Recent Modifications to Canadian Employment Laws
By François Garneau
Posted: 13th April 2018 08:35Over the past few weeks, the Quebec Government has introduced legislation to modify the provisions of the Labour Standards Act (the “LSA”). The Quebec Government has also modified the existing anti-corruption legislation, in order to enable the Director of Public Prosecutions (the “DPP”) to intervene directly in civil and administrative proceedings where it has concluded special arrangements with whistleblowers.
The Quebec Government introduced Bill 176; An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance in order to modify many provisions of the LSA. Amongst these changes, and as a reaction to the Me Too movement, the provisions of the LSA dealing with psychological harassment were specifically amended to provide that sexual harassment also constitutes psychological harassment within the meaning of the LSA. This was more of a cosmetic and political move rather than a bona fide juridical amendment, since under existing case law, it was already clearly established that psychological harassment encompassed sexual harassment. In addition, employers are now compelled to enact a psychological harassment prevention and complaint processing policy and communicate it to their employees. Similar amendments to the Canada Labour Code were introduced before the Parliament of Canada, in order to reinforce the protection against psychological and sexual harassment for employees working in the federal sector.
In a similar vein, the LSA will be amended to provide that an employee may now be absent, not only for reasons of illness or accident, but also if the employee is, or has been the victim of domestic violence. It should be noted, that the LSA does not define the concept of domestic violence.
The Quebec Government has also expanded the protection against “orphan clauses”. It is now illegal to award lesser benefits in a pension plan or in a group insurance plan, if the lesser benefit is solely based on the hiring date of the employee. The LSA will also be amended to provide a specific recourse before the Administrative Labour Tribunal to permit an adversely impacted employee to seek redress and compensation.
In what is a major change to existing law, the Quebec Government has decided to regulate the operations of placement agencies in general and specifically the operations of those placements agencies involved in the recruitment of temporary foreign workers. In the past, there have been many reported cases of abuse of foreign migrant workers. As of the amendment coming into force, no business will have the power to operate a personnel placement agency or a recruitment agency for temporary foreign workers if it does not hold a license issued by the Labour Standards Commission (the “CNESST”) with qualifying criteria set under a regulation enacted by the Quebec Government. Also, placement agencies will now become jointly and severally liable with the employer for any unpaid wages or benefits arising out the application of the LSA; this includes basic wages, overtime, holiday pay, notice pay and collective dismissal pay. Moreover, a placement or recruitment agency will have to notify the CNESST of a foreign worker’s date of arrival, the term of his or her contract of employment and if the employee’s departure from the country does not coincide with the end of the employment contract, it will also have to provide the reason for the departure. In addition, the CNESST may initiate proceedings on behalf of a foreign worker even if the worker has not filed a formal complaint. Finally, a placement agency will no longer have the right to pay a lower rate of wage to a recruited employee who works in an establishment where other workers, paid directly by the employer, receive a higher wage rate for performing the same work.
In 2017, the Quebec Government enacted legislation to protect whistleblowers in the public sector. The Act to facilitate the disclosure of wrongdoings relating to public bodies (the “Act”) came into force on May 1 2017. The Act authorises the disclosure of violations of an act, abuse of public funds or egregious management. The Act authorises these disclosures when certain conditions are met. Also, the Act protects whistleblowers against reprisals arising out of a disclosure made in good faith. These reprisals can include demotions, suspensions and terminations of employment. An individual can file a complaint to contest these reprisals with the Ombudsmanof the province.
In order to further protect whistleblowers, the Quebec Government recently introduced Bill 107 to enable the DPP to stay proceedings initiated by a public body against an individual to recover amounts arising out of fraud, theft, embezzlement or mismanagement and also stay disciplinary proceedings initiated by a professional order against one of its members. This can be done where the DPP concludes a cooperation agreement with a witness in a criminal or penal proceeding and determines that it is in the public interest that these proceedings be stayed. The DPP may also intervene and stay administrative proceedings initiated by the Department of Revenue against the individual. Obviously, the stay is contingent on the individual cooperating with the DPP and if the individual does not provide the required testimony, then the stay can be lifted.
Unfortunately, and despite these amendments, there is still little positive financial incentive for an individual to whistle blow in Quebec as there is no legislation in force similar to the American False Claims Act, which enables a whistleblower to receive a sizeable part of the proceeds recovered by the state pursuant to proceedings initiated against the wrongdoer.
Other major modifications to employment laws occurred in Ontario, where the Liberal Government introduced The Fair Workplaces, Better Jobs Act. Many amendments were made to the existing Employment Standards Act. One of the most controversial was the substantial increase in the minimum wage rate which came into force on January 1 2018. The minimum rate which was $11.60 per hour was increased to $14.00 per hour and is set to reach $15.00 an hour by 2019. This prompted some employers, including many franchisees of the famous Tim Horton’s coffee retail chain, to threaten to cut back on some of their employees’ other benefits including the provision of group insurance.
Other amendments were introduced to insure that part-time and casual workers received the same wage rates as permanent employees when they performed the same work. By the same token, it was also enacted that employees hired by a placement agency (also known as a Temporary Help Agency (“THA”)) would receive the same wage rate as the employees of the THA client performing the same work.
François Garneau practises employment and labour law. His clientele consists of employers from various sectors including pharmaceutical, oil, mining, computer consulting, food products, and manufacturing.
François can be contacted on +1 514.871.5415 or by email at firstname.lastname@example.org