Canada: Amendments To The Labour Standards Act: Overview Of The Draft Bill

Since 2003, the Act respecting labour standards (the "Act")1 has undergone very few amendments. On the whole, employers' obligations and the rights of employees have hardly changed. Over the last several months however, the Liberal government has intimated that a reform of the Act was imminent. Finally, yesterday afternoon the government tabled Bill 176, entitled An Act to amend the Act respecting Labour Standards and other legislative provisions mainly to facilitate family-work balance (the "Bill").

It must be stressed that all employers, in both unionized and non-unionized environments, should be well aware of the new public-order labour standards that are to be adopted, as these minimum standards apply to all employees. Of course, nothing prevents employers from implementing more generous labour standards in order, for example, to attract new employees or retain current ones.

Here are some of the innovations proposed by the Bill.

Refusal to work: reduction of the number of additional hours an employee may be required to work, and requirement of five days' advance notice

The Act currently specifies certain situations where an employee can refuse to work, such as where the employee's regular daily working hours would be exceeded by four hours. The Bill reduces the maximum overtime the employee may be required to work to two hours (s. 59.0.1).

In addition, the Bill adds the following new ground on which an employee may refuse to work overtime: "if he was not informed at least five days in advance that he would be required to work ... "(s. 59.0.1).

There is however a major limitation on this right of the employee, i.e. where "the nature of his duties requires him to remain available or his services are required within the limits set out in subparagraph 1". That subparagraph refers to the maximum number of hours an employee may be required to work on a daily basis or per 24 hour period (s. 59.0.1).

Staggered working hours (calculation of overtime)

The rules governing the staggering of working hours are also to be revised. Currently an employer must obtain the authorization of the Commission des normes, de l'équité, de la santé et la sécurité du travail (the "CNESST") in order to stagger the working hours of its employees on other than a weekly basis. The Bill introduces the possibility of staggering working hours without obtaining the authorization of the CNESST. However, the employer and employee must agree on such staggering, subject to some specific conditions (e.g. an agreement in writing with a maximum term of six months, staggered hours over a maximum period of four weeks, the work week may not exceed the standard provided for in the law or regulations by more than 10 hours, etc) (s. 53). Such staggering would give employers more flexibility in managing the overtime hours worked in their organization.

Psychological harassment

The Bill introduces the following new provision: employers must now adopt and make available to their employees "a psychological harassment prevention and complaint processing policy". While for many employers this is a current management practice2, every employer must now be fully aware of its obligation to provide all its employees with a work environment free from psychological harassment (s. 81.19).

It should be noted that the Bill specifies that psychological harassment can also consist of verbal comments, actions, or gestures of a sexual nature. This innovation in fact confirms the current state of the case law, as adjudicators have already concluded that sexual harassment is a type of harassment included in the concept of psychological harassment (s. 81.18).3 In addition, the Bill amends section 123.6 of the Act specifying the recourse available to employees against psychological harassment. Pursuant to the Bill, the CNESST must notify the Commission des droits de la personne et des droits de la jeunesse where a complaint regarding harassment concerns behaviour of a sexual nature.

Leave

Annual paid leave

Putting an end to considerable speculation over the last few weeks regarding annual paid leave, the Bill proposes, as the sole change regarding the duration of such leave, that an employee will now be entitled to three weeks' annual leave with pay after only three years of uninterrupted service. The Act currently provides that an employee acquires this right two years later, i.e. after five years of uninterrupted service (s. 69).

In addition, the Bill specifies that the indemnity for an employee's annual leave be paid not exclusively in a lump sum before the beginning of the leave, but also "or in the manner applicable for the regular payment of his wages" (s. 75).

Finally, section 75 of the Act currently makes an exception for farm workers, who could have the indemnity added to their wages and be paid in the same manner. The Bill provides that this exception will apply in all situations "where it is warranted by the seasonal or otherwise intermittent activities of an employer" (s. 75).

Statutory holiday not coinciding with regular work schedule

Currently the Act provides for the granting of compensatory leave or an indemnity to an employee who is on annual leave during a statutory general holiday. The Bill expands this right to employees whose regular work schedule does not coincide with the statutory holiday (s. 64).

Absences

Absence due to conjugal violence

The Act currently provides that an employee may be absent from work "for a period of not more than 26 weeks over a period of 12 months, owing to sickness, an organ or tissue donation for transplant or an accident" (s. 79.1). The Bill proposes expanding this right to employees who are victims of conjugal violence.

Requirement of three months' uninterrupted service, and payment for two days of absence under section 79.1

Currently, in order to be entitled to a leave of absence for one of the reasons specified in section 79.1 (see above) an employee must be credited with three months of uninterrupted service (s. 79.2). The Bill abolishes this requirement, such that employees are entitled to be absent for any of those reasons as of their hiring date.

In addition, the Bill provides that an employee shall be entitled to be remunerated for the first two days of absence taken annually pursuant to section 79.1. This right is limited to employees with three months of uninterrupted service. However, if an employee becomes credited with three months of uninterrupted service while absent pursuant to section 79.1, he or she will become entitled to remuneration for those two days (79.2).

Leave of absence for caregivers for family members, concept of a "relative"

The Act currently provides that an employee may be absent from work, without pay, for ten days per year "to fulfil obligations relating to the care, health or education of the employee's child or the child of the employee's spouse, or because of the state of health of the employee's spouse, father, mother, brother, sister or one of the employee's grandparents" (s. 79.7).

The above list concerning the health of the employee's "spouse, father, mother, brother, sister or one of the employee's grandparents" is to be replaced, in new section 79.6.1 of the Act, by the concept of a "relative", the definition of which includes the following persons: "in addition to the employee's spouse, the child, father, mother, brother, sister and grandparents of the employee or the employee's spouse as well as those persons' spouses, their children and their children's spouses".

In addition, pursuant to the Bill this entitlement to 10 days' annual leave will also be applicable because of the state of health of "a relative or a person for whom the employee acts as a caregiver, as attested by a professional working in the health and social services sector" (s. 79.7).

In all cases contemplated by section 79.7, if warranted by the circumstances the employer may request that the employee furnish a document attesting to the reasons for the absence.

Finally, it should be noted that the Bill provides for entitlement to two days with pay (out of the 10 days of leave) for absence on one of the grounds provided for in section 79.7, provided the employee is credited with three months of uninterrupted service. This right to two days' remuneration cannot be combined with the two days with pay for absences on the grounds set out in section 79.1 of the Act.

Absence for serious illness or accident

The Bill extends the absence periods provided for in the Act on account of serious illness or a serious accident. Thus, if such an accident or illness befalls a "relative" as newly defined, or a "person for whom the employee acts as caregiver", the period is increased to 16 weeks from the current 12, per 12-month period. Where the relative or person is a minor child, the period will be no more than 36 weeks, again over a 12-month period (s. 79.8). In case of a serious illness that is potentially mortal, as attested by a medical certificate, the absence may be up to 27 weeks (unless the person concerned is the employee's minor child) (s. 79.8.1).

Other changes are proposed in the Bill in order to expand the protection afforded employees who must be absent in certain specific circumstances (disappearance of a minor child, suicide, etc.) (ss. 79.10 and following).

Paid leave on account of death or funeral

The Act currently provides that an employee may be absent from work for five days by reason of the death or funeral of certain relatives, and that one of those days is to be remunerated. The Bill proposes that two of those five days be remunerated (s. 80).

Differences in treatment clauses

The Bill notably expands the current prohibition on differences in treatment stipulated in section 87.1 of the Act. The Bill prohibits "any distinction made solely on the basis of a hiring date, in relation to pension plans or other employee benefits, that affects employees performing the same tasks in the same establishment".

This provision of the Bill is clearly intended to counter a decision rendered by the Court of Appeal in 20154, in which the Court sided with Yellow Pages Group, represented by Langlois lawyers, and confirmed that the prohibition on orphan clauses in collective agreements does not apply to pension and benefit plans. The Supreme Court of Canada subsequently dismissed the application for leave to appeal brought by the union.

It is important to note however that the Bill's transitional provisions provide that this new prohibition does not apply to a distinction made on the basis of a hiring date that was existing on the date that precedes the coming into force of the new prohibition.

Finally, the Bill introduces a specific recourse for employees who believe they have been the victim of a distinction targeted by this new prohibition on differences in treatment in connection with pension and benefits plans (ss. 121.1 and following).

Provisions regarding personnel placement agencies and recruitment agencies for temporary foreign workers

The Bill provides that personnel placement agencies and agencies that recruit temporary foreign workers must obtain a licence issued by the CNESST pursuant to a regulation to be adopted (s. 92.5).

The Bill also introduces new rules pertaining to temporary foreign workers, including the employer's obligation to inform the CNESST of the workers' date of arrival and departure. Also, if the CNESST has grounds to believe that any of the rights of a temporary foreign worker under the Act has been violated, the CNESST may, even if no complaint has been filed, exercise any recourse on behalf of the worker (s. 92.10).

In addition, the Bill creates additional obligations for personnel placement agencies with respect to the wages of employees. More particularly, it provides the following: "No personnel placement agency may remunerate an employee at a lower rate of wage than that granted to the employees of the client enterprise who perform the same tasks in the same establishment solely because of the employee's employment status, and in particular because the employee is remunerated by such an agency or usually works fewer hours each week" (s. 41.2).

Finally, the Bill stipulates that personnel placement agencies and their client enterprises are solidarily liable for the pecuniary obligations specified in the Act and the regulations thereunder.

Employees who work fewer hours per week

Current section 41.1 of the Act prohibits employers from paying an employee at a lower rate than that of other employees performing the same tasks in the same establishment for the sole reason that the employee usually works fewer hours each week. This principle is essentially maintained, with the added specification that a lower rate cannot be paid solely because of the employee's employment status.

Section 41.1 also currently provides for an exception, i.e. that the above-mentioned exception does not apply where the employee makes more than twice the minimum wage. That exception is repealed by the Bill.

Exception for student athletes

The Bill also makes an addition to the list of persons to whom the Act does not apply, i.e. "an athlete whose membership in a sports team is conditional on his continued participation in an academic program" (s. 5.1).

Liability of legal persons

The Bill proposes a change in the Act's penal provisions in respect of legal persons and their directors and officers, by referring to the defence of due diligence (s. 142).

On the whole, while the Bill tabled yesterday does not propose a wholesale reform of the currently applicable legislation, it does affect several of the rights and obligations of employees and employers in Quebec. Some queries have already surfaced regarding its practical application and how some of the changes are to be interpreted. The Bill will be debated over the coming weeks and could very well be modified before it is adopted.

Footnotes

1 CQLR, c N-1.1

2 The Administrative Labour Tribunal has already concluded that an employer that does not adopt any psychological harassment policy and provides no training in this regard has not discharged its obligation to prevent psychological harassment: Lachapelle-Welman v. 3233430 Canada inc., 2016 QCTAT 3557 (François Caron, Administrative Judge).

3 See for example: A. v. Ma garderie à moi inc., 2015 QCCRT 7, review denied 2015 QCCRT 286.

4 Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ c. Groupe Pages jaunes Cie, 2015 QCCA 918 (Application for leave to appeal to the Supreme Court of Canada dismissed (SCC 2016-02-18, no. 36562)

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.

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Geneviève Beaudin
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