On March 20, 2018, the Quebec government tabled Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance to facilitate work-family balance and to modernize and reform Quebec labour standards. Labour Minister Dominique Vien said, "The many proposed changes take into account the new realities of workplaces, such as the changing family patterns, the aging population and ensuing retirements, and would encourage the retention of staff in a context of scarcity of labour." Measures in the Bill include:
1. Equal pay for equal work
The Bill will prohibit setting different wage rates fixed solely on the basis of the employment status of employees. In addition, no personnel placement agency may remunerate an employee at a lower rate of wage than that granted to the employees of the client company 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.
2. Payment of wages and exemptions from Quebec labour standards
The Bill now mentions the possibility of paying wages by cheque or bank transfer (direct deposit).
Student athletes whose membership in a sports team is conditional on the continuation of a school training program would be excluded from the application of the Act.
3. Hours of work and overtime
- The Bill would relax the rules on staggered hours of work (averaging agreements) for the purpose of calculating overtime. Currently, an employer must first obtain authorization from the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) to average the hours of work of its employees on a basis other than weekly. The Bill provides for the possibility of averaging work hours without the authorization of CNESST. For this to happen, the employer will have to obtain a written agreement from employees for a maximum period of six (6) months, averaging hours of work over a maximum period of four (4) weeks. A workweek may not exceed the standard provided for in the law or the regulations by more than 10 hours.
- With some exceptions, employees will be allowed to refuse to take a shift, if their work schedule is not posted five days in advance. The exception limits this right of the employee, where "the nature of his or her duties requires him or her to remain on availability or his or her services are required within the limits laid down." This paragraph refers to the maximum number of hours that can be imposed on the employee on a daily basis or over a 24-hour period.
- The bill reduces to two the number of overtime hours an employee is required to accept that amounts to more than his or her daily hours of work if he or she has not been informed in advance.
4. Statutory (public) holidays
Currently under the Act, an employee is entitled to a paid holiday only if that day falls on his or her normal working day and the employee is credited with 60 days of uninterrupted service. For example, if someone works Monday, Wednesday and Friday and the holiday falls on a Thursday, no public holiday payment need be paid. The Bill would remove the notion of "working day" in order for an employee to be eligible to receive a paid holiday and would eliminate the criteria of uninterrupted service of 60 days for entitlement to public holiday pay. The Bill will also require employers to pay public holiday pay if an employee is on vacation during said holidays or if such a day does not coincide with the employee's regular work schedule.
- Workers will be entitled to three weeks of vacation after three years of continuous service, rather than having to wait five years.
- The Bill now specifies that vacation pay may be paid to the employee not only "in one lump sum" before the beginning of the holiday, but also "according to the terms and conditions applicable to the regular payment of his or her salary.
6. Statutory leaves
- Absence for domestic violence under section 79.1: The current Act provides for the possibility for an employee to be absent from work for "a period of not more than 26 weeks in a 12-month period due to illness, organ or tissue donation for transplant purposes or accident" (section 79.1). The Bill proposes to extend this right to an employee who has been the victim of domestic violence. The Bill also abolishes the requirement that the employee have three months of continuous service to be entitled to this leave, and therefore, the employee can benefit from this right as soon as he or she is hired. In addition, the Bill provides that an employee will be entitled to be remunerated for the first two days of absence taken annually pursuant to section 79.1. The right to be paid 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 of family members, concept of a "relative" (section 79.7): 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). Bill 176 now recognizes the status of a caregiver and allows the employee to use it not only for family members, but also for those who have acted as foster parents. Bill 176 makes the following changes to the leave of absence under 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."
- 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 produce a document attesting to the reasons for the absence.
- 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 Act currently prohibits an employer from dismissing, suspending or transferring an employee who has three months' service for the reason of absence due to illness or accident, provided the absence is for not more than 17 weeks within a 12-month period. Currently, if the absence due to illness or accident exceeds four weeks, the employer has the option of reinstating the employee in his or her former job or transferring the employee to a comparable position. The Bill will abolish this rule and the employee's former position will be guaranteed. The Bill also makes the following changes to the leave:
- 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 fatal, 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).
- Addition of paid days for a death or funeral: The Act currently provides that an employee may be absent from work for five days because of the death or funeral of certain relatives, and that one of those days is to be remunerated. The Bill proposes that in the event of the death or funeral of the employee's spouse, child, child of his or her spouse, father, mother, brother or a sister, the employee will benefit from two days paid instead of one and three unpaid days instead of four.
- Death or disappearance of a minor child: In the event of the death or disappearance of a minor child, an absence of two (2) years may now be granted. This measure will also be accessible in case of suicide of the spouse, a child (regardless of age) or one of his parents.
- On the occasion of the birth, adoption of a child or where there is termination of pregnancy after the 20th week, any employee, regardless of seniority, will be paid for two (2) first days of absence.
6. Psychological harassment
- The Bill clarifies that sexual behaviors, words, acts or gestures may constitute a form of psychological harassment.
- Employers will now be forced to adopt a policy on psychological harassment and treatment of complaints.
- The Bill amends the current section 123.6 of the Act, which provides for employee recourse in the event of psychological harassment within 90 days of the event to the CNESST. Under the Bill, CNESST will have to advise the Commission on Human Rights and Youth Rights if a complaint of harassment concerns sexual conduct. If the complaint of the employee is determined to be well founded, an employer may be ordered to cease and desist. If the employee resigned as a result of the harassment, the commission may order reinstatement with reimbursement of all lost wages-or damages for loss of employment-as well as moral and punitive damages and payment for counselling services.
7. Disparities in treatment – pension and benefits plans
The Bill prohibits any distinction with respect to pension plans or other employee benefits that affects employees performing similar tasks in the same establishment, if the distinction is made solely on the basis of a hiring date.
The Bill also establishes a specific remedy against such differences in treatment. An employee must file a complaint with the CNESST or the Administrative Labour Tribunal (ALT) within 90 days of becoming aware of the distinction. Employees subject to a collective agreement or a decree may file a complaint with the CNESST if they demonstrate that they have not exercised any recourse arising from the applicable collective agreement or decree or that, having done so, they discontinued proceedings before a final decision was rendered.
If the CNESST/ALT considers that the employee has been the victim of a prohibited distinction, it may render any decision it believes fair and reasonable, including an order that an employee be made a member of a pension plan.
The transitional provisions of the Bill provide that disparity clauses that existed before the coming into force of the new labor standards will not be affected and will remain valid. Moreover, this change would not apply retroactively to distinctions which existed the day prior to the Bill coming into force, which date is yet to be determined.
- Currently, employees (other than upper management) who have at least three years of uninterrupted service with an employer may avail themselves of the provisions of the Act, which allows for a complaint to be filed against their former employer and to seek reinstatement in the event of dismissal without good and sufficient cause. The requisite uninterrupted service with the employer is proposed to be shortened to two years in order to exercise this recourse.
- Recourse of failure to provide notice requirements for group termination in addition to any individual notice of termination or payment of severance in lieu thereof required to be given under the Act will also be amended. There is currently no recourse in the event an employer violated the law. Under the Bill, for employees who are dismissed under the group termination provision and are not given the required notice nor permitted to work during the notice period, the CNESST would be authorized to pursue the employer for the equivalent of what the employees would have earned had the notice requirements been respected.
9. Placement agencies and hiring of foreign workers
- The Bill includes an obligation for staff placement agencies and temporary foreign worker recruiting agencies to hold a licence issued by the CNESST.
- The Bill renders placement agencies and enterprise clients jointly and severally liable for the monetary obligations determined by the Act or regulations.
- The Bill also imposes various obligations on employers of temporary foreign workers, including that:
- Agencies that recruit temporary foreign workers will be prohibited from withholding workers' documents, such as passports.
- An employer who hires a temporary foreign worker must, without delay, inform the Commission of the worker's date of arrival, of the term of his contract and, if his departure date does not coincide with the end of the contract, of his departure date and the reasons for his departure. The employer must in addition record that information in the registration system or register kept by the employer.
- No employer may charge a temporary foreign worker fees related to his recruitment, other than fees authorized under a Canadian government program.
10. Fines and penalties
Every person who contravenes section 92.5 or 92.6 (placement agencies and recruitment agencies) is guilty of an offence and is liable to a fine of $600 to $6,000 and, for any subsequent conviction, to a fine of $1,200 to $12,000.
The Bill might not be put to vote before the end of the session and elections are to be held on October 1st, 2018. We will keep you abreast of the progression of the Bill into law.
Next week we will discuss Quebec's parental insurance changes in Bill 174 that also include changes to QPIP benefits and parental leave under the Labour Standards Act.