The National Assembly of Quebec has made wide-ranging changes to the province’s labour standards legislation. The amendments were enacted through Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, which received Royal Assent on June 12, 2018. Employers with operations in Ontario and Alberta, should also be aware that these provinces also made significant changes to their respective employment standards legislation earlier this year.
This is the first of two articles summarizing the key changes in Quebec. This article outlines changes to the scope of liability for directors and officers and new compliance obligations for Quebec employers. The second article will outline changes to leave entitlements.
Directors’ and Officers’ Liability
Bill 176 institutes a significant change in directors’ and officers’ liability under the Act respecting labour standards (“Act”). If an employer commits an offence under the Act, its directors and officers will be presumed to have committed the offence, unless the director or officer can establish that he or she exercised due diligence, taking all necessary precautions to prevent the offence. This change took effect as of June 12, 2018.
Sexual harassment is now expressly included as a form of psychological harassment. This change reflects the government’s desire to codify the existing state of the law, since adjudicators have for years interpreted psychological harassment as including sexual harassment. In addition, employees will have 2 years, instead of 90 days, from the last incidence of offending behaviour to file a psychological harassment complaint. This represents an 8-fold increase in the limitation period. Both changes are in step with the #MeToo movement.
As of January 1, 2019, Quebec employers will be required to adopt a psychological harassment prevention and complaint processing policy. The policy must be made available to employees. Bill 176 also expressly requires that the policy include a section on sexual harassment, delineated in Bill 176 as “behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature.”
Pension and Benefits
Bill 176 prohibits any distinction based solely on hiring date in relation to pension plans or other employment benefits that affects employees performing the same tasks in the same establishment. This signals an important shift for employers. However, any existing distinctions that existed on June 11, 2018 are not subject to the new prohibition.
Personnel Placement Agencies
Clients are now “solidarily” liable with personnel placement agencies for the pecuniary obligations owed to agency employees under the Act and its regulations, including wages, holiday pay, overtime pay, etc. Previously, only the true employer was liable for such obligations. This change may have significant cost implications for many employers. A detailed examination of the contractual arrangements with business partners is necessary to assess and protect against potential liability. This proactive step will enable the employer to adjust its working relationships and the terms of its contracts, among other strategies. Follow this link for further information about how we can assist employers in this area.
Personnel placement agency employees are now entitled to the same wage rate as employees of the client where they perform the same tasks in the same establishment.
In addition, personnel placement agencies and recruitment agencies for temporary foreign workers are only permitted to operate under a license. Further, Quebec employers are prohibited from using the services of such agencies if they are unlicensed. These changes will take effect at a later date with the coming into force of a regulation under the Act.
Equal Pay for Equal Work
Employers are currently prohibited from:
- paying a lower wage rate;
- providing a reduced annual leave; or
- providing a reduced indemnity for annual leave
to any employee who performs the same tasks in the same establishment as other employees, if the differential is solely because he or she usually works less hours each week. Bill 176 also expressly prohibits such differentials if they are made on the sole basis of “employment status”, although this term is not defined in the legislation. This incremental change takes effect on January 1, 2019.
Although not binding in Quebec, employers seeking guidance on the meaning of “employment status” may look to Ontario’s Employment Standards Act, 2000 (“ESA”). The ESA defines a “difference in employment status” in respect of one or more employees, as (a) a difference in the number of hours regularly worked by the employees; or (b) a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status.
Incremental changes were made to the work scheduling provision. An employee may now refuse to work more than 2 hours after his or her regular daily working hours, or more than 14 working hours per 24-hour period, whichever period is the shortest. Further, if notice is given less than 5 days in advance of any proposed overtime, employees may refuse to work the overtime hours, unless the nature of their job requires it. These changes take effect on January 1, 2019.
Given the breadth of the changes under Bill 176, employers should conduct a full scale review of their policies and procedures, with input from legal counsel, to ensure they will be compliant. In doing so, employers should be careful not to overlook issues that may arise in connection with agency employees or matters often administered by third parties, including pension and benefits plans, and directors’ and officers’ liability insurance.
- Many thanks to Jan Nato for his assistance with this article.