On May 13, the Minister responsible for the French Language, Mr. Simon Jolin-Barrette, introduced Bill 96, An Act respecting French, the official and common language of Quebec ("Bill 96").
Bill 96 proposes, among other things, to substantially amend the Charter of the French Language (the "Charter") by introducing new measures aimed at ensuring the prevalence of French in workplaces and by subjecting companies with 25 to 49 employees in Québec to the obligations and requirements of the Charter in respect of francization (government certification that the use of French is generalized in a workplace).
An overview of the key changes proposed with respect to the language of work and francization of companies is presented below.
Communications to employees
Bill 96 clarifies the types of French documentation that an employer is required to provide to its employees (now called workers). While an employer is already required to provide communications to its employees in French, as well as offers of employment or promotion, Bill 96 explicitly extends this obligation to the following:
- offers of transfer;
- written individual employment contracts;
- written communications, including those following the termination of the employment relationship, that an employer addresses to its employees, except if there has been an express request by an employee that such communications be provided in a language other than French;
- employment application forms;
- documents relating to conditions of employment;
- training documents created for the employees.
Furthermore, Bill 96 provides that pre-determined employment contracts (also known as adhesion contracts) or employment contracts containing standard clauses written in a language other than French will only have a binding effect between the parties if the parties have reviewed its French version and expressly consent to being bound by the non-French version of the contract. In other cases, the consent of the parties will suffice. For example, an individual employment contract duly negotiated between the parties could be drawn up in English if the parties expressly agree.
It should also be noted that if Bill 96 is passed as currently drafted, all individual employment contracts entered into before Bill 96 comes into force which are drafted in a language other than French will have to be translated in a timely manner, provided that the concerned employees request the translation from their employer within one year after Bill 96 comes into force. Employers will not be required to translate fixed-term employment contracts that end within two years of the implementation of Bill 96. In addition, employers will have a period of 12 months following the implementation of Bill 96 to make available a French version of application forms, documents relating to working conditions and training documents for employees to the extent that these documents were not available in French before the implementation of Bill 96.
Specific knowledge of a language other than French
Bill 96 will amend the Charter to specify a framework for an employer's right to require that an employee know a language other than French. More specifically, the employer will have to be able to demonstrate that the performance of the employee's duties requires such knowledge and that it has, in advance, taken all reasonable steps to avoid imposing such a requirement. In this regard, Bill 96 provides that an employer will be deemed to not have taken all reasonable steps if, before stipulating that such knowledge is required, it has not met one of the following three conditions:
- the employer assessed the actual language needs associated with the duties to be performed;
- the employer made sure that the knowledge of another language already required from other employees was insufficient for the performance of this employee's duties; and
- the employer has restricted as much as possible the number of positions involving duties whose performance requires knowledge or a specific level of knowledge of a language other than French.
Should an employer not be able to make this demonstration, the requirement to have knowledge or a specific level of knowledge of a language other than French of an employee will be considered a prohibited practice under the Charter which can found a claim in damages.
Prohibited Sanctions and Other Retaliatory Measures
Bill 96 provides that an employer may not impose a sanction or take reprisals against an employee, in particular, for any of the following reasons:
- the employee has demanded that the right relating to language of work be respected;
- to deter the employee from exercising a right relating to language of work;
- the employee does not have knowledge or a specific level of knowledge of a language other than French, where the performance of his/her duties does not require it;
- the employee has taken part in meetings of, or carried out tasks for, a francization committee or a subcommittee of that committee;
- the employee has, in good faith, communicated information to the Office québécois de la langue française (the "Office") or cooperated in an investigation following a breach of the Charter.
Bill 96 also establishes a new process for complaints against employers under the authority of the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST"). Any persons who believe that they have been the victim of a prohibited practice will be able to file a complaint with the CNESST within 45 days of the event.
The CNESST may then, with the agreement of the parties, appoint a person who will endeavour to settle the complaint. If no settlement is reached, the complaint will be referred to the Tribunal administrative du travail. It is worth noting that the CNESST may represent an employee that is not a member of an association of workers.
Workplace free of discrimination or harassment
Bill 96 explicitly provides for the right of employees to work in an environment free of discrimination or harassment with respect to the use of French. In addition, employers will be required to take reasonable steps to prevent such conduct and, if such conduct is brought to their attention, to make it stop.
Bill 96 also provides for a new complaint process that will allow employees who believe they have been victims of such conduct to file a complaint with the CNESST within two years of the date of the last incidence of the offending behaviour.
Francization of companies employing 25 or more persons
Bill 96 provides that companies employing between 25 to 49 persons in Québec will now be subject to the Charter francization process and will therefore have to formally register with the Office.
However, these companies will benefit from a three-year adjustment period to comply with these new requirements following Royal assent of Bill 96. Currently, only companies with 50 Québec employees or more are subject to francization requirements under the Charter.
(i) Analysis of the employer's language situation
Bill 96 also proposes to shorten the time period within which a company must submit an analysis of its language situation to the Office. This period will be reduced from six months to three months following the date of issuance of the registration certificate.
(ii) Francization Committee
Bill 96 states that all companies subject to the Charter and registered with the Office may now have to form a francization committee. However, companies employing fewer than 100 persons will not be required to form such a committee unless the Office orders them to do so, after having determined that the use of French is not generalized at all levels of their company.
Thus, as under the current regime, companies with fewer than 100 Québec employees will not be automatically required to form a francization committee. However, Bill 96 broadens the Office's authority to order that a francization committee be formed in companies employing 25 to 49 persons, whereas currently it can only do so for companies employing 50 to 99 persons.
(iii) Francization committee meetings
The francization committee will continue to meet at least once every six months. However, Bill 96 requires the committee to ensure that minutes are taken at each meeting, which must then be transmitted to the company's management and to the Office.
(iv) Publishing the list of the francization committee members
Besides providing a list of the francization committee members to the Office, Bill 96 states that this list will have to be circulated among the company's staff, through signs and posters or by any other means deemed appropriate by the companies.
(v) Obligations of the francization committee
Bill 96 also clarifies the role and responsibilities of the francization committee by listing the various obligations it must meet.
These include the obligation to:
- designate a representative to the Office;
- ensure that the analysis of the linguistic situation is carried out, including the drafting of a report setting it out;
- see to the development of the francization program that companies must adopt, supervise its implementation and, where necessary, see to the preparation of a report on it;
- ensure that the use of French remains generalized within the company and see to the drafting of the three-year report; and
- at the request of the company's management, give its opinion on the employer's practice of requiring a person to have knowledge or a specific level of knowledge of a language other than French in order to keep or obtain a position on the steps taken to avoid imposing such a requirement.
(vi) Developing a francization program
Bill 96 proposes to shorten the period within which a company must submit a francization program to the Office. Under the current regime, when the Office considers that the use of French is not generalized at all levels of a company, the Office will notify the company that it must adopt a francization program. Under Bill 96, the time limit for completing and transmitting the francization program to the Office will be reduced from six to three months following receipt of the notice.
Furthermore, under the current regime, a company that has been required to adopt a francization program within its company must submit reports to the Office on the implementation of its program every 24 months, in the case of a company employing fewer than 100 persons and every 12 months in the case of a company employing 100 or more persons. Bill 96 standardizes the frequency of reporting to 12 months, regardless of the number of employees of the company.
Finally, Bill 96 also stipulates that the company must circulate its francization program and report on its implementation to its employees.
(vii) Permanence of the francization
Under the current regime, when a company holds a francization certificate, it must submit a report to the Office every three years on the progress of the use of French within the company.
In this regard, Bill 96 provides that, if the Office considers, after examining the three-year report, that the use of French is no longer generalized at all levels of the company, it may order the company to develop and implement an action plan to remedy the situation. The Office is required to notify the company in writing and give it at least 15 days to submit its observations. The company will then have two months to submit its action plan to the Office.
(viii) List of non-compliant companies
With Bill 96, the Office will now publish and maintain a list of companies for which it has refused to issue a certificate of registration or suspended or cancelled a certificate of registration or a francization certificate.
What about federally regulated businesses?
In 2018, the Government of Canada summarized the application of the Charter in its "Language of Work in Federally Regulated Private Businesses in Quebec not subject to the Official Languages Act" as follows:
That said, the Québec government has indicated that it intends that Bill 96 should apply to federally regulated private businesses although there is no express provision to this effect.
In parallel, the federal Minister of Official Languages, Mélanie Joly, has recently indicated that she intends to introduce a bill to reform the Official Languages Act by the end of 2021.
Me Joly's statement follows the the unveiling by the federal government of its intention to reform the status of Canada's two official languages in a document entitled English and French: Towards Substantive Equality of Official Languages in Canada, published on February 19, 2021. As the Québec government has done in Bill 96 for employers in Quebec, the federal government is proposing to introduce new rights with respect to the language of work in federally regulated private businesses located in Quebec or in other regions of the country with a strong francophone presence. In particular, it proposes to:
- give workers the right to carry out their activities in French;
- require employers to communicate with their employees in French; and
- to prohibit discrimination against a worker solely because he or she speaks French or does not have sufficient knowledge of a language other than French.
While it is unclear when Bill 96 will come into force, it seems clear that the adoption of the proposed amendments will place a greater burden on companies doing business in Québec, particularly those with 25 to 49 Québec employees, which will now be subject to the francization requirements of Charter.
It will also be interesting to follow the progress of the federal government's reform of the Official Languages Act over the next few months and the potential implications for the language of work of private businesses under federal jurisdiction operating in Quebec or in other regions of the country with a strong francophone presence.
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.