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Bulletin

Adoption of Bill 176: Update on Legislative Changes

Fasken
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Labour, Employment & Human Rights Bulletin

After a detailed study by a parliamentary committee, Bill 176 (An act to amend the act respecting labour standards and other legislative provisions mainly to facilitate family-work balance) was finally adopted and assented to by the National Assembly on June 12, 2018.

This bill was adopted as part of the government's policy to "improve Quebecers' quality of life". Among the measures proposed, the government wants in particular to "give more time to families" and thus facilitate family-work balance.

Note that Bill 176 comes into force on the date of assent, June 12, 2018. Immediate attention is therefore required. Some amendments, however, will only take effect on January 1, 2019.

Increased Number of Annual Leaves With Pay

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

Other changes expected: 

• Amendments to ss. 79.7 and 79.16 of the LSA, which cover absences or leave for sickness or family obligations, will allow employees, in certain circumstances, to be remunerated for two of these days according to the calculation formula described in s. 62 of the LSA, i.e., the payment of statutory holidays.[1] Hence, employees with three months of uninterrupted service will be entitled to be paid for two days of absence.  Employees are currently entitled, under the LSA, to 10 days of leave without pay for such family obligations.[2] Bill 176, however, expressly provides that the employer is entitled to ask employees to provide a document attesting to the reasons for such an absence;

• Under s. 79.9 of the LSA, employees can be absent without pay for 26 weeks owig to sickness, an organ donation or an accident. Employees who are victims of domestic violence will now be able to benefit from this right;[3]

• In the event of the death or funeral of a spouse, child of a spouse, father, mother, brother or sister, the employee will be entitled to two paid days instead of only one, and three days without pay instead of four;[4]

• In the event of the death or disappearance of a minor child, employees may now be absent for two years.[5] This right will also be available in the event an employee's spouse, child (regardless of age) or parent commits suicide;[6]

• Upon the birth or adoption of a child, or when a pregnancy is terminated as of the 20th week, every employee, regardless of seniority, will be remunerated for the two first days of absence.[7]    

Recognition of Status as a Caregiver

Bill 176 recognizes the status of Caregiver and allows employees to benefit not only with respect to family members, but also persons who acted as a foster family.

In this regard, s. 79.8 of the LSA is amended so that employees can now be absent for 16 to 36 weeks during a 12-month period when required to stay with a relative or to act as a caregiver.

No More "Orphan" Clauses

Under an "orphan" clause, employees are treated differently with respect to employee benefits and pension plans. These clauses are not presently prohibited, which allows employers to offer employees different conditions based on seniority.[8] If the bill is adopted as is, "orphan" clauses will be prohibited, and employees who believe themselves to be a victim of a distinction based on hiring date in relation to pension plans and employee benefits will be able to bring proceedings before the Tribunal administratif du travail.[9] Any such complaint must be filed within 12 months of the distinction becoming known.[10] This provision, however, will not apply to a contractual clause that was in effect at the time Bill 176 came into force, if applicable. The new provision will have the effect of creating a distinction between present and future employees.[11]

Duration of Work Week

The Commission's authorization will no longer be necessary for an agreement concerning staggered hours provided that the agreement is evidenced in writing, the hours are staggered over a maximum period of four weeks, and that the work week may not exceed the standard provided in the Act or the regulations by more than 10 hours. Moreover, the employee or the employer can terminate the agreement upon at least two weeks' notice prior to the scheduled end of the agreed staggered hours.[12] The rule that the average of working hours during this period must be equivalent to the norm provided in the Act or the regulations remains in effect.

In addition, employees can refuse to work in the two following situations:

  • if they are asked to work more than two hours after their regular daily working hours, instead of four; or
  • if they have not been informed at least five days in advance that they would be required to work, unless the nature of their duties require that they remain available, or, for agricultural workers, when their services are required within the limits set out in paragraph 1.[13]

Other Significant Amendments

Other important amendments include the fact that sexual harassment will now be specifically referred to in the LSA as constituting a form of psychological harassment.[14] In this regard, all employers must adopt a prevention and complaint processing policy, and include a section on behaviour in  the form of verbal comments, actions, or gestures of a sexual nature.[15] Moreover, in the event of a complaint concerning sexual misconduct, the CNESST can, with the employee's consent, refer any complaint concerning discriminatory conduct filed in accordance with the section on recourses in the event of psychological harassment with the Commission des droits de la personne et des droits de la jeunesse.[16]

On this point, we draw your attention to a major additional amendment: the time limit for filing a psychological harassment complaint, previously 90 days under s. 123.7 of the LSA, has now been extended to two years.[17]

A new division will also be added to the LSA devoted specifically to temporary placement agencies. These agencies will have to obtain a licence before they can offer services. Licences will be issued by the Commission des normes, de l'équité, de la santé et de la sécurité du travail. These last measures are in response todemands to enhance protections offered to the employees covered - often immigrants and those without papers.  The division will only come into force after a regulation setting out the conditions for issuing a licence has been adopted. Based on the regulatory intentions concerning the mandatory licence for personnel placement and recruitment agencies for temporary foreign workers were tabled;

• Two classes of licences will be proposed: one for personnel placement agencies and one for recruitment agencies for temporary foreign workers;

• Licences will be valid for two years;    

• The government plans to subject the issue, renewal, and maintenance of licences to certain conditions, in particular a licence fee and:

• for personnel placement agencies:

• a prohibition on asking agency workers for fees; and

• a prohibition on imposing contractual restrictions or fees on an agency worker or a client enterprise for the purpose of preventing them from establishing an employment relationship;

• for recruitment agencies for temporary foreign workers:

• a prohibition on requiring temporary foreign workers to entrust custody of personal documents or property to the agency; and

• a prohibition on requiring fees related to recruitment others than those authorized under a Canadian government program.        

• No additional obligation for agency client enterprises will be added in the regulation.

Finally, a new section will be added concerning the personal liability of directors and officers of a company that commits an offence under the Act: they will be presumed to have committed the offence unless they can establish that they exercised due diligence.[18]

As previously stated, Bill 176 introduces major amendments. Some will enter into force on June 12, 2018, the date of assent, while others will only enter into force on January 1, 2019.[19] In the event of ambiguity or questions in this regard, please contact us or a member of our team directly.


 

[1] Sections 18 and 27, Bill 176.

[2] Section 79.7, LSA.

[3] Section 15, Bill 176.

[4] Section 28, Bill 176.

[5] Sections 21 and 22, Bill 176.

[6] Section 23, Bill 176.

[7] Section 29, Bill 176.

[8] Section 32, Bill 176.

[9] Section 35, Bill 176.

[10] Section 35, Bill 176.

[11] Section 46, Bill 176.

[12] Section 8, Bill 176.

[13] Section 9, Bill 176: This interpretation is based on handwritten notes of amendments in which there is an ambiguity. Our interpretation could change if the official transcription results in a modification.

[14] Section 30, Bill 176.

[15] Section 31, Bill 176.

[16] Section 37, Bill 176. Complaints will be sent in accordance with an agreement between the CNESST and the CDPDJ setting out the terms of cooperation between the two bodies, in particular to warn that the time limit for referring the complaint shall not prejudice the employee.

[17] Section  37.1, Bill 176.

[18]     Section 43, Bill 176.

[19]     In particular, the amendments to s. 41.1 (difference of treatment due to employment status), s. 59.0.1 (refusal to work overtime), s. 69 (increased annual leave for employees with three years of uninterrupted service), s. 74.1 (difference of treatment for the duration of annual leave), ss. 79.2, 79.7, and 79.16 (additional two days paid leave for absences due to sickness or family reasons), ss. 80 and 81.1 (amendments regarding certain absences due to family or parental reasons), and s. 81.19 (requirement regarding a psychological harassment prevention policy), of the LSA will take effect on January 1, 2019. Moreover, the amendments subject to the adoption of a regulation by the government are subordinated to the coming into force of the said regulation (which includes, in particular, the provisions on placement agencies).

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