapter, as informed by stakeholder consultations, prevailing economic conditions, and the evolving legislative and policy landscape; and
2. provide recommendations and proposed measures for the Forum to address any impediments and gaps identified.
The Forum may establish any committees that it considers necessary to assist it in the implementation of any work plan. The committees may be composed of representatives of the Parties and, if appropriate, of relevant regulatory authorities, other non-governmental bodies, and interest groups.
Each Party shall annually collect data and publicly report on key labour mobility metrics, with data provided from its respective regulatory authorities. Key metrics shall include:
1. the number of complete applications received for certification from any worker referred to in Article 705.1, disaggregated by occupation;
2. the average processing times for applications for certification from any worker referred to in Article 705.1, disaggregated by occupation;
3. the outcomes of applications for certification from any worker referred to in Article 705.1, disaggregated by occupation; and
4. the number of first-time certification applications, excluding applications for certification from any worker referred to in Article 705.1 and internationally trained applicants, disaggregated by occupation; and each Party shall ensure that the data is suppressed or compiled in a format that allows for reporting while protecting privacy as required by applicable privacy legislation.
Article 708.5 does not apply to the Territories until two years after the date of entry into force of the Fourth Protocol of Amendment. The Territories shall endeavour to fulfil obligations pursuant to the principles set out in Article 708.5 during that two-year period.

Overview

Chapter Seven – Labour Mobility