Canada: Quebec's Revised Act Respecting Labour Standards: New Challenges For Employers

Québec's National Assembly recently enacted Bill 176, entitled An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance (Bill). The Bill was assented to on June 12, 2018.

Below is a description of the key changes made to the Act respecting labour standards (Act) and which, unless otherwise indicated, came into force on June 12, 2018.

DIFFERENCES IN TREATMENT – PENSION PLANS

No employer may make a distinction relating to pension plans or employee benefits offered to employees performing the same tasks in the same establishment if the distinction is based solely on the hiring date. This prohibition would not be retroactive and would apply, as of June 12, 2018, to new distinctions based solely on the hiring date.

A specific remedy against such disparities in treatment is now provided for under the Act. Thus, an employee or an employees' rights organization can file a complaint with the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) or the Administrative Labour Tribunal (ALT) within 12 months of becoming aware of the distinction. Employees subject to a collective agreement or a decree can file a complaint with the CNESST if they prove that they have not exercised recourses arising out of the applicable collective agreement, or that, if they did so, they discontinued proceedings before a final decision was rendered.

If the CNESST agrees to take action regarding the complaint, it will refer the complaint without delay to the ALT, after which it will be able to represent the employees in such proceedings.

If the ALT considers that an employee has been the victim of a prohibited distinction, it may render any decision it believes fair and reasonable, including making an order that the employee be made a member of a pension plan or making other employee benefits applicable to the employee.

PLACEMENT AND RECRUITMENT AGENCIES

Every personnel placement agency or recruitment agency for temporary foreign workers will be required to hold a licence issued by the CNESST. The government may, by regulation, define what constitutes a placement agency, a recruitment agency, a client enterprise and a temporary foreign worker; establish categories of licences; determine the period of validity of a licence and specify any applicable condition; prescribe administrative measures; and determine the obligations of a client enterprise that retains the services of an agency. The CNESST will be required to make available to the public a list of holders of such licences that it draws up and keeps up to date.

The Act also provides that no personnel placement agency will be entitled to 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. A personnel placement agency and a client enterprise will be solidarily liable for the pecuniary obligations fixed by the Act and its regulations.

The Act also imposes various obligations on the employer of temporary foreign workers, including the obligation to inform the CNESST of the employees' date of arrival and the term of their contracts. Moreover, it will now be prohibited for an employer (i) to require temporary foreign workers to entrust custody of personal documents or property to the employer, and (ii) to charge temporary foreign workers fees related to their recruitment, other than fees authorized under a Canadian government program.

All of the amendments pertaining to placement agencies and recruitment agencies will come into force on the date of coming into force of the first regulation made under these new provisions.

OTHER AMENDMENTS

Wages

An employer will be prohibited from remunerating an employee at a lower rate of wage than that granted to its other employees who perform the same tasks in the same establishment solely because of the employee's employment status or because the employee usually works fewer hours each week, even if the employee earns more than twice the minimum wage. This amendment will come into force on January 1, 2019.

The Act now allows an employer to pay wages by cheque or bank transfer.

Work Schedule

Employers and employees may agree on the staggering of working hours on a basis other than weekly, without the authorization of the CNESST, provided certain conditions are met. Notwithstanding such an agreement, the workweek cannot exceed by more than 10 hours the workweek provided for and applicable under the Act or the applicable regulations.

In addition, the Act will impose a two-hour limit on the number of overtime hours an employee is required to accept in addition to his regular workday and it will allow an employee, under certain circumstances, to refuse to work overtime if he or she has not been informed of the work schedule at least five days in advance. This amendment will come into force on January 1, 2019.

Statutory General Holidays

An employer must pay an employee the indemnity for statutory general holidays even if the employee is on vacation on the date of the holiday or if the holiday does not coincide with the employee's regular work schedule.

Vacations

Employees who, at the end of a reference year, are credited with three years of uninterrupted service with the same employer, will be entitled to three consecutive weeks of vacation instead of two. This amendment will come into force on January 1, 2019.

The Act has been adapted to conform to the standard practice of many employers and now allows the vacation indemnity (i.e., vacation pay) to be paid in the manner applicable for the regular payment of an employee's wages.

Absences Owing to Sickness, Organ or Tissue Donations, Accidents, Domestic Violence, Sexual Violence or Criminal Offences

An employee can now be absent from work without pay for no more than 26 weeks over a period of 12 months owing to domestic violence or sexual violence, in addition to the other existing reasons for an absence.

Going forward, employees will be entitled to this period of absence. The first two days of absence for these reasons, each year, will be remunerated, provided the employee has three months of uninterrupted service and has not already had two remunerated days to fulfil obligations relating to the care, health or education of the employee's child or the child of a relative or of a person for whom the employee acts as a caregiver. Remuneration for the first two days of absence will come into force on January 1, 2019.

Family or Parental Leave and Absences

The Act updates the existing concept of "relative" in order to include certain persons forming part of the "reconstituted family" and any person in respect of whom the employee is entitled to benefits under a law for the assistance and care the employee provides to that person owing to the person's state of health.

The Act now allows any employee to be absent from work for 10 days per year to fulfil obligations relating to the care, health or education of the employee's child or the child of a relative or of a person for whom the employee acts as a caregiver. The two first days of absence for these reasons, each year, will be remunerated, provided the employee has three months of uninterrupted service and has not already had two remunerated days for an absence owing to sickness, an organ or tissue donation, an accident, domestic violence, sexual violence or a criminal offence. Remuneration for the first two days of absence will come into force on January 1, 2019.

The period of time during which an employee can be absent if he or she must stay with a relative is now (i) 27 weeks over a period of 12 months because of a serious and potentially mortal illness; (ii) 36 weeks over a period of 12 months because of a serious illness or serious accident suffered by a minor child; and (iii) 16 weeks over a period of 12 months because of a serious illness or serious accident suffered by any other relative.

Various other amendments were made to the Act with respect to absences and leaves in the event of a death.

Psychological and Sexual Harassment

Verbal comments, actions and gestures of a sexual nature are now expressly included in the notion of psychological harassment. The Act will require employers to adopt and make available to their employees a psychological harassment prevention and complaint processing policy. This obligation will come into force on January 1, 2019.

Any complaint concerning psychological harassment must be filed within two years of the last incidence of the offending behaviour.

Lastly, when a complaint pertains to discriminatory conduct, the CNESST may, with the consent of the employee, send the complaint to the Commission des droits de la personne et des droits de la jeunesse under the terms of an agreement entered into by those organizations and approved by the minister of labour.

Penal Offences

The Act now states that the directors or officers of a legal person, partnership or association without legal personality are presumed to have committed an offence under the Act if the legal person or a representative, mandatary or employee of the legal person, partnership or association without legal personality commits an offence under the Act or its regulations, unless it is established that the directors or officers exercised due diligence, taking all necessary precautions to prevent the offence. In the case of a partnership, all partners, except special partners, are presumed to be directors of the partnership unless there is evidence to the contrary appointing one or more of them, or a third person, to manage the affairs of the partnership.

For permission to reprint articles, please contact the Blakes Marketing Department.

© 2018 Blake, Cassels & Graydon LLP

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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