Director - Temporary Resident Program Delivery Division
Citizenship and Immigration Canada
365 Laurier Avenue West
Ottawa, Ontario K1A 1L1
Montreal, Aug 18, 2012
Subject: Foreign National pilots working in Canada for Canadian Airlines
Dear Ms Usher,
My name is Gilles Hudicourt, an airline pilot, employed for the past 14 years at Air Transat where I work as pilot, most specifically as an Airbus 330 captain. On June 13th, my colleague Etienne Masse and I drove from Montreal to Ottawa to hand-deliver a petition to the Minister of Citizenship Immigration, the honourable Jason Kenney. We created this petition to protest against the abusive use by certain airlines in Canada to hire Foreign Nationals as pilots to work in Canada on short term contracts during their high season, in winter. I will explain the issue in detail below.
We ran this On-Line petition for only 2 weeks, from May 1st to May 15th 2012. During this short period, we were able to obtain just under 2,500 signatures, representing about 25% of all Airline Pilots in Canada, who number 11,000, 1,000 of which work overseas. Had we left it on-line for a longer period, we would certainly have been able to gather the support of over 75% of the pilots for we later received many messages from pilots complaining that by the time they had learned about the petition, it was too late for them to sign it.
The signatories of this petition are from all major Airlines in Canada, including from those two Airlines which are using these programs to hire foreign pilots. The Minister has not replied to our Petition nor has he acknowledged its receipt.
Canadian Airline pilots are determined to stop this practice and we will denounce it any way we can (Note: throughout this letter, "Canadian" stands for Canadian citizens or Canadian legal permanent residents)
To make matters worse, this week, Air Transat, my employer, announced that it would be laying off around 50 pilots as of November of this year. Other companies may be laying off pilots as well. We can hardly conceive that foreign pilots would be let into Canada to work as pilots while qualified and experienced Canadian pilots who could well fly the aircraft that will be handed to foreigners, are collecting un-employment insurance. I don't think the general public will like to read about that either.
The context:
Some airlines in Canada are specifically geared to cater to flying Canadian tourists to southern destinations such a Mexico, Cuba and the Dominican Republic. They are Sunwing and Canjet (the latter in under contract with Air Transat). Because Canadians mainly fly to such destinations during the winter, these airlines have a peak season, which runs from mid-December to mid-May, a period of 6 months. In the summer, Canadian tourists mostly fly to Europe. The aircraft that these two airlines use to cater to winter tourists, the Boeing 737NG, does not have the range or payload to be used on Trans-Oceanic flights, to Europe for example. Because Sunwing and Canjet have seasonal routes, they must have “accordion fleets”, meaning they operate a smaller core fleet of aircraft year-round, that they increase during winters’ peak season. They do this by leasing extra aircraft from foreign airlines. When they augment their fleet, they need more pilots.
It so happens that in Europe, the seasonal flying for this category of aircraft is opposite to Canada’s. During winter, many European B-737NGs and their pilots are either underutilized or idle, whereas in Canada, it’s in the summer that such aircraft and their pilots are in that same situation. So European and Canadian airlines can swap aircraft and pilots during each other's high season. This is the theory, anyway...
How it's done
Canadian airlines use two methods to increase their fleets and four methods to increase their pool of pilots. To increase the number of aircraft during their peak season, Canadian airlines either dry lease or wet-lease aircraft.
Dry leasing means that the aircraft is leased on its own. It is then registered in Canada and added to the company's core fleet. When that is done, the aircraft becomes legally Canadian and must be operated according the airlines' Transport Canada issued Operating Certificate (OC). It will be crewed by people that are legally allowed to work in Canada. It will be maintained according to the Airline's Transport Canada issued OC and will be insured by the Canadian Airline.
Wet Leasing means leasing an aircraft from another airline, while that aircraft remains under the control and OC that other airline. If the other airline is Foreign, the aircraft remains registered overseas, the crews, the maintenance and the technical and regulatory oversight are all foreign. Such crews do not require a work permit to work in Canada for they remain at the employ of the foreign airline. Wet-Leases are approved by the Canadian Transportation Agency (CTA).
As far as ways to increase the number of crews, there are four options available to Canadian airlines. The first, which is our preferred method is to hire temporary Canadian pilots for the season.
The second method, is to hire them under R205(b) of the Immigration and Refugee Protection Regulations (reciprocity). Canadian pilots would not object to this method if it was administered correctly by CIC, which it is not, as I will explain below.
The third method, is to hire them under R203(1) of the Immigration and Refugee Protection Regulation, the method requiring an LMO. We are adamantly against this method and are determined to oppose its use and application in Canada in most but extreme cases. There is no shortage of qualified pilots and Canada. In fact, over 1000 Canadian airline pilots were forced to seek employment in the Middle East and Asia for lack of work in their own country. In addition, many highly experienced and highly qualified Canadian pilots are either under-employed or un-employed and would greatly benefit by getting hired in the posts being given out to Foreign National Pilots under the LMOs.
The last method, is the Wet-Leases I mentioned earlier, where a Foreign or Domestic aircraft is leased with crew under a CTA authorization. In the cases we are concerned with, both aircraft and crew tend to be Foreign.
The CIC reciprocal programme.
Many years ago, a few airlines in Canada such as Canada 3000 and Skyservice (both now defunct) began using Temporary Foreign Workers Programs under Regulation 205(b) of the Immigration and Refugee Protection Regulations in order to increase their pool of pilots in the winter and reduce it in the summer. This regulation allows Canadian employers to hire foreign nationals to work on temporary work permits in Canada if that allows for Canadians to go work overseas in exchange. It must be approved under a reciprocal agreement that must be submitted to CIC by the Canadian employer. The idea is for the airlines in Canada to hire Foreign pilots on six months contracts in winter, to increase their pilot pool during their high season, and in exchange have some Foreign Airlines hire an equal number of Canadian pilots in the summer, when demand for them in Canada is low. Skyservice and Canada 3000 did this successfully for several years and Sunwing continued the practice when it was founded in 2005. What then occurred, is that Sunwing began to hire much more foreign pilots from Europe in the winter than it sent Canadian pilots to Europe in the summer, in violation of CIC regulations and in violation of the reciprocal agreement they had submitted to CIC in order to gain permission to join this programme. It seems that no one at CIC verified or controlled how the programme was implemented or respected by Sunwing once it got implemented.
This is the text of the Immigration and Refugee Protection Regulations for R205(b):
And this is the text of the CIC C20 General Guidelines for implementing R205(b):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.
This past winter, we were informed that Sunwing Airlines, which only had 150 Canadian pilots on its payroll, had approximately 200 foreign pilots working for them in Canada. Four were provided with temporary work permits under R203(1), about 15 came to work for Sunwing without Work Permits for they came as the crew of a single Wet-Leased Czech registered B737NG under a CTA permit, and finally, about 150 were allowed into Canada under R205(b), the reciprocal program.Canadian interests: Reciprocal employment, General guidelines R205(b), C20
R205(b) allows foreign workers to take up employment in Canada when Canadians have similar reciprocal opportunities abroad.
Entry under reciprocal provisions should result in a neutral labour market impact.
There are formally-recognized reciprocal programs such as International Experience Canada program (See section 5.34).
However this provision also allows for admission of workers in other cases where reciprocity is demonstrated by the Canadian employer (or specific program administrator). Academic institutions may initiate exchanges under C20 as long as they are reciprocal, and licensing and medical requirements (if applicable) are met.
The onus is on the institutions and/or applicants to demonstrate that reciprocity exists.
This could be indicated in the exchange agreement between the Canadian and foreign parties, a letter from the receiving Canadian institution, the work contract (if it provides evidence of reciprocity) and, if necessary, the officer can request documents and/or data to enable verification of reciprocal employment volumes. Bona fide evidence of reciprocity will allow the officer to issue a work permit.
TIP: A useful starting point can be a company’s HR Plan or its “Global Mobility Policy “ within their HR directives, which may provide evidence that an exchange program is in place and, depending on the balance of bilateral flow, may indicate that it is reciprocal in practice.
It is not necessary that there be exact reciprocity (i.e. one for one exchange), but the general order of magnitude of exchanges should be reasonably similar on an annual basis. In assessing reciprocity, one would consider the relative number and percentage.
For example, for exchanges involving larger numbers of foreign nationals (e.g. greater than 25), officers could require a higher minimum proportion of Canadians employed abroad to foreign nationals employed in Canada (e.g. at least 75%) than for smaller exchanges.
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.
When organizations have a demonstrated history of reciprocal exchanges, they may be permitted some flexibility in the flow of exchange on an annual basis, as long as they are able to demonstrate that the exchanges are similar over a reasonable period of time (e.g.five years), there is a general neutral impact on the labour market.
In assessing reciprocity, officers can consider not only the number of individuals working in Canada and abroad, but also employment duration and job level.
If evidence of reciprocity is not presented to the satisfaction of the officer, the work permit may be refused, or the applicant may be notified that an LMO must be obtained for further consideration of a work permit.
This summer, Sunwing Wet-Leased two Boeing 767s from Portuguese EuroAtlantic Airlines. There are probably 30 Portuguese pilots working these two aircraft for Sunwing. So in 2012, Sunwing hired or used around 200 foreign pilots on short term contracts.
It's extremely odd that such a high number of foreign pilots be granted Canadian Work Permits under R205(b) since the number of Canadian pilots Sunwing sent to Europe to fly for European carriers in the summer of 2011 was 12 (twelve). This summer (2012), no Sunwing Canadian pilots went overseas to work for Foreign Airlines. Sunwing did send about 50 pilots to Europe this past summer, but because they went to Europe to fly Canadian Registered Sunwing aircraft, these pilots remained at Sunwing's employ and did not required any Foreign Work permits.
So in summary, Sunwing sent ZERO pilots overseas if you only count those Canadian Sunwing Pilots who went to work for a Foreign Airline, or 50 if you decide to count those Sunwing pilots that flew Sunwing's Wet-Leased aircraft overseas.
They are clearly abusing the system. This is clearly not the reciprocity that the CIC regulations and guidelines had envisioned. A few weeks ago, I made an ATIP request to CIC to ask them how many Sunwing Airlines pilots had gone to work in Europe every year since 2005 on temporary European work visas, under the Reciprocal agreements that Sunwing has on file with CIC according to R205(b). The reply was astonishing: the Access to Information Coordinator at CIC wrote to me that the information I was requesting was not available at CIC (see attachment). How can CIC issue to foreign pilots a fixed number of work permits in order to achieve a “neutral labour impact” within a reciprocity programme if it has no idea how many Canadian pilots obtain similar work permits from the Europeans under the agreement? It appears as though CIC was simply relying on what they were told by Sunwing Airlines and failed to look further into the matter. They simply were issued as many work permits for Foreign National pilots as they asked for.
We are not asking for your office to draft any new regulations, nor are we asking that you suggest changes to existing CIC regulations. What we are asking for is that existing regulations and guidelines, as reproduced above, be applied to the letter by those airlines using the CIC reciprocal agreement scheme, that is that any work permits issued by CIC to foreign pilots under R205(b) of Immigration and Refugee Protection Regulations, have a neutral labour impact in Canada, meaning that the number of Foreigners brought into Canada under the programme be roughly equal to the number of Canadians sent to work overseas for foreign airlines under temporary work permits. At the present time and for the past several years, this has clearly not been the case. This has to stop right away.
The Labour Market Opinion scheme
There is another CIC programme that some Canadian airlines use to hire Foreign National pilots, under R203(1) of the Immigration and Refugee Protection Regulation. This is scheme where an airline will publish some advertisements for temporary pilots positions, not get any applications, which is meant to demonstrate a labour shortage for pilots in Canada, and use that as a justification to apply for a Labour Market Opinion (LMO) from Human Resources and Skill Development Canada (HRSDC), authorising them to hire Foreign pilots instead of Canadians pilots.
We are categorically against the use of this Scheme to hire any Foreign Nationals as temporary workers to work in Canada as pilots. There is no shortage of qualified pilots in Canada and the ruses which some airlines use to obtain an LMO from HRSDC in order to secure work permits for foreign pilots is nothing short of dishonest.
Here are the relevant Immigration and Refugee Protection Regulations clauses for this category of temporary foreign worker:
It takes years to become a licensed airline pilot. However, because large commercial aircraft are such complex and unique machines, in order to fly one, pilots must take a short course on how to fly each specific type of aircraft. This course typically takes about 2 months and only has to be done once. It is called a Type-rating. Once a Type-Rating course is completed, the Aircraft type for which the pilot has qualified is printed on his licence. To take myself as an example, I have an Airline Transport Pilot’s licence issued by Transport Canada which allows me to fly airliners in general, but I also have an Airbus 330 Type-Rating which specifically allows me to fly the Airbus 330. During my 14 years at Air Transat, I was first Type-Rated on the Boeing 757, then on the Airbus 310, and 18 months ago when our company acquired more Airbus 330s, Air Transat provided me with an Airbus 330 Type-Rating. It takes 2 months to be cross-trained from one type to another. These three aircraft types are printed on my Transport Canada pilot’s licence. Since I have never flown the Boeing 737NG, I do not have a Type-Rating for that aircraft. However, I can be qualified to fly one, I have the experience to fly one and all it would take for me to fly one is to take a short two month course. I would then become be fully qualified to fly one, even as direct entry Pilot-in-Command. The normal practice in the industry is for the Type Rating course to be provided by the employer, at employer expense, for the type of aircraft that they need you to fly.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;
(3) An opinion provided by the Department of Human Resources and Skills Development with respect to the matters referred to in paragraph (1)(b) shall be based on the following factors:
• (a) whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
• (b) whether the employment of the foreign national is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
• (c) whether the employment of the foreign national is likely to fill a labour shortage;
• (d) whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;
• (e) whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
• (f) whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.
What Sunwing and Canjet have been doing, is advertising for short seasonal pilot positions from December to May, but instead of accepting applications from any qualified and experienced Canadian Airline pilot such as myself, they advertise that they only accept applications from people who are already Type-rated on the Boeing 737NG. Since the people who already Type-Rated on the B-737NG in Canada are already employed by other Airlines, no-one applies for the advertised positions. They use this as an excuse to request an LMO from HRSDC. There are qualified and experienced pilots in Canada who could easily be trained to fly the B-737NG, such as pilots who used to fly for Canada 3000 or Skyservice, who are now either un-employed, under-employed, or who had to go find work overseas and would like to come back to Canada. Instead of offering the positions to these people, we hand them out to Foreign Nationals who pay zero taxes in Canada and who send their paychecks to their families in Europe. There are also many pilots in Canada who have seasonal summer jobs, such as water-bomber pilots, who only fly in the summer. These pilots are experienced and easily could be Type-rated on the Boeing 737NG that they could fly for these airlines in the winter, and go back to their water-bombers in the summer, instead of being on UI in the winter, which is the case of many of them. Would it not make sense to give the job a Canadian pilot and get him off of UI, rather than give it to a foreign national?
There are several reasons that these airlines resort to foreign pilots rather than hire Canadians. One, they save money. A type-rating cost $20,000 to an airline. If you need to train 40 pilots at once because of rapid expansion, it costs $800,000, a hefty investment I agree, but one that all other airlines in Canada make. Those airlines that refuse to train Canadian pilots seek to gain an unfair commercial advantage over their competition, at the expense of Canadian workers. Training pilots is part of the cost of doing business in the airline industry and most airlines in Canada do business with Montreal-based CAE for simulator training, the largest aircraft simulator company in the world. The Foreign pilots train overseas with foreign companies. Air Canada, Westjet, Air Transat, Porter, Jazz, First Air, Air Inuit and all other major airlines in Canada mostly train their pilots in Canada at company expense. Sunwing and Canjet may save money by not hiring Canadians, but does Canada save money by allowing such a practice?
Does it make sense for the Canadian State to pay UI to furloughed pilots in the winter while another branch of the Canadian Government provides LMOs to certain airlines authorising them to import Foreign Labour in order to save them money? When Government of Canada agencies condone the hiring of foreign pilots instead of hiring Canadian pilots, indirectly, they use UI funds to help these airlines gain an unfair commercial advantage over other airlines that do not make use of Foreign Labour as pilots. It makes no sense at all.
May I add that there are 5 Aviation Colleges that receive Provincial funds to train Canadian pilots. In Québec, the Government of Québec trains about 40 pilots every year at the CQFA at a cost of about $120,000 per pilot, funded by the Quebec taxpayers. But then we give out hundred of pilots jobs to foreigners instead of giving them to Canadians. There are similar cases in other provinces that fund similar colleges.
In the case of Sunwing, there is another reason they hire Foreign National pilots instead of Canadians. Sunwing is in large part owned by a German tour operator that owns over 150 aircraft in Europe, TUI. Many of TUI’s Boeing 737NGs and their pilots are idle in the winter, so TUI want its Canadian subsidiary, Sunwing, to help it reduce the cost of operation of its European subsidiaries by renting aircraft from them during the winter, and by having Sunwing contract the idle European pilots. In Europe, the pilots are not laid off by their TUI-owned European employers but are paid year round by them. The cherry on the cake for Sunwing is that these TUI pilots are already Type-rated on the Boeing 737NG and do not have to be type-rated at Sunwing’s expense. So Sunwing gladly obliges, to help TUI, its parent company and it save a lot of money when doing so, but this money is saved at the expense of unemployed Canadian pilots and at the expense of the Canadian Taxpayer. To make matters worse, Sunwing does this with the full and willing cooperation of CIC and HRSDC.
Several airlines in Canada are in dire financial straits right now my own employer, Air Transat has already announced that it will lay off up to 50 pilots in the fall of 2012. How is it going to look to Canadian taxpayers, when dozens or even hundreds of highly experienced and qualified Canadian pilots end up on UI next winter while CIC and HRSDC team-up to provide work permits to over 300 European pilots for Sunwing and Canjet? Air Transat operates Airbus 310s and 330s, no Boeing 737s. Air Canada operates a number of aircraft but no Boeing 737s. Jazz does not have any either. So none of Air Transat's, Air Canada's or Jazz's 5,000+ pilots are Type-Rated to fly the Boeing 737NG. Are Sunwing and Canjet going to tell those pilots on UI that they are not qualified and hire foreigners instead?
CIC’s and HRSDC’s regulations and guidelines state that the hiring of foreign nationals must have a positive or neutral labour impact, and that the employer must have made reasonable efforts to hire or train Canadians or permanent residents. It’s quite obvious to any reasonable person that this practice does not have a neutral labour impact in Canada since highly qualified Canadians are denied an employment opportunity in favor of foreign nationals, and it is also quite obvious to any reasonable person that the employers did NOT make reasonable and honest efforts to hire OR TRAIN Canadians or Canadian Residents for these positions before hiring foreign nationals instead. The Type-Rating that these airlines require as precondition for these positions are nothing but excuses made up by these companies to justify the hiring of foreign nationals for the reasons of saving the training expense and in the case of Sunwing, for favoring the hiring of foreign national pilots from its mother-company, TUI.
In the name of the 2,500 Canadian Airline pilots who signed our petition, I respectfully ask that CIC study the matter of Foreign National pilots as Temporary Workers in Canada and take appropriate measures to redress to subject of our complaint.
Regards,
Gilles Hudicourt
PS: this letter will be made public on the COCAP Website (http://www.cocap.ca/) and on the AvCanada public Forum (index.php
