On March 20, 2018, Minister Dominique Vien tabled the first version of Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance. This first draft will undoubtedly be subject to discussions and revisions, especially the provisions concerning the regulation of personnel placement agencies, differential treatment, absences from work for family reasons, and additional paid absence for family reasons. Nonetheless, we can already anticipate a substantial impact on employers. Here are some of the main proposals, divided into 8 broad categories:
- Work-family balance
- Paid leaves
- Unforeseen absences
- Differential treatment
- Prevention of psychological and sexual harassment
- Regulation of personnel placement agencies
- Directors and officers liability
- Other interesting proposals
I. Work-family balance
- (NEW) Staggered working hours: Employers and employees may agree on the staggering of working hours on a basis other than a weekly basis, without the authorization of the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “Commission”), subject to the following conditions: (1) the agreement has a maximum term of six months and is evidenced in writing at least 30 days before the beginning of the first period over which hours are staggered; (2) the hours are staggered over a maximum period of four weeks; (3) a work week may not exceed the standard provided for in the law or the regulations by more than 10 hours.
- (AMENDMENT) Refusal to work additional hours: Employees may currently refuse to work more than 4 hours in addition to their regular daily working hours. The amendments would reduce this to 2 hours.
- (NEW) The amendments also provide that employees may refuse to work if they were not informed at least 5 days in advance that they would be required to work, unless the nature of their duties requires them to remain available or if their services are required within the limits set out in section 59.0.1(1) ARLS.
- (AMENDMENT) Family leave: The first 2 days of the 10 days of absence per year to which employees are entitled in order to fulfil obligations relating to the care, health, or education of their child or the child of their spouse would now be paid.Family members would now include “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”.Finally, the proposed amendments would allow employers to request that employees furnish a document attesting to the reasons for their absence, if such request is warranted, for instance, by the duration of the absence.
II. Paid leave
- (NEW) Payment or compensatory holiday: If a holiday does not coincide with an employee’s regular work schedule, employers must pay the indemnity set out in section 62 ARLS or grant a compensatory holiday of one day on an agreed-upon date.
- (AMENDMENT) Annual leave: Currently, employees must have 5 years of uninterrupted service to be entitled to annual leave of 3 consecutive weeks. The proposed amendments would reduce this requirement to 3 years.
- (AMENDMENT) Payment of indemnity for annual leave: Employers are currently required to pay the indemnity corresponding to the employees’ annual leave in a lump sum before the beginning of the leave. Under the proposed amendments, this payment would be made before the beginning of the leave or in the manner applicable for the regular payment of the employee’s wages.In the case of farm workers hired on a daily basis, this indemnity may currently be added to the workers’ wages. The amendments propose extending this exception to cases where it is warranted by the seasonal or otherwise intermittent activities of an employer (i.e. not only farm workers).
III. Unforeseen absence
- (NEW) Absence owing to sickness: Victims of domestic violence would now be entitled to the leave of 26 weeks over a period of 12 months as provided by section 79.1 ARLS.
- (AMENDMENT) Requirements for absence owing to sickness: Currently, employees must be credited with 3 months of uninterrupted service to take advantage of section 79.1 ARLS (26 weeks over a period of 12 months), and the entire absence is without pay. The amendments propose eliminating this three-month requirement (i.e. all employees would be eligible) and also propose that the first two days be remunerated for employees credited with 3 months of uninterrupted service, even if they were absent previously.
- (AMENDMENT) Persons covered by an absence for family reasons: Currently, sections 79.7 to 79.8.1 ARLS only apply to certain members of an employee’s family. Bill 176 proposes expanding the definition of ‘relative’ to also include “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.” The following individuals would also be considered an employee’s relative: (1) a person having acted as a foster family for the employee or the employee’s spouse; (2) a child for whom the employee or the employee’s spouse has acted, or is acting, as a foster family; (3) a tutor or curator of the employee or the employee’s spouse or a person under the tutorship or curatorship of the employee or the employee’s spouse; (4) an incapable person having designated the employee or the employee’s spouse as mandatary; and (5) any other person in respect of whom the employee is entitled to benefits under an act for the assistance and care the employee provides owing to the person’s state of health.
- (AMENDMENT) Absence owing to serious circumstances: Amendments to the length of an absence for family reasons (illnesses or accidents, disappearance or death of a minor child, death as a result of a criminal offence or a suicide) have also been proposed, generally increasing the permitted absence from the current 52 weeks to 104 weeks.
- (AMENDMENT) Absence owing to death: Currently, employees may be absent from work for 1 paid day and 4 unpaid days in the event of the death of certain immediate family members. Under the proposed amendments, employees would be entitled to take 2 paid days and 3 unpaid days off work.
- (AMENDMENT) Remunerated absence for birth of a child: Currently, employees credited with 60 days of uninterrupted service are entitled to take 2 paid days and 3 unpaid days off work for the birth of a child, the adoption of a child, or the termination of pregnancy in or after the 20th week. The amendments propose eliminating this 60-day requirement such that all employees would be eligible.
IV. Differential treatment
- (NEW) Equivalent rate of wage: Employers may not remunerate an employee at a lower rate of wage than that granted to other employees of the same establishment solely because of the employee’s employment status, for instance because the employee came from a placement agency or usually works fewer hours each week. The current exception for employees who earn more than twice the minimum wage is set to be eliminated.
- (NEW) No distinction on the basis of hiring date: The proposed amendments would prohibit distinction on the basis of a hiring date, in relation to pension plans or other employee benefits, that affects employees performing the same tasks in the same establishment.This would not apply, however, to a distinction made on the basis of a hiring date that preceded the coming into force of this new provision.
- (NEW) Recourse against certain differences in treatment (main steps)
- Employee files a written complaint within 90 days of the distinction becoming known to the employee,
- Inquiry by the Commission,
- If no settlement is reached between the parties and the Commission agrees to pursue the complaint, the complaint is referred to the Administrative Labour Tribunal (the “ALT”),
- The Commission may represent an employee before the ALT.
V. Prevention of psychological and sexual harassment
- (AMENDMENT) Definition of psychological harassment: The amendments propose adding sexual harassment to the definition of psychological harassment under section 81.18 ARLS: “For greater certainty, psychological harassment includes such behaviour in the form of such verbal comments, actions or gestures of a sexual nature”.
- (NEW) Psychological harassment prevention and complaint processing policy: The proposed amendments would require all employers to adopt a psychological harassment prevention and complaint processing policy and to make it available to their employees.
- (NEW) Complaint for psychological harassment: When a complaint for psychological harassment under 123.6 ARLS concerns behaviour of a sexual nature, the Commission must notify the Commission des droits de la personne et des droits de la jeunesse without delay.
VI. Regulation of personnel placement agencies
- (NEW) Division regarding Personnel placement and temporary foreign workers (main points)
- Personnel placement agencies will have to hold a licence.
- No client enterprise may retain the services of a personnel placement agency that does not hold a licence.
- A set of obligations and prohibitions will apply to employers that hire temporary foreign workers.
- The personnel placement agency and the client enterprise will be solidarily liable for pecuniary obligations toward the employee.
- (NEW) Equivalent rate of wage: No personnel placement agency may 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.
- (NEW) Penalties for the operation or use of a placement agency that does not hold a licence: The amendments propose introducing penalties of $600 to $6,000 (first offence) and $1,200 to $12,000 (subsequent offence) on anyone who operates or retains the services of a personnel placement agency that does not hold a licence.
VII. Directors and officers liability
- (AMENDMENT) Directors and officers liability: Bill 176 proposes expanding the scope of directors and officers liability in the context of ARLS offences by stating that when an offence is committed, the directors or officers are presumed to have committed it. However, this section expressly provides for the defence of due diligence.
VIII. Other interesting proposals
- (NEW) ARLS exclusion: Athletes whose membership in a sports team is conditional on their continued participation in an academic program are excluded from the scope of the ARLS.
- (AMENDMENT) Terms for payment of wages: Payment of wages by bank transfer no longer requires a written agreement or a decree.
By Caroline-Ariane Bernier, McCarthy Tétrault
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