Update to these guidelines
The Department of Foreign Affairs and International Trade (Office of Protocol) presents its compliments to Their Excellencies the Heads of Diplomatic Missions and Chargés d’affaires, a.i., and Heads of International Organizations accredited to Canada and Other Offices, and has the honour to provide herewith its revised policy regarding foreign domestic servants accompanying members of diplomatic missions, consular posts and international organizations and other offices in Canada. This Note supersedes all previous Circular Notes concerning the employment of foreign domestic servants.
The Department would like to emphasize that it is the joint responsibility of the Head of Mission, Organization or Office, and individual employers to ensure compliance with the provisions of this Circular Note and the minimum provincial labour standards applicable to the private servants’ working conditions. It would therefore be greatly appreciated if the contents of this note could be quickly brought to the attention of all personnel on assignment in Canada and to the attention of appropriate authorities at the Ministries of Foreign Affairs of sending states.
With respect to the payroll process (see Part I, s. 12), the Department requests that all payments to the employee be made by cheque or bank transfer. A cash payment is no longer considered an acceptable method of payment. This henceforth applies to all new contracts. Further, it would not be appropriate for prospective employers to sign a contract when they are financially unable to pay the wages specified in the employment contract.
Nothing in this policy should be construed as preventing Canada from applying the provisions of this policy restrictively on a basis of reciprocity or other circumstances within the context of the bilateral relation.
The Department wishes to clarify that this Note does not apply to members of the service staff, the accreditation of whom continues to be governed in accordance with Circular Note XDC-0531 of April 27, 2005.
The Department of Foreign Affairs and International Trade (Office of Protocol) avails itself of this opportunity to renew to Their Excellencies the Heads of Diplomatic Missions and Chargés d’affaires, a.i., and Heads of International Organizations accredited to Canada and Other Offices the assurances of its highest consideration.
Ottawa, December 29, 2009
The Department of Foreign Affairs allows diplomats, consular officers or other official representatives to be accompanied during their posting to Canada by live-in domestic servants hired abroad. Domestic servants who do not live in the residence of the employer must be Canadian Citizens or Permanent Residents of Canada.
A private servant is a foreign domestic worker who resides with the employer and whose salary is the responsibility of the person for whom the private servant works; both parties being linked through a contractual relationship. A private servant is considered a “member of the suite” of the employer as defined by the Immigration and Refugee Protection Regulations R186 and as such will not be required to obtain an employment authorization before arriving in Canada.
To qualify as a private servant, a written agreement in the form of the HDWEA must be signed by both parties. A copy of this agreement appears in Part III of this Note. The terms and conditions of employment agreed upon should respect Canadian labour standards (please note that in Canada minimum labour standards fall under provincial jurisdiction) and other requirements as set out in this Note.
A private servant must undergo a medical examination, even if his/her country is visa exempt, as required by the Immigration Regulations and must have a minimum of one year's experience as a domestic servant. It is also preferable for a private servant to have an understanding and basic speaking ability in one of the official languages of Canada, French or English, and we strongly encourage the employer to provide the servant with the means to undertake courses in one of the official languages to attain a speaking ability beyond this level. As a general rule, a private servant cannot be a blood relative of the employer or the employer's spouse. Neither can the private servant be accompanied by dependants.
A private servant who complies with all the requirements will be issued an official visa, even if his/her country is visa exempt.
While only one written agreement is to be signed with the employee, an addendum could be attached to the HDWEA form if it is necessary to include additional elements in the agreement that are not required by the Department. For example, the commitment of enrolment in second language courses.
Unless specified otherwise to a foreign state, ambassadors/high commissioners, other members of the diplomatic staff, members of the administrative and technical staff, career heads of consular posts, other career consular officers, consular employees and senior officials of international organizations may bring private servants of any nationality to Canada. Members of the service staff are not entitled to bring private servants to Canada.
The number of private servants that may be brought to Canada during a posting will depend upon the rank of the official.
A) Ambassadors, High Commissioners may bring into Canada a maximum of four private servants.
B) Diplomatic agents of the rank of Deputy High Commissioner, Deputy Head of Mission, Ministers, Minister-Counsellors, Counsellors, Consuls General, Heads of International Organizations, permanent national representatives to international organizations in Canada may bring into Canada a maximum of two private servants.
C) All other diplomatic agents, Consular Officers as well as Senior Officials of International Organizations may bring one private servant into Canada.
D) Members of the Administrative and Technical staff and Consular Employees may bring one private servant into Canada.
Requests for additional private servants will be considered on a case-by-case basis, and only in exceptional circumstances. (See Part II for the procedure.)
It should be emphasized that a person who is a Canadian Citizen or Permanent Resident of Canada may be hired locally as a domestic servant without restriction. A locally-engaged employee will not be given an Official Acceptance by the Office of Protocol.
Through the HDWEA the employer voluntarily undertakes to respect Canadian employment standards in Canada, the employment standards are determined by provincial authorities. Part II of this Note outlines the minimum standards established by the provinces of Quebec and Ontario and websites with contact details for the relevant ministries. If the employer resides in another province the Office of Protocol will provide, upon request, information about the minimum standards in that province.
The Department would like to draw attention to the fact that, in Canada, there is a minimum age requirement for employment. The minimum age varies from province to province. The Department will not authorize the employment of a person under the minimum age.
Initially, a private servant will be granted an official acceptance of two years with the possibility of yearly extensions to a maximum of seven years. The private servant will be required to leave Canada upon termination of the contract, at the end of the employer's posting or after seven years, whichever is earliest.
The transfer of a private servant to another employer will be permitted if both parties requesting the transfer have respected the terms and conditions of the previous contract. In cases of transfer, the employee will not be allowed to receive any extensions beyond seven years from the date of the first engagement.
A private servant who has been in Canada for the maximum period of seven years and who wishes to find a new employer and return to work in Canada under an official acceptance will be allowed to do so only after a stay abroad of at least six months and if the private servant has respected the terms and conditions of the HDWEA with the previous employer(s).
A private servant is not entitled to bring dependants to Canada. A husband-and-wife team working for the same employer will be considered as two private servants. However this will only be possible in the case of employers who are allowed two or more private servants (see Part I section 3 A) & B)).
The Department will not accept as a private servant, a person who is a close blood relative of the employer or the employer's spouse. However an employer is permitted to have as a private servant, a person who is a tribal relation. The office abroad will verify this element and advise the Office of Protocol accordingly before a visa is issued. Blood relationship means a first degree relationship with the employer and/or the employer’s spouse. This includes grandparents, parents, brothers or sisters, nephews or nieces, sons or daughters or grandchildren.
The employee must have a minimum of one year of experience as a domestic or in that field of work and preferably an understanding and basic speaking ability in one of the official languages of Canada French or English. Experience gained from working in a context other than one of an employer-employee relationship will not necessarily be deemed as an acceptable experience. In short, the future employee must have the necessary qualifications to perform the tasks that are described in the HWDEA.
The Department requests that all payments to the employee be done by either cheque or bank transfer. Cash payments are not permitted. In addition, the employee should receive a payroll statement. The Department may, at any time, request a copy of such statement as proof of payment from the employer.
It is the responsibility of the employer to ensure complete, accurate and timely payroll.
A foreign official who fails to respect the terms and conditions of the HWDEA, including those relating to the method of payroll, will not be allowed further private servants. A private servant who violates the terms and conditions of the contract will not be allowed to change employers.
An employer may, however, change a private servant during the course of a normal posting on condition that the previous private servant has completed his/her contract, has transferred employer or has left Canada.
The employer must not confiscate the passport, employment contract or other personal property from the private servant. Indeed, the private servant has a right to keep his or her passport in a safe and accessible place at all times.
As far as is possible, the Office of Protocol should be informed by Diplomatic Note a minimum of two weeks in advance of the termination of a private servant's employment, together with details of the arrangements made for the person's departure from Canada. The identity card of the employee must be returned to the Office of Protocol, along with the employee's passport for an adjustment to the official acceptance.
Whether the official is in Canada or still abroad, the employer is required to complete a HDWEA for each private servant brought into Canada.
A person in Canada, who wishes to bring a foreign domestic worker as a private servant, is required to complete the HDWEA.
A) An HDWEA must be filled out and signed by the employer.
B) When the future employer is in Canada, permission must be requested from the Office of Protocol by Diplomatic Note to which is attached a copy of the HDWEA.
Once approved by the Office of Protocol the original HDWEA must be sent by the employer to the future employee for signature.
When the future employer is abroad, the HDWEA signed by the two parties should be forwarded directly to the Canadian mission along with the future employee's application for a visa. The mission will fax a copy of the HDWEA to the Office of Protocol for its approval.
C) It is the responsibility of the future employer to ensure that the original version of the HDWEA is provided to the future employee for submission to the Canadian mission abroad; a copy should be retained by the prospective employee.
D) The prospective employer must also keep a copy, as a copy must be attached to the Diplomatic Note requesting accreditation for the private servant.
The future employee must file an application for visa and attach the original of the HDWEA signed by both parties to the application. All private servants must go through the visa process irrespective of whether the country is visa exempt.
When a copy of the HDWEA has been sent directly to the Office of Protocol (see Part II (1)(B), the Office of Protocol will inform in advance the Canadian mission that the future employee will present an application for visa, together with the original of the HDWEA signed by the two parties.
The HDWEA must be approved by the Office of Protocol. To be approved the HDWEA must meet the minimum Canadian labour standards. In cases where clarifications are needed, the information should be sought from the Citizenship and Immigration Officer at the Office of Protocol.
The minimum standards to be respected for wages and benefits, accommodation and hours of work are based on minimum requirements established by federal and provincial authorities. The minimum standards in the provinces of Ontario and Quebec are outlined in the annex to this Circular Note. If the employer resides in another province the Office of Protocol will provide, upon request, information about the minimum standards in that province. A HDWEA that has terms and conditions of employment which are lower than Canadian minimum standards will not be approved, even if the HDWEA has been accepted by the prospective employee.
The following requirements must be satisfied prior to the issuance of an entry visa:
In each case, even for persons whose country is visa exempt, the private servant must undergo a medical examination as required by Immigration Regulations. The results will have to be known before the private servant is issued a visa, which is required in all cases.
A visa will not be issued to a private servant who is inadmissible to Canada for medical reasons.
The Canadian mission will evaluate the applicant's expertise and/or a possible blood relationship with the employer. It will inform the office of Protocol of those results. The Mission will also ensure that a medical examination is done.
A copy of the HDWEA will be faxed to the Office of Protocol of the Department of Foreign Affairs in Canada, which will ensure that it meets Canadian labour standards, and that the employer is entitled to a private servant. The Office of Protocol will advise the mission of its decision.
Where a diplomat is already in Canada, the Canadian mission abroad may confirm with the Office of Protocol the number of private servants already in the service of the employer or the circumstances surrounding the replacement.
The private servant will be issued an official visa, even if his/her country is visa exempt. Where such a visa is issued, a private servant does not need an employment authorization.
When a visa is granted to a private servant the original of the HDWEA must be sent by the Canadian mission to the Office of Protocol.
Upon arrival in Canada the private servant will be granted admission as a visitor. The mission should present the private servant to the Office of Protocol by way of a Diplomatic Note, together with a copy of the HDWEA signed by both parties, the passport, three passport size photos and two registration cards (Ext 231).
The private servant will then be issued an official acceptance by the Office of Protocol and will receive an identification card.