Canada: Adoption Of Bill No 176: An Act To Amend The Act Respecting Labour Standards And Other Legislative Provisions Mainly To Facilitate Family-Work Balance

On March 20, the Quebec Minister of Labour introduced Bill 176 (the "Bill"), amending the Act respecting Labour Standards (the "LSA"). The Bill proposed sweeping changes to the LSA.

The Committee on Labour and the Economy of the National Assembly of Quebec (the "Committee") completed its detailed study of the Bill on June 6 and proposed several amendments to the Bill. On June 12, the National Assembly unanimously adopted the Bill, as modified by the Committee.

For a detailed review of the Bill before the Committee's amendments, we refer you to a newsletter that we published on April 30, 2018.

You will find below a summary of the most important amendments proposed by the Committee that are part of the final legislation.

1. Absence due to sexual violence

Sexual violence will now be a justification for an absence from work (s. 79.1).

2. Psychological and sexual harassment

The psychological harassment prevention and complaint processing policy now expressly required by the law will have to incorporate a section dedicated to "conducts manifested by sexual words, acts or gestures".

The delay to file a complaint for harassment has been extended from 90 days to two (2) years "of the last incidence of the offending behaviour" (s. 123.7 LNT). This means that, according to the case law that developed under the previous 90-day delay, a complaint could be filed for behaviour that occurred years before, as long as the last incidence of the behaviour occurred within two (2) years of the filing of the complaint. This represents a major modification to this recourse that would facilitate filing of complaints to the CNÉSST by employees (or former employees) who believe they have been the victim of psychological or sexual harassment. This amendment will no doubt complicate the investigation work of the CNÉSST and that of the employers.

For unionized employers, this amendment means that the delays provided in collective agreements related to the filing of a grievance for psychological or sexual harassment will automatically be extended to two (2) years from the last incident by the effect of the law. This modification could allow an employee, whose complaint or grievance was dismissed on the basis that it was filed outside of the 90-day delay, to file a new complaint or a new grievance as long as the last incidence is within two (2) years.

3. Personnel placement agencies and recruitment agencies for temporary foreign workers

As we reported on April 30, all personnel placement agencies and recruitment agencies for temporary foreign workers shall be required to obtain a licence issued by the CNÉSST and the LSA shall prohibit clients of these agencies from retaining the services of agencies that do not hold a valid licence. The word "voluntarily" was removed from the Bill, which seems to imply that employers could be held liable for retaining the services of an agency that does not hold a valid licence, without any requirement to prove the employer's intention and/or knowledge. The final version of the law provides that the list of agencies holding a valid licence will be published by the CNÉSST and that any existing agency that applies for a licence within 45 days of the bylaw coming into force will be authorized to continue to exercise its activities until the CNÉSST renders a decision on their application.

The government will have the power to adopt a regulation to "provide for any other measure aimed at ensuring the protection of the rights of the employees concerned by this section" (s. 92.7).

4. Differences in treatment related to pension plans or other employee benefits based on hiring date

The Bill provides that any employee who has been the victim of a difference in treatment related to pension plans or other benefits based on the hiring date may file a complaint with CNÉSST (s. 121.1 and following). The final version of the law has extended the delay to file such complaint from 90 days to twelve (12) months "of the distinction becoming known to the employee".

As mentioned in our newsletter dated April 30, 2018, the transitional provision maintaining existing differences in treatment could be the source of workplace conflict, in particular in the case of modifications to pension plans that already established a disparity in treatment based on hiring date. In addition, we believe that this transitional provision will likely be contested on the basis that it constitutes age discrimination. In its memorandum filed at the Committee, the Commission des droits de la personne et des droits de la jeunesse recommended this transitional provision be removed from the Bill for this reason, among others¹.

It is worth noting that all opposition parties have contested the transitional section of the Bill as drafted. The Parti Québécois and Québec Solidaire have both demanded that all disparity in treatment based on hiring date be immediately abolished. The Coalition Avenir Québec proposes that a regulation be adopted which would provide that any disparity in treatment cannot be maintained in any collective agreement that is signed after the Bill comes into force. A change of government following the provincial election this fall could therefore lead to further modifications to the transitional provision.

Note that many of the modifications to the LSA will only come into force on January 1, 2019. The newsletter published on April 30, 2018 specifies the date of coming into force of the various amendments.

Footnotes

1 Commission des droits de la personne et des droits de la jeunesse, Mémoire à la Commission de l'économie et du travail de l'Assemblée nationale – projet de loi n^o 176, pp. 63 to 66, May 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.