Update on the amendments to the Act respecting Labour Standards (ALS) in Québec

Bill 176 (an Act to Amend the Act Respecting Labour Standards and other legislative provisions primarily to facilitate family-work balance) was finally adopted by a parliamentary commission by the National Assembly last June.

It should be noted that the bill came into force on the date on which it was signed; on June 12, 2018. However, certain provisions will only take effect on January 1, 2019. Here is a summary of the nine key points to remember.

1. There is an increase in the number of days of paid annual leave 

   Employees will now be entitled to three weeks of paid vacation after three years of continuous service. Currently, employees are entitled to this third week of paid vacation only when they have accumulated five years of continuous service.

2. Recognition of caregiver status 

   The Act as adopted now recognizes the status of a caregiver. It allows an employee to use it if they become a caregiver for a family member, but also for those who have acted as foster parents.With this in mind, the Act was amended to allow an employee to be absent for 16 to 36 weeks over a period of 12 months when he or she acts as a caregiver.

3. Ban of differential treatment: so-called orphan clauses 

   An “orphan” clause is any clause in an employment contract that provides different salary treatment for certain groups of employees, particularly with respect to social benefits and pension plans. Currently, these clauses are not prohibited, which allows employers to offer different terms to their employees based on their hiring date.From now on, these “orphan” clauses will be prohibited and an appeal to the Tribunal administratif du travail du Québec may be submitted by an employee who believes he or she has been discriminated against on the basis of their hiring date with respect to pension plans or social benefits.This complaint must be filed within one year after the observation of differential treatment. However, the law does not act retroactively and it preserves the contractual terms negotiated and signed before its enactment (June 12, 2018).

4. Duration of the Work Week 

   The authorization of the Commission will no longer be necessary to reach an agreement on the staggering of hours, provided that it is for a maximum of six months, that it is recorded in writing, that the hours are spread over a maximum period of four weeks and that a work week does not exceed the standard provided for in the Act or the regulations by more than ten hours.In addition, the employee or employer may terminate the agreement by giving notice at least two weeks’ notice prior to the scheduled end of the agreed staggering. The rule that the average hours worked during that period must be equivalent to the standard provided for in the Act or the regulations remains in effect.

5. Right to Refuse to Work 

   From now on, an employee may refuse to work in the following two situations:

   1. If he or she is asked to work more than two hours beyond their usual daily hours of work, rather than four, such as before June 12, 2018.
   2. If he or she has not been informed at least five days in advance that they would be required to work overtime, except where the nature of their duties require them to remain on standby or, in the case of an agricultural worker, when their services are required within the limits set by the law.

6. Temporary Employment Agencies 

   A new section has been added to the LSA specifically targeting temporary employment agencies. The agencies will now need to obtain a permit before offering their services. This permit will be issued by the Commission des normes, de l’équité, de la santé et de la sécurité du travail. These latter measures are part of the protests aimed at providing better protection for the targeted workers – often immigrants and undocumented workers.The new section also provides that agencies will not be allowed to pay a lower pay rate than that which is paid to the company’s employees. Companies will therefore now be jointly responsible with the agencies with which they do business.Following the tabling of the draft regulation (not yet introduced) regarding the mandatory permit for employment agencies and temporary foreign worker recruitment agencies, we can anticipate that:

   1. Two categories of permits would be proposed: one for employment agencies and one for temporary foreign worker recruitment agencies.
   2. The permits would be valid for a period of two years.
   3. The Government intends to make the issuance, renewal and maintenance of the permit subject to certain conditions, including the payment of permit fees and, for employment agencies, it will be prohibited to charge fees to agency workers and to impose contractual restrictions or fees to agency workers or a corporate client in order to prevent them from establishing an employment relationship.
   4. For agencies recruiting temporary foreign workers:
      1. It will be prohibited to ask a temporary foreign worker to entrust to the agency the custody of their personal documents or property and to charge recruitment fees other than those authorized under a Canadian government program.
      2. No additional obligations for the Agency’s corporate clients would be added to the regulation.

This whole section will only come into force when a regulation is issued adopting the terms and conditions of the permit’s issuance. We are still awaiting the draft regulation and will be preparing a brief to highlight the constraints that these new legislative and regulatory obligations would have on our members.

7. Recognizing certain situations for leave of absence purposes
   The Act has been amended to better define a leave of absence, a sick leave and a leave of absence for family obligations that the LSA now allows employees, in certain circumstances. The Act provides for two days of paid leave of absence for “family obligations”.Thus, the employee who has three months of continuous service will be entitled to the payment of two days of leave of absence. Prior to the amendments, the LSA provided for ten days of unpaid leave of absence for “family obligations”. However, the bill expressly provides for the right of the employer to ask the employee to provide a document certifying the reasons for such leave of absence.In addition, the Act provides for the possibility for an employee to claim a period of twenty-six weeks of leave of absence without pay due to illness, organ donation or accident. From now on, this leave of absence without pay will be available to employees who are victims of domestic violence.

   In the event of the death or funeral of their spouse, their child, the child of their spouse, father, mother, a brother or a sister, the employee will be entitled to two paid days rather than one as well as three days without pay rather than four.

   In the event of the death or disappearance of a minor child, a leave of absence of two years (without pay) may now be granted. This measure will also be available in case of suicide of the spouse, child (regardless of age) or one of their parents.

   On the occasion of the birth, adoption of a child or in case of termination of pregnancy as of the 20^th week, any employee, regardless of seniority, will be paid for the first two days of the leave of absence.

8. Harassment
   Under the new provisions, sexual harassment will now be specifically referred in the Labour Standards Act as a form of psychological harassment. With this in mind, all employers will have to adopt a policy on the prevention and processing of complaints including, among other things, a section on misconduct manifested by words, acts or gestures of a sexual nature.In addition, in the event of a complaint relating to sexual misconduct, the CNESST may, with the employee’s consent, transmit to the Commission des droits de la personne et des droits de la jeunesse any complaint concerning discriminatory conduct filed in accordance with the law’s section on remedies for psychological harassment.The Act also stipulates that the time limit for filing a psychological harassment complaint be changed from 90 days to two years.

9. Liability of Company Directors and Officers
   A new provision regarding the personal liability of company directors and officers who violate the law has been added. They may be presumed to have committed the offence unless they can demonstrate due diligence. This is a reversal of the burden of proof.

In Conclusion

As mentioned, Bill 176 provides for major amendments. Some were effective as of the date of the bill’s signing, June 12, 2018, while others will come into force on January 1, 2019. In case of ambiguity or questions, we invite you to contact us directly or a member of our team.

Should you have questions or concerns, please do not hesitate to contact
Jean-François Belleau, Director, Government Relations at 514-982-0267 or at jfbelleau@cccd-rcc.org.