In an article this weekend, the Montreal French-language daily, La Presse, reported that the provincial Liberal government is looking to amend the Quebec Labour Code in response to labour turmoil at the Journal de Montreal (another Quebec daily). In that dispute, the striking union argued that the Journal de Montreal’s management got around the anti-scab legislation by contracting out work to journalists working from home. The law, as it is currently written, does not prohibit this kind of technological circumvention as it generally only bars the use of employees from an employer’s establishments (with many nuances) while a strike is ongoing. According to La Presse, the Liberals are looking to change that in order to “restore” the balance of power in a labour dispute. Quebec is one of the only jurisdictions to have anti-scab legislation. Does strengthening it make sense?

As an Anglophone employment and labour lawyer from Quebec, I don't often get to read decisions in my native language. Recently, Justice David Collier, also a Quebec Anglophone jurist from my ex-firm Norton Rose Canada LLP, rendered an employment law decision which merits some attention in the "Rest of Canada" – both because it's well-written and sound but also because it is a rare English-language decision from La Belle Province which summarizes civil law employment law concepts in English.

In Gilman c. Fieldturf Tarkett Inc., 2012 QCCS 1429 (CanLII), Justice Collier deals with applications from several disgruntled field turf company ex-employees who felt that they were unjustly deprived of their year-end bonuses because they were terminated or forced to resign prior to the eligibility date. Justice Collier concluded that the bonuses had been earned and could not be withheld due to their termination or forced resignation as they would have received them had they been provided with appropriate reasonable notice. Justice Collier explained that "[t]he law in Québec concerning the payment of bonuses is similar to that in other Canadian provinces… [a]n employee is entitled to receive a bonus owed during a notice period when the employee has a reasonable expectation, based on past practice, that it will be paid."

My colleagues from the RoC may be surprised to find that the law in Quebec is not much different from the common law. The decision is a good read for anyone interested in learning about the basics of Quebec employment law in English.

In my new role as in-house counsel for a business with operations across Canada (and as a Quebecker), I've been doing a lot of explaining about la belle Province. My American colleagues are used to dealing with a Federal version of our provincial labour codes that applies (generally) in a uniform manner across all of the United States. In Canada, as we know, labour relations are provincially regulated and accordingly, differ from one province to another (save for federally regulated employees). However, the laws of Quebec are different from other provinces and allow for easier access to unionization and stronger protections for striking workers. The differences have been discussed in a previous post.

What is the impact of these differences? Is it time for this model to change? Do Quebec's stricter labour laws serve as disincentive for employers to open and operate businesses in Quebec? In researching the subject, I came across this article written in 2005 by the Montreal Economic Institute (MEI). While it's a little dated, the laws are the same. The article concludes as follows:

The available data show that a strong union presence is not necessarily an asset for workers as a whole nor for the economy in general since it is accompanied by lower levels of employment and investment. [...]

It is not unionization as such – nor the right of association – that causes these effects, but rather union privileges and the resulting constraints. To the extent that unions have privileges and use them either to set wages higher than would be the case without them, or to impose constraints that threaten the profitability and viability of businesses, they diminish employment and general prosperity.

What are your thoughts? Does Quebec's stronger Labour Code promote unions and unionization at the expense of employers (and employment)? Should Quebec be a model for the rest of Canada or vice versa?

Earlier this month, I published an article in the Montreal Gazette regarding my departure from private practice (at Norton Rose Canada) and my move to an in-house counsel position and the legal ramifications involved therewith. This post is an abridged (inproved?) version of the full article, which can be found here.

As an employment and labour lawyer, I was very conscious of wanting to do the “right” and legal thing in accepting the offer from my new employer and letting my firm know that I was leaving. Legal issues aside, I loved where I worked and wanted to treat them with the same respect that I was treated with. However, there are important legal issues to consider when resigning from a job. My recent departure gave me the opportunity to think about them from a truly personal perspective.

First of all, in Quebec (and, in most cases, the common law provinces), employees cannot be dismissed without cause without some form of reasonable notice. The inverse is also true. The law often requires employees who resign to give their employers reasonable notice before they leave. The “two-week” rule people often refer to is not set in stone in Quebec. For example, if you are managing an important project and decide to leave in the middle of it, you can be required to give more notice. In the same way that an employee can sue an employer for insufficient notice, an employer can also sue an employee for the same thing. If the employer can prove that damages were suffered (i.e., the project failed due to the unannounced departure of a key employee), the employee could be on the hook for a significant sum of money.

Similarly, even if an employee does not sign a non-competition or confidentiality agreement, in Quebec, the law still obligates them to keep confidential (and not use) information they acquired during their employment. This so-called “duty of loyalty” persists for a reasonable period after employment. For example, it would be illegal to take confidential client lists and pricing information to a competitor. Employers will often file injunctions and suits for damages to protect their interests. It can be incredibly expensive for an employee to defend him or herself against such claims.

That said, I didn’t and won’t run into any of these problems. I gave my firm the notice they requested and closed out and transferred all of my files. In return, they treated me with respect and I will keep the wonderful friends and colleagues I made there.

On a Slaw-related note, I look forward to continuing to write, this time from the perspective of an in-house employment and labour lawyer.

Recently, I made a major life change. After having been at my firm, Norton Rose Canada, for a number of years, I accepted an offer to become senior counsel, employee relations, for a major Canadian retailer. My focus is going from a mostly Quebec-based practice, to one with Canada-wide scope.

In the same vein, I've decided to change the focus of the blog I created (the Quebec Labour Law Blog) to give it a national and international scope. I have the benefit now of having collaborators from ex-colleagues from across the Norton Rose Group (Australia, South Africa, Germany, France, etc.) Indeed, labour issues are no longer confined to provinces or states. Unions, governments and employers all now engage in sophisticated labour strategies that cross borders and continents.

I believe that the newest iteration of the blog (co-edited with my friend Genevieve Lay, also a contributor to this site), now known as the International Employment and Labour Law Blog, will help provide a forum for both employees, employers, HR professionals and employment and labour lawyers to learn and discuss about transnational issues and pick up on new trends.

Please have a look and let us know what you think!

A recent article in Maclean's magazine sheds light on the labour situation in Québec and, in particular, the power and leverage that unions enjoy. Full disclosure: I was interviewed for the article and am cited.

In it, Alex Ballingall describes the saga of a labour battle between the enormous CSN and a small chicken restaurant, the "Au Roi du Coq Rôti" (loosley translated as "King of the Roast Chicken"). The work stoppage lasted over three years and hurt both the employer and the employees. As Mr. Ballingall and I explained in the article:

“The laws here in Quebec are different than in the rest of Canada, and that gives [unions] a little more leverage,” says Gabriel Granatstein, a labour lawyer for Norton Rose in Montreal. It’s easier to unionize in Quebec than in provinces like B.C., Alberta or Ontario. If a simple majority of employees sign cards saying they want to unionize, it happens automatically, says Granatstein. Elsewhere, workplaces need enough cards and an election. Quebec also has the highest percentage of unionized workers in the country—nearly 40 per cent. And it has “anti-scab” legislation, which prohibits employers from hiring new workers during lengthy strikes or lockouts.

To end the stoppage, "The King" had agreed to pay $145,000 in indemnities, $50,000 in lost wages and agree to an average increase in salaries of 9.75 per cent by 2017.

Québec is the only major province to have both card-check access to unionization and anti-scab legislation. Does this put Québec employers at a disadvantage?

In a decision rendered last week, the Québec Court of Appeal confirmed that if an employer wants an employee to be subject to restrictive coveneants (e.g., not to compete), those covenvants better be signed before the employment starts. In Jean c. Omegachem inc., 2012 QCCA 232, an employee, Mr. Jean, before being hired, agreed via email to sign a non-compete agreement. The details and tenor of that agreement were not provided to him. Three years after he started, his employer asked him to sign the agreement. It was quite broad and would have prohibited him from working for a competitor for 2 years over a very broad geographic area. Mr. Jean refused to sign without compensation. Negotiations broke down and Mr. Jean was terminated for cause – the cause being that he refused to sign an agreement he had undertaken to sign prior to his employment.

The Court of Appeal sided with the employee, stating that not only was the agreement overly broad but that the employee could not be held to sign something surrendering signifiant rights based on a vague undertaking taken three years prior. In the Court's view, the employer had the obligation to have the employee sign at hiring. His refusal to sign three years later could not constitute just cause for dismissal.

The lesson? Make sure they sign before they start!

The latest Statistics Canada job figures have made headlines again in Québec, with the numbers showing that about 3 people are unemployed for every available job (reported the Montreal Gazette today). Some say the numbers are a "blip" others say that they are very "serious debacle". The next quarter's stats will tell us more. While there is much dispute as to the source of these problems, it is clear they are resulting in a very tense labour situation.

Indeed, the new year has brought much high-profile labour strife in Canada, particularly in Québec in Ontario. Those labour disputes have even made international headlines. The Wall Street Journal reported on the situation on January 2:

Labor strife has been on the rise in Canada as unions push back against corporate cost-cutting drives and governments strive to reduce wage and pension costs. "Unions are under the gun; they really are on the defensive and companies, instinctively, are feeling aggressive," said Laurel Sefton MacDowell, a University of Toronto labor-relations expert and historian.

Unions wield immense power in certain industries in Canada and even more in Québec given its "particular" labour laws. Québec is alone among the largest four provinces to have a Labour Code which provides both for "card-check" access to unionization (making it easier to unionize – reflected in Québec's higher unionization rate) and strict anti-scab provisions (making it harded for employers to hold-out during a strike).

In tough economic times, are "defensive" unions helping or hurting the economy? Should companies be entitled to seek concessions at the table? Do Québec's laws make sense when compared with the other provinces?

About three weeks, my colleague and fellow blogger Genevieve Lay wrote a post about the brewing storm in Montreal regarding the Canadiens' appointment of the unilingual Anglophone Randy Cunneyworth as head coach. Perhaps because it was posted shortly before Christmas, Genevieve's post did not garner any comments. However, the debate has intensified, both in the "blogosphere" and in Montreal.

In short, many Québecois feel that the Canadiens should appoint only a bilingual or Francophone coach. Local Québec papers got in the act, calling for the Canadiens' General Manager's head for his insentive decision. In response to the furor, the Canadiens responded on December 19 with a statement basically apologizing (as reported by the Montreal Gazette):

“Although our main priority remains to win hockey games and to keep improving as a team,” Molson’s statement read, “it is obvious that the ability for the head coach to express himself in both French and English will be a very important factor in the selection of the permanent head coach. … We would like to thank all our fans for their understanding.”

On January 3, the GM took it a step further (also as reported by the Montreal Gazette):

"I'm sorry if we upset people," Gauthier said Monday, during one of his media chats which are as rare as a visit from Halley's Comet, "because that certainly wasn't our intention."

"What will happen in the future, at the end of the season, is that we will reevaluate the whole file. As (owner Geoff) Molson said in his communique a week ago, it's very important that our head coach be bilingual. So that will be part of our decision at that point."

It would seem, rightly or wrongly, that the Canadians will favour a bilingual coach. Politics aside, there are legal issues involved in this debate. If Randy Cunneyworth is let go solely because he speaks French, is that discrimination based on language? If so, is it justifiable under the Québec Charter of Rights?

Prof. David Doorey and I engaged in an interesting debate via our respective blogs and there is no need to summarize them on Slaw. See here for Prof. Doorey"s original post and here for mine responding to his. His final (and eloquent) retort is here.

Time for you all to weigh in: Is it discriminatory? If so, is it justified?

As I am in the holiday spirit, I thought it would be good to post a quick reminder about how statutory holidays work in La Belle Province. I'd also be curious to know how this might differ from other provinces or countries altogether.

According to the Québec Labour Standards Act, employers can require that employees work on statutory holidays. However, if they are required to work, employees must be paid an indemnity equal to 1/20 of the four weeks’ wages preceding the holiday, in addition to your regular salary. If the employee makes commission, the indemnity would be equal to 1/60 of the twelve weeks’ wages preceding the holiday.

Part-time employees are managed the same way as given that the indemnity is calculated as a percentage of wages, the amount of hours you work every week does not make a difference.

Employers can also choose to compensate employees with a day off. That day must however be taken within three weeks before or after the holiday.

In Québec, all of this is at the employer’s choice. However, fear not. Most employees do get their "stat" days off!

For more information, the Québec Labour Standards Commission's website provides a wealth of information (in English).

Enjoy the holiday!

The Globe & Mail recently reported on the decision of a senior manager at a Service Canada to ban all forms of visual holiday cheer from all outlets across Québec. While Québec has become an increasingly secular society, this manager's decision prompted a public (and Twitter!) outcry and was quickly reversed.

In short order, the Government was accused of ruining Christmas:

“Why do the Conservatives want to steal the magic of Christmas from employees of Service Canada?” said NDP MP Alexandre Boulerice.

In an effort save Christmas for all Québeckers (and Canadians) and return the "magic", Minister Diane Finley issued a communiqué clarifying that Service Canada employees should feel free to decorate for the holidays.

Who was right? Who was wrong? Should religious decorations have a place in a government office?

In an interesting intersection of two of my favourite areas (law and technology), Apple Insider reported last week that Apple recently announced that it was going to be conducting mandatory union awareness training to educate its employees on "how to deal" with unions. According to the article, the course is described by Apple as follows:

"This course is intended to provide managers with a practical understanding of how unions affect the workplace, how and why employees organize, and the legal do's and don'ts of dealing with unions," … "This is a mandatory class for all new managers, and is required biannually for all managers."

There is no news if this program is coming to Canada. If they try, Apple's mileage may vary as the laws in many of our provinces severly restrict an employer's right to communicate with employees regarding unionization. There is however a debate raging before many labour tribunals as to how much that right can be restricted.

Does training like this have a place in Canada? Should it be allowed?

Whether you call them “executive recruiters” or “headhunters”, they are all engaged in a fierce competition to recruit the ideal candidate to fill out executive or professional positions for their clients.

With a labour shortage that is bound to rise dramatically as baby-boomers begin retiring, headhunting has become increasingly important for the future development of companies and for people seeking new employment. However, the industry has faced challenges. It has been reported that several headhunters have run afoul ethically by, for example, requesting money directly from potential candidates (in exchange for a better recommendation) or revealing confidential information related to their mandates.

One problem stems from the fact that the process of actually becoming a headhunter has yet to be standardized. There is no university degree requirement or certification process that ensures that a headhunter is competent to handle or sensitized to the ethical issues he or she is bound to encounter. In Quebec, the closest thing to a professional order of headhunters is membership in the Ordre des Conseillers en Ressources Humaines Agréés (OCRHA) – which is entirely voluntary. This organization has approximately 8500 members. In a recent interview, its president, Florent Francoeur, estimated that approximately only 30% of its members are currently involved in the hiring process, and not all as headhunters (Interview with Florent Francoeur et Michel Pauzé, La mauvaise réputation des chasseurs de têtes, broadcasted October 13^th, 2011 on L’après-midi porte conseil, Radio-Canada’s radio).

The issue of the behavior of headhunters has however become pressing enough for the OCRHA to issue a Code of Ethics for the Recruitment of Executives. Largely based on the principles enunciated in the Code of conduct for OCRHA Members, it sets out basic ethical guidelines so as to ensure the protection of the public. Developed in consultation with several headhunters, the Code only applies to members of the OCRHA. Members of the Order who do not comply may receive a reprimand from the organization, but non-members are free to do as they please. In the above-mentioned interview, Mr. Francoeur points out that, in her view, employers should require mandatory compliance with the Code when handing out mandates, regardless of whether the headhunter is a member of the OCRHA or not.

Headhunters have been increasingly called upon to play a key role in filling vacancies and ensuring that the best candidate is chosen for a position. Hiring the right people is vital to the success of a company. While it might be difficult in the foreseeable future to control the actions of every single headhunter, the creation of the Code appears to be a step in the right direction and employers should consider making compliance a condition of hiring a headhunter.

Here in la belle province, the announced appointment of an apparently unlingual Supreme Court justice has met with some consternation and criticism. The Barreau de Québec has officially (by letter – linked here) asked the Prime Minister to reconsider his choice.

The Director of the Québec Bar, Mtre Claude Provencher, made the following comments to a French-language blog (my rough translation):

"Bilingualism must be a required competence. It's a question of equality before justice for all Canadians, regardless of their mother tongue."

"We request that the government and the parliamentary committed charged with examining these recommendations not name a unilingual judge. We also again request that the government review the federal legislation in order to enshrine an obligation for the nine Supreme Court justices to master both official languages."

Do you think the Supreme Court should be fully bilingual – if so, to what degree? How bilingual can someone be who was raised in English their whole life?

Recently, the tech world has been buzzing with recent corporate blow-ups involving high level executives. Indeed, recently, Carol Bartz, the then-CEO of Yahoo, was fired over the phone and subsequently publicly denounced her boss as a "doofus". As reported in Canadian Business magazine, Michael Arrington's recent spat with his former employer, AOL, also went swimmingly. Both high-profile terminations had an effect on the employers.

Bartz mainly damaged her own career prospects, but her public outburst reflected poorly on the company. The incident almost certainly hurt employee morale, riled activist investors and added to Yahoo’s legal fees.

Less than a week later, Michael Arrington, founder of influential Silicon Valley blog TechCrunch, hinted via Twitter at discord in parent company AOL while taking his leave of the organization. No profanity this time, just innuendo, but potentially just as damaging.

In my relatively short career as an employment and labour lawyer, I've learned that employees who are terminated fairly and with respect generally don't sue or make a public scene. In both of the cases, the news reports appear to indicate that respect was lacking on both sides. The solution? If you have to fire an employee – do it in person, do it gently and for high-profile employees, think seriously about offering a reasonable amount of money in exchange for their contribution, an iron-clear release and a strict confidentiality undertaking. Regardless, in Canada (unlike in the US), employees are entitled to some notice (or pay in lieu thereof). Paying a fair of amount of notice can be much cheaper and less destructive than publicly litigating a termination.

Jasmine Budak wrote an interesting article about the "dark side" of maternity leave in this month's edition of Canadian Business magazine (the original article can be found here). In it, she addresses the operational difficulties caused to employers by statutory maternity leave protections. Ms. Budak explains the predicament as follows:

Today, the year-long mat leave is standard practice, while parental perks such as salary top-ups, extra health benefits and flextime options have become commonplace expectations, especially among the generation Y. Yet even as employers accommodate parents, particularly in fields that fiercely compete for talent, their concerns haven’t changed much from a decade ago. Many businesses struggle with the financial and efficiency burdens of filling temporary positions, especially if they’re senior or highly skilled roles. They can’t be sure if the new parents will return after their leaves or choose to cut back their workload—or quit altogether. Meanwhile, resentment may brew among remaining staff forced to shoulder extra work demands. Perhaps worst of all, employers can’t even complain. Coming out against parental benefits would be like mourning sweatshops and sexual harassment (my emphasis).

The labour standards legislation of all provinces contains similar maternity leave protections. We employment and labour lawyers often get calls from clients on how to manage maternity leaves and maternity leave replacement issues. Employers are often challenged with trying to balance their operation requirements, their desire to do the "right thing" and their legal obligations. As Ms. Budak points out in her article, it's not an easy balance to achieve.

What do you think? Does the laws, as they are now drafted, pose a problem? If so, is there a solution?

Happy belated Labour Day! With Thanksgiving just around the corner, it is good to review the labour standards applicable to statutory general holidays like Labour day and Thanksigiving day (which will fall on October 10, 2011 this year) for the province of Québec. I have no doubt that there are many Québec-based readers on Slaw.

Although many people actually benefit from a paid day off on these holidays, the Québec Act respecting Labour Standards explicitly sets out the conditions surrounding those payments and what happens when you're required to work on a statutory holiday or how you're paid if you're a part-time employee.

The Québec Labour Standards Commission has very well written English-language website which clearly lays out the requirements for statutory holiday pay. Click here for more details and enjoy the holidays!

For those of you from outside la belle province, you'll note that Remembrance Day is not a holiday in Québec (as it is in most other provinces). I'd be curious to know if anybody has any idea if the Québec legislature ever considered adding it to the list.

It goes without saying that balancing family while working for a "big-law" firm can be a challenge. I am reminded of that on a weekly basis. Other jobs are just as demanding (if not more). It has become de rigueur for employers (especially law firms) to tout their approach to promise a positive work-life balance. However, there are few ways to confirm that an employer's advertising confirms with their employees' reality.

In response to this issue, the Quebec government has launched a unique program: a corporate certification regarding work-family balance. The certification is for all businesses, regardless of their size. It will allow the companies who qualify for certification to be seen as employers of “choice” because of their efforts to promote work-family balance. The Québec Minister for the Family, Yolande James, believes that it will even be a competitive recruitment advantage for certified companies. Indeed, the certified companies can also use the certification symbol of the Bureau de Normalisation du Québec (“BNQ”) for promotional purposes.

The BNQ’s information pamphlet can be downloaded for free and contains several examples of measures that companies can take to promote a better work-life balance. Examples include offering services such as child care in the workplace, the granting of additional leave for family reasons, a compressed work week, a flexible schedule and creating opportunities for employees to telecommute.

Would you be more willing to work for a company with BNQ certification (or another provincial equivalent)?

In early July, the Quebec Court of Appeal upheld the constitutionality of Bill 30, An Act respecting bargaining units in the social affairs sector and amending the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors. The bill was originally declared unconstitional by the Superior Court of Quebec in 2007.

In coming to its decision, the Court of Appeal relied primarily on two Supreme Court decisions: 2007’s Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia and Ontario (Attorney General) v. Fraser, decided in April of this year. Essentially, the Court found that while both the Canadian and Quebec Charters protect the freedom to associate, neither one guarantees any particular bargaining scheme.

Bill 30, which came into force in 2003, reduced the number of bargaining units in the province’s health care sector by over two-thirds, from 3,671 to 1,200. Moreover, the bill restructured the province’s health and social services bargaining units by creating four bargaining units per establishment, with the membership of each unit defined according to a series of job titles. This resulted not only in drastic changes in the membership of each union, but also in the grouping together of many professionals with divergent interests in the same bargaining units. Perhaps most significantly, the bill removed health-care workers’ right to strike, forcing them into interest arbitration if they were unable to successfully negotiate to fruition.

This decision appears to be inline with the above-mentioned recent decisions of the Supreme Court of Canada on the subject. What do you think?

Do flip-flops, exercise shorts, or spaghetti strap tank tops belong in the workplace? An article (in French) in Le Devoir, “Relâchement vestimentaire – Pour en finir avec la «gougoune» au travail”, attempts to answer exactly that. According to the article, Revenu Québec and The Ordre des infirmières et infirmiers du Québec (OIIQ) have insisted that their employees dress appropriately for the workplace, where exercise shorts, tank tops, flip-flops and other overly casual items do not belong. In fact, Revenu Québec sent out a memo to all its employees on the subject of office dress codes as recently as last June. Given the widely-held notion that 55% of all communication is visual, it certainly makes sense for Revenu Québec and the OIIQ, or any other employer for that matter, to be concerned by their employees’ outfits (see the Certified General Accountants Association of Canada statistics).

Not only have Quebec courts recognized a general right of employers to implement a workplace dress code, but s. 85 of An Act Respecting Labour Standards (the Act) implicitly recognizes an employer’s right to require “the wearing of special clothing”. How “special” is another issue… For more information on who exactly is covered by the Act, check the Commission des normes du travail website. Naturally, the rule allowing employers to require special dress does have its limits, both in terms of charter rights and in terms of one’s entitlement to be paid at least the minimum wage. An article (in French) posted on the Ordre des conseillers en ressources humaines agréés website entitled, “L’employeur peut-il obliger un employé à porter une tenue vestimentaire particulière?” comprehensively summarizes the applicable limits.

In terms of “fundamental rights”, an employer is prohibited from adopting a dress code that unreasonably restricts an employee’s freedom of expression, a right guaranteed under article 3 of Quebec’s Charter of Human Rights and Freedoms. Additionally, according to article 4 of the Quebec Charter and article 2084 of the Civil Code of Quebec an employer may not undermine an employee’s dignity. Several Quebec decisions provide helpful guidelines to employers as to the proper implementation of a policy on employee dress. Notably, the following rules were held to violate an employee’s dignity: requiring employees to wear tight shirts, short skirts, and high heels (C.D.P. c. 2632-1661 Québec Inc. (Restaurant la Courtisane – you could guess that a restaurant called “the Courtesan” might try to have its waitresses dress a certain way…), requiring employees to unbutton their shirts (C.D.P.D.J. (Landriau) c. Beaublanc inc. et autres), and requiring employees to wear sheer tops to attract customers (Kirkham et Théorêt c. Bill Edward’s Cheers- Cheers Management (Pointe-Claire)).

Are there dress codes where you work? Are they reasonable?

Recently, the Quebec government released a report entitled "La présence syndicale au Québec en 2010". It revealed that the unionization rate of Quebec's total labour force is of 39.6%. This is the highest rate in North America (by a decent margin). More than 1.3 million workers in Quebec are governed by a collective agreement. The report also mentioned that in the last decade, there has been a decreasing trend of union across North America. Even Quebec's rate decreased from 40.9% to 39.6%.

How is unionization trending in your area?

Following a rotating strike and a lockout, the Act to provide for the resumption and continuation of postal services (the "Act") officially entered into force on Monday night. The Act ends the dispute between Canada Post and its 48,000 employees and imposes “final offer selection arbitration”. Everybody should have gotten some mail yesterday.
The law imposes specific salary increases for the years 2011 to 2014. Unlike all other provisions of the agreement, the parties cannot chose to agree to different salary levels and the arbitrator is bound to include them in the final collective agreement. It is interesting to mention that the increases are slightly lower than the initial offer proposed by the employer at the beginning of negotiations. Indeed, according to the Government, they reflect the wage levels set out in the last collective agreement negotiated with civil servants.

In the coming days, the Minister of Labour will appoint an arbitrator to settle disputes and impose a collective agreement. The parties will be required to submit to the arbitrator a list of issues on which they agreed and a list of issues on which they did not reached an agreement. In addition, each party must submit a final offer of settlement. The arbitrator must choose between, in its entirety, one of the two propositions submitted. However, at any time before the arbitrator renders his decision, the parties may choose to negotiate a new negotiated collective agreement on their own (within the confines laid out by the Act).
The labour dispute and this legislation have been the cause of much dispute, both in Parliament and in the media. What do you think? Was it enacted too soon? Too late? Right on time? Is the Act fair?

As many of you know, the right to freedom of expression is firmly entrenched in both our charters and human rights acts.

The Québec Labour Code contains a sections which have been held in the past to legitimately restrict an employer's right to full and freely express his or her opion. This is particularly the case with regard to sections 12 and 13 of the Code by which an employer is prohibited from interfering in the activities of a union and/or intimidating employees regarding their union activity. Recently, some commissioners from the Québec Commission des Relations du Travail has taken a very restrictive right to an employer's right to freedom of speech – an approach not inline with past decisions.

For example, in the decision rendered by Commissioner Pierre Bernier in Syndicat québécois des employées et employés de service, section locale 298 (FTQ) c. Les Services à domicile de la région de Matane ("Services à domicile Matane"), the dispute revolved around an information meeting held for the benefit of all the employees intended to inform and update them on various work related topics. The CEO was asked about the status of negotiations between the company and the collective bargaining unit. Rather than answer the question directly, the CEO opted to publicly defer the question to the vice-president of the union who then "put on the spot" to respond. She chose not to respond.

This morning, I've awoken to a significant change at my firm. The signs have been changed. New business cards have been issued. Even the stickers in the elevator have been swapped. If you go to www.ogilvyrenault.com, you will be redirected to a new site.

Ogilvy Renault LLP is no more. It is now formally known as Norton Rose OR LLP and is of the Norton Rose Group. I have no doubt we will be informally known as Norton Rose. With more than 2,600 lawyers, the enlarged Norton Rose Group is a now top 10 international legal practice with 39 offices throughout Europe, Asia Pacific, Canada, Africa and the Middle East.

When the announcement was made some months ago, there was a lot of coverage – both in the legal forums and in the mainstream media. Now it's real.

I had hesitated before posting this "news". I didn't want it to be seen as "shameless plug" for my firm. Nonetheless, it is news and I thought it would be good mention on a site like Slaw. To make news is one thing… but what does it mean?

There are indeed a lot of questions – many of which I don't have the answer to you. Nonetheless, I am proud and excited that my firm has taken this step – a first for a Canadian law firm.

Slaw readers are involved and and opinionated. So I ask you all: Will the "international firm" be the new legal paradigm in Canada? Does it even matter to you?

My last post (on the minimum wage vs. a “living wage”) garnered a good amount of discussion. A comment was made to me that it was surprising given that this is a “legal blog” and my post was mostly about a social issue. I see it from a different perspective. I think that our laws are meant to be a reflection of society – after all, they are passed by a duly elected parliament that is supposed to express the “will of the people”. As we all know, this is not always the case. Our parliament does not always express the will of the people. Indeed, many governments are elected by a minority of voters but get a majority of the seats.

Shifting gears, I read Omar Ha-Redeye’s recent post discussing the ABA’s U.S. Memorial Day announcement regarding its pro bono support to veterans. It gave me pause to reflect.

As a serving reservist in the Canadian Forces and one who has had the honour of serving my country overseas, I am always slightly jealous of the recognition that Americans lavish on their veterans and service members. While the Canadian public perception of the military has improved a great deal since we became involved in Afghanistan, the Canadian Forces are still often “out of sight and out of mind” – except when it comes to budget and cost issues.

As a labour and employment lawyer in Québec, I often assist American companies and in re‑working the employment policies for application in Québec. Without fail, all of their policies include provisions that protect military reservists from economic prejudice when they are deployed or are required to attend military training. US law also protects reservists from being terminated if they are deployed for an extended period of time. On top of that, the vast majority of major employers provide some kind of salary “top up” so that service members aren’t financially prejudiced when they go on deployment because the military pays less then their employer.

Canada has recently taken steps to move in that direction. Over the last several years, all of the provinces (and the Federal government) have implemented legislation to protect the jobs of reservists who are deployed and/or who must take part in annual military training. A full description of all provincial laws can be found on the site of the Canadian Forces Liaison Council. Passing this legislation in every province has been an important step and a huge help for reservists.

Nonetheless, I still don’t know of any Canadian employers who “top up” salary when employees are deployed with the Canadian Forces.

Have any of you heard of any? Does anyone have any comments on what, if anything, Canadian employers or legislators should do to help reservists? Again, this is where social issues and the law intersect.

When I started working about 15 years ago, I was paid about slightly above minimum wage, at $6.90 per hour. I worked at large clothing retailer, folding khakis and giving on advice on whether or not a customer looked best in “boot cut” or “loose fit” jeans. Since those halcyon denim days, I have noticed a steady and continual increase in the minimum wage rate in Québec.

Indeed, as the Commission des Normes de Travail helpfully outlines on its site, minimum wage has been steadily progressing from its institution at $4.35 per hour in 1986. As of May 1, 2011, the minimum wage in Québec is now $9.65 per hour (for employees who don’t make regular tips).

Across Canada, the majority of minimum wages rates don’t vary greatly – the lowest hourly rate is $8.00 in Alberta and the highest is $11.00 in Nunavut.

The historical purpose of the minimum wage was to ensure that employees who needed work weren’t taken advantage of and could “make a living” no matter their education level or type of work. It was historically intended to provide a “living wage”. Many say that current minimum wage rates are insufficient to allow to someone to live.

A full-time employee (37.5 hours) in Québec who makes minimum wage will take home $18,817.00 annually. After tax (using this very much unofficial tax calculator), they will net $16,449.30. At the high end, a full-time employee in Nunavut will take home $19,428.67 after taxes.

Is the minimum wage achieving its historical goal of providing a “living wage”? What do you think?

First of all, I’d like to thank Simon Fodden for inviting me to contribute to the site. It really is an honour to be able to contribute to such a well-rounded and popular blog.

Like my colleague Genevieve Lay (who also blogs on the site), I am a labour and employment lawyer at Ogilvy Renault LLP in Montreal. As a firm, we generally only represent employers. In thinking about how to introduce myself to the Slaw.ca community with my first post, I thought it best to talk about what I do and why I do it. Part of that is explaining the role of a management-side labour and employment lawyer.

When I was at law school, many students were polarized when it came to employment choices. Some either wanted to work at “biglaw” firms or argued that going to work for them was akin to “selling out” and working for the “man” (to use an expression my parents are fond of). When I introduce myself to people and explain what I do, they often believe that our job is to fire people and make sure they get as little money as possible. To some people, we are seen just as George Clooney was portrayed in Up in the Air – heartless “downsizers” and legal assassins.

I don’t see my job in that way at all. In fact, I love what I do and see a lot of humanity in the work. First of all, hiring and firing are part of life. Many people identify on a very personal level with their work and losing their jobs can be intensely difficult and emotional. However, whether due to corporate downsizing or performance issues, some employees simply can’t be retained. Employers need advice from specialized lawyers on how to handle this kind of issue. This is where we help. Of course, we also do a number of other things, including developing HR policies, negotiating with unions and advocating for our clients before various labour relations boards.

However, a fair portion of my time is spent advising clients on how to best handle difficult situations before they turn into serious (and expensive) problems. Employees who are treated with respect and are compensated fairly don’t sue. Firing people without cause and without notice will generally lead to a lawsuit of some kind. Given the costs and time involved, nobody wants to litigate a termination. For most people, litigation is and should be the last resort. Accordingly, I always advise clients to err on the side of being generous when terminating employees and negotiating severance. A few extra weeks of pay pales in comparison to the cost of going to trial or arbitration.

Simply put, in my relatively short time as a lawyer, I’ve learned that the “right” thing to do is also most often the “legal” thing to do and the best strategy.

At the end of the day, people are going to be hired and fired regardless of what kind of law I practice. By doing what I do in the way that I do it, I feel I can help bring some humanity and fairness to the process, all the while serving the best interests of our clients. Suffice it to say, I am an eternal idealist and optimist… even though I work for the man.

I look forward to continuing to blog here and thank you for reading. If you're interested in more Québec-specific labour and employment law content, please visit my blog.