Canada: Bill 42 And The Administrative Reorganization Of Labour Bodies

Last Updated: May 7 2015
Article by Frédéric Desmarais and Maude Longtin

Most Read Contributor in Canada, September 2016

On April 15, 2015, the Government of Québec tabled Bill 42, introduced by the Minister of Labour, Employment and Social Solidarity, Mr. Sam Hamad. The Bill provides for the reorganization of certain labour-related institutions.

Entitled An Act to group the Commission de l'équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, Bill 42 is part of the efforts being made by the Government of Québec to reform public finance.

More particularly, the Bill would establish a new tribunal, the "Administrative Labour Tribunal" (the "Tribunal") to take over the jurisdictions of the Commission des relations du travail (the "CRT") and the Commission des lésions professionnelles (the "CLP"). It would have four divisions tasked with hearing and adjudicating different kinds of labour-related recourses:

  • The Labour Relations Division would adjudicate matters resulting from the application of the Labour Code and the Act respecting labour standards (recourses against dismissals not made for good and sufficient cause, and for psychological harassment, motions for union certification, etc.).
  • The Occupational Health and Safety Division would handle cases arising from the application of the Act respecting industrial accidents and occupational diseases (the "AIAOD") and of the Act respecting occupational health and safety in inspection matters.
  • The Essential Services Division would rule on disputes pertaining to the provisions of the Labour Code relating to essential services.
  • The Construction Industry and Occupational Qualification Division would decide claims arising under the Act respecting labour relations, vocational training and workforce management in the construction industry.

In addition, the Bill provides for grouping together the activities of the Commission de l'équité salariale (the "CES"), the Commission sur les normes du travail (the ("CNT") and the Commission de la santé et la sécurité du travail (the "CSST") under the authority of a new commission which would act under the name of the Commission des droits, de la santé et de la sécurité du travail (the "Commission").

Minister Hamad expects to achieve some major savings by proceeding with this administrative reorganization of labour bodies, particularly through the reduction of the costs of managing each of the tribunals and commissions now in operation. The anticipated savings for the next three years amount to some $15 million dollars.

At first glance, such a reorganization could lead to a significant loss of expertise in the labour bodies concerned. It is true that each tribunal and each commission performs highly specialized tasks in its respective field, requiring expertise proper to each individual area of activity. Nevertheless, the terms of office of the administrative judges of the CLP and the CRT will be automatically continued within the new Tribunal. Furthermore, the new qualifications required to sit on the Tribunal will not affect their mandates as long as they remain members thereof. Thanks to that automatic continuation of the terms of office of the administrative judges of the CRT and the CLP, it is quite clear that their expertise will be preserved within the new system, at least initially.

The new Bill is first and foremost a piece of legislation aimed at modernizing the structures of the administrative justice system in the field of labour relations. Nevertheless, the Bill also contains a number of substantive amendments.

The legislator has decided to abolish the members of the employers' and unions' associations who sit with the administrative judges of the CLP on matters relating to the application of the AIAOD. That abolition does away with the principle of management-union parity that has been an inherent feature of the regime established by the AIAOD. In this regard, it is noteworthy that the president of the new Tribunal will be authorized to assign one or more assessors to advise a member sitting in the Occupational Health and Safety Division on any question of a medical, professional or technical nature. Finally, any worker will be entitled to intervene before the Tribunal in any cost-sharing application filed by his or her employer by reason of the employee's pre-existing disability.

The Bill also provides for the replacement of the present article 47.3 of the Labour Code by a new provision which would widen the scope of application of employee complaints alleging the failure of a certified employee association to perform its duty of representation and requesting reference of an employee's claim to arbitration. Such complaints will no longer be limited to cases of dismissal, disciplinary sanctions or psychological harassment.

Finally, the scope of application of section 98 of the Pay Equity Act is also being widened, since a certified employee association or an employer, in case of a disagreement over any joint pay equity audit, may submit their dispute to the Commission. At present, the CES is only empowered to arbitrate disagreements between certified employee associations and employers where they have set up a joint pay equity plan.

For the moment, the rules and procedures applicable to a recourse before the CRT and the CLP, as well as the rules and procedures applying to the CES, the CNT and the CSST, will remain unchanged, subject to the decision of the National Assembly, and between now and the coming into force of Bill 42 and the regulations to be adopted under it.

In the meantime, we will keep you informed promptly of any developments pertaining to the adoption and coming into force of Bill 42.

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