Canada: Labour Code Reform

Last Updated: October 16 2001
Article by François Garneau

Introduction

On May 15, 2001, Labour Minister Jean Rochon tabled Bill 31, An Act to amend the Labour Code, to establish the Commission des relations du travail and to amend other legislative provisions (the "Bill"), in the Quebec National Assembly.

The Bill makes some major structural changes in that it provides for the:

  • abolition of the two-tiered decision-making system (labour commissioner and labour court) and its replacement by just one authority, the Commission des relations du travail (la "CRT");
  • granting of new decision-making powers to the CRT comparable to those already vested with the Canada Labour Relations Board;
  • transfer to the CRT of jurisdiction over recourses against unlawful and wrongful dismissals resulting from various Quebec statutes.

The Bill amends the current statutes by:

  • enacting new rules applicable to processing certification applications;
  • striking out the judicial sale exception under Section 45 of the Labour Code (the "Code");
  • setting up a prior notice mechanism by the employer in the event of the sale or total or partial transfer of an undertaking;
  • defining the terms and conditions surrounding the application of a partial transfer of an undertaking in Section 45.2 of the Code.

Furthermore, the Bill breaks new ground compared to the current statute by:

  • obligating an employer to give the union prior notice of his intention to make changes to working methods that would cause some of his employees to lose the status of employee;
  • implementing a mechanism allowing for CRT recognition and the transfer of certification and a collective agreement made under federal authority where the undertaking falls under provincial jurisdiction;
  • empowering the CRT to order, only once during the bargaining period and at the request of the employer that a ballot vote be held under its supervision, allowing employees to vote on management's latest offer.

I. Commission des relations du travail

In setting up the CRT, the legislator's intention is to simplify and accelerate the processing of applications and proceedings set out in the Code and in some related statutes.

The acceleration in application processing will result in the elimination of proceedings brought before the Labour Court which, according to the Minister, add on average six months to the processing of files. Furthermore, in the case of certification petitions, the CRT’s decision must be rendered within 60 days of filing.

a) CRT jurisdiction

The CRT will have exclusive jurisdiction over any complaint, proceeding or application made pursuant to the provisions of the Code. Thus, the CRT will rule, in particular, on:

  • petitions for certification and any other matter relating to the scope of the certification, including the question of knowing if a person is an employee or if this person is included in the bargaining unit (Secs. 25, 32 and 39 of the Code);
  • complaints lodged pursuant to Sections 12 and 13 of the Code (interference in an association of employees or of employers);
  • complaints for dismissal for union activities and other disciplinary measures or repraisals (Secs. 15 and following of the Code);
  • pursuant to Section 20 of the Code, the determination of an indemnity payable to an employee dismissed or suspended without cause;
  • any petition involving decertification (Sec. 41 of the Code);
  • any request concerning the effects of the sale or partial or total transfer of an undertaking on the certification and collective agreement (Secs. 45, 45.1, 45.2, 45.3 and 46 of the Code);
  • proceedings based on Sections 47.2 and following of the Code (lack of equitable representation by a certified association);
  • the review or revocation of one of its decisions (old Section 49, new Section 128 of the Code).

The legislator also provided that the CRT would exercise the jurisdiction currently vested in the labour commissioner pursuant to various statutes. In this respect, the CRT will have jurisdiction to hear the complaints, applications and proceedings listed in Schedule I of the Bill, which, in particular, include the following proceedings:

  • complaint for dismissal, suspension and illegal transfer pursuant to Sections 122 and 122.2 of the Labour Standards Act and complaint for dismissal without just and sufficient cause pursuant to Section 124 of the Labour Standards Act;
  • complaint pursuant to Section 45 of the Charter of the French language (Chapter C-11) for dismissing, laying off, demoting or transferring an employee simply because he is exclusively French speaking and a complaint pursuant to the second paragraph of Section 46 because the employer, without any right, requires the knowledge of a language other than the official language;
  • complaint for dismissal or removal of an executive pursuant to the Cities and Towns Act (Chapter C-19), the Municipal Code of Quebec (Chapter C-27.1) and various statutes governing the Quebec City and Montreal urban communities. All these complaints have fallen under the jurisdiction of the Labour Commissioner since December 20, 2000 further to the adoption of Bill 150 on municipal reform;
  • proceedings against a suspension without pay or the dismissal of any municipal employee in default within the meaning of sub-paragraph 48g) of the Act respecting the Commission municipale (Chapter C-35);
  • proceedings against a dismissal, suspension or transfer of an employee having asserted his rights pursuant to a decree under the first paragraph of Section 30.1 of the Act respecting collective agreement decrees (Chapter D-2);
  • proceedings against a sanction imposed upon a municipal employee who is an election officer pursuant to Sections 88.1 and 356 of the Act respecting elections and referendums in municipalities (Chapter E-2.2);
  • complaint for sanction taken against an employee in violation of the provisions of the Act respecting school elections (Chapter E-2.3);
  • complaint for sanction against an employee in violation of the provisions of the Election Act (Chapter E-3.3);

b) Powers of the CRT

In exercising its quasi-judicial powers, the CRT must allow the parties to be heard subject to three exceptions:

  • in certification matters, where there is no disagreement on the description of the bargaining unit or whether or not certain persons are included in the bargaining unit;
  • in certification matters, where the labour relations agent grants a certification pursuant to paragraphs d) or d.1) of Section 28 of the Labour Code;
  • if it deems it appropriate and if the parties concur, it may proceed with the file.

The Bill gives broader powers to the CRT, in that:

  • its decisions are final and binding and protected by a privative clause;
  • it may summarily dismiss any application, complaint or procedure that it deems improper or dilatory;
  • it may render any order, including a provisional order that it deems necessary to safeguard the rights of the parties;
  • it may decide on any issue of law or fact necessary to exercise its jurisdiction and render any decision that it deems appropriate;
  • it may ratify any conciliation agreement if it complies with applicable legislation, whether the Code or the Labour Standards Act or any other legislation falling under the jurisdiction of the CRT.

The Bill also grants the CRT broad powers with regard to a strike, slowdown, concerted action or actual or threatened lock-out. In fact, the CRT may, in such a case:

  • order a person, group of persons, association or group of associations to cease performing, not to perform or to perform an act to be in compliance with the Code;
  • require any person to redress any act or remedy any omission made in contravention of a provision of the Code;
  • order a person or group of persons, in light of the conduct of the parties, to apply the measures of redress it considers the most appropriate;
  • issue an order not to authorize or participate in or to cease authorizing or participating in a strike or slowdown within the meaning of Section 108 of the Code or a lock-out that is or would be contrary to the Code or to take measures that it considers appropriate to induce the persons represented by an association not to participate or to cease participating in such strike, slowdown or lock-out;
  • order, where applicable, that the grievance arbitration procedure under a collective agreement be accelerated or modified.

The Bill further confers a certain number of inquiry powers upon persons designated by the president of the CRT. For inquiry purposes, these persons are vested with powers and immunity of commissioners appointed pursuant to the Act respecting public inquiry commissions 1. They may, in particular, have access, at any reasonable time, at any place of work or establishment of a party to obtain information necessary to apply the Code.

CRT decisions will be final and binding. The decisions must be in writing and must be qualified. However, the Bill provides that the CRT may, upon application, review or revoke any decision or order it has made for reasons that are comparable to the retraction of judgments pursuant to the Code of Civil Procedure (that is to say, new facts, new evidence, a party could not be heard or a substantive or procedural defect likely to invalidate a decision).

The Bill initiates a certain number of mechanisms intended to facilitate the settlement of disputes and simplify the hearing of applications. To begin with, a conciliation mechanism is available to parties who agree to it. The content of the mediation is confidential and is not admissible into evidence. Furthermore, any agreement must be signed by the conciliator and by the parties. It may be subject to CRT approval at the request of one of the parties. Second, the commissioner to whom a matter is referred may call the parties to a pretrial conference, the purpose of which is stipulated in Section 137 of the Code.

c) CRT organization

The CRT will be headed by a president who will be assisted by two government-appointed vice-presidents. The other commissioners will be subject to the same appointment method. The president, vice-presidents and commissioners must all have knowledge of applicable legislation and ten years of relevant experience in matters falling under the jurisdiction of the CRT. However, the president and vice-presidents will be appointed after consultation with the most representative associations of employees and employers. The term of the office of the president and vice-presidents is at least five years. A commissioner’s mandate will be five years and it may be renewed for an additional five-year period. Furthermore, the CRT's president may appoint labour relations agents who will be responsible for verifying, among other things, the representative nature of an association of employees or its right to certification as well as the investigators responsible for conducting an inquiry on any manner falling under the jurisdiction of the CRT.

II. Amendment of the existing Act

A) Certification procedure

The goal of the proposed amendments is to grant more powers to the certification agent (the "certification agent") so as to accelerate the certification process. However, the basic criteria governing the right to certification (Section 21 of the Code) remains unchanged. As of the effective date of the Bill:

  • the employer must post a copy of the petition for certification in a conspicuous place no latter than the business day following the date of its receipt. As before, he must also post the complete list of the undertaking's employees concerned by the petition within five days of receipt of the copy of the petition;
  • the time period to contest the description of the bargaining unit is reduced from 15 to 10 days (Section 28 (c);
  • the certification agent may certify a union even where there is no agreement on the description of the bargaining unit, if he concludes that the union maintained its majority notwithstanding the CRT decision on the description of the bargaining unit. The exercise of this power will considerably reduce the waiting periods between the filing and the granting of the certification petition;
  • where a certified association already exists, or where there is more than one petitioning association of employees, if the certification agent ascertains that there is agreement on the bargaining unit between the employer and any association concerned, he may certify the association grouping the absolute majority of the employees or, if not, hold a secret ballot in accordance with the provisions of Section 37 of the Code and, consequently, certify the association that has received the greatest number of votes in accordance with the provisions of Section 37.1. If there is disagreement on the bargaining unit or on the persons to whom it applies, the certification agent will table a report on the disagreement with the CRT and send a copy to the parties;
  • the CRT must render its decision within 60 days of the filing of the certification petition.

B) Amendments to Sections 45 and 46 of the Code

First of all, the exception pertaining to judicial sale is deleted from the text of Section 45, the effect of which will be to subject forced sales to the application of this section. These could include, among other things, certain sales by trustees in bankruptcy or by secured creditors.

Secondly, the legislator imposes the obligation upon the employer to send a prior notice of his intention to alienate or transfer the operation of all or part of his undertaking. This notice must be remitted to the association of employees which then has 90 days to apply to the CRT for a determination as to the application of Section 45. If the employer did not send any such notice, the union then has 270 days, from the knowledge of the alienation or transfer, as the case may be, to refer the matter to the CRT.

Thirdly, the legislator has just established a certain number of rules in the event of the partial transfer of the undertaking. The new rules provide that:

  • where there is a special agreement on the transfer, the parties may elect not to apply to the CRT to request the application of Section 45 of the Code. Such a stipulation will bind the CRT. Notwithstanding the Ministry’s statements, this provision is ambiguous because, as a general rule, the parties to a sale are the buyer and the seller and not the union. Are we to deduce that the buyer and the seller may circumvent the application of Section 45 without the union’s consent? As the union must now be informed of any proposed partial transfer (Sec. 45.1), we must presume that it would probably apply to the CRT for a ruling on the legality of such a clause;
  • in the event of a partial transfer, the collective agreement will end on the first of the following dates:
    • the expiry of the collective agreement; or
    • 12 months after the partial transfer date;

however, upon application by the union, if the CRT deems that the transfer took place with the main purpose of dividing a bargaining unit or interfering with the power of union representation, it may declare that the new employer will be bound by the collective agreement until its original expiry date.

Furthermore, the legislator also amends Section 46 of the Code to clarify the CRT’s powers where it is seized with a petition pursuant to this section. In fact, several difficulties arose in the past, in particular, with regard to corporate mergers involving several associations of employees. Thus, the CRT may:

  • grant or amend a certification;
  • certify an association of employees highlighted by the application of Sections 45 and 45.3 of the Code after having verified the representative nature of this association by any means it deems expedient, in particular, by holding a secret ballot;
  • describe or modify a bargaining unit;
  • merge bargaining units and, where several collective agreements apply to employees of the new employer included in a bargaining unit resulting from the merger, determine the collective agreement that remains in force and make any modification or adaptation it considers necessary.

C) Innovations compared to the prior law

(I) Transfer and recognition of federal certification

The legislator set up a mechanism allowing for provincial authority recognition of a certification granted under the Canada Labour Code. The collective agreement will be deemed to be a collective agreement concluded and filed pursuant to the Quebec Code. Likewise, pending proceedings will be deemed to be proceedings brought pursuant to the Code. The employer, or the new employer, as the case may be, will be bound by the collective agreement and the proceedings will continue pursuant to the Code.

(ii) Changes to employee status

An employer who intends to make changes to the undertaking’s operations that might result in a change in the status of one or more employees to that of a non-salaried contractor must first notify the certified association in writing. The notice must contain a description of the contemplated changes. The certified association that disagrees with the outcome of the proposed changes with regard to the status of employees may, within 30 days of receipt of the notice, apply to the CRT for a ruling on the consequences of these changes. Note that the employer cannot implement the changes before this 30-day period or before the CRT’s decision if the certified association sought its intervention. The CRT must render its decision within 60 days of the receipt of the request from the certified association.

(iii) Secret ballot on latest offers

The employer will now be able to ask the CRT to order the holding of a secret ballot to give a group of employees the opportunity to accept or reject the latest offers made by the employer on any matters forming the subject of a dispute between the parties. This vote, which will be held under the CRT’s supervision and within time frames that it will determine, will only be ordered once during the bargaining phase of a collective agreement.

Conclusion

Bill 31 was adopted and ratified on June 21, 2001. Some provisions of the Bill took effect in July 2001 while others will only come into force once the government enacts a decree in this respect. Both employer associations and unions objected to some aspects of the Bill. According to management, the government did not go far enough to facilitate recourse to outsourcing and fear possible union interference in the employer’s decision to use contractors. On the other hand, unions blame the government for not having given dependent contractors the opportunity to unionize and they object to the changes made to Section 45 regarding recourse to outsourcing in the event of the partial transfer of the undertaking. Notwithstanding the foregoing, the Bill, as it now stands, is expected to come into force.

FOOTNOTES

1) R.S.Q. c. C-37

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.