By Julien Thibault
The revision of the Act respecting labour standards (hereinafter referred to as the “Act”) was introduced in March and became a reality several weeks ago with the Quebec National Assembly’s unanimous adoption of Bill 176, sponsored by Dominique Vien, the Minister responsible for Labour. The new version of the Act, whose stated purpose is to “facilitate family-work balance,” improves several minimum labour standards, especially with regard to leave. In a union context, this presupposes a review of the collective agreements currently in effect, particularly as a new period of provincial negotiations is fast approaching in 2019¬–2021. In this short article, you will find an overview of the amendments that are most pertinent to the working conditions of PSAC members who are subject to the Act.
Provisions with respect to psychological harassment
Although case law has recognized for some years now that verbal comments, actions and gestures of a sexual nature may constitute psychological harassment, the revision expressly includes this notion. The legislator states, in section 81.18 of the Act, that vexatious behaviour – a key factor in harassment – may also be expressed through verbal comments, actions and gestures of a sexual nature. In addition to requiring all employers to implement a prevention and treatment policy for complaints of psychological harassment, the new section 81.19 of the Act also stipulates that the policy must include a component specifically addressing the matter of verbal comments, actions and gestures of a sexual nature. Since provisions relating to psychological harassment automatically form an integral part of any collective agreement, it is important to ensure that employers have complied with this requirement by the time the section comes into force, on January 1, 2019. Otherwise, grievances could be filed challenging the failure to take action in this regard. But the most significant amendment is the considerable extension to the deadline for filing harassment-related complaints. In the previous version of the Act, complaints had to be filed within 90 days of the last incidence of the offending behaviour; that deadline has now been extended to two (2) years. Given this significant change, it will be even more crucial to carefully preserve all pertinent evidence in order to reconstruct the facts in the case as thoroughly as possible to better protect our members’ rights.
Family and sick leave
The new section 79.6.1 of the Act, which has been in effect since June 12, 2018, expands the definition of “parent” to include foster families. In addition, section 79.8 now allows a caregiver to be absent from work for up to 16 weeks per year to care for an adult and up to 27 weeks if the adult has a serious, potentially life-threatening illness, as attested by a medical certificate. In the case of a minor child, the caregiver may be absent for up to 36 weeks per year. These provisions, too, came into force on June 12, 2018. As of January 1, 2019, employers will be required to pay up to two (2) days’ leave to allow an employee with more than three months of uninterrupted service to care for a relative or another person for whom the employee acts as caregiver. This right to paid leave is in addition to the existing section 79.7 of the Act, which already allows an employee to be absent from work for 10 days a year for family obligations. Employees may also choose to use these two (2) days of paid leave for illness, an accident, domestic violence or sexual violence. In other words, employers will be required to pay for two (2) days, not four (4), taken for either of the above-mentioned reasons. In addition, employees who have experienced domestic violence or sexual violence will now be entitled to 26 weeks of leave in a 12-month period. Previously, the Act protected only “accident” victims.
In term of the refusal to work overtime hours, the threshold lowers from four (4) hours to two (2) hours above and beyond the employees’ regular work hours, according to Section 59.0.1 of the Act. In other words, as of January 1, 2019, employees will be able to refuse to work more than two hours of overtime in addition to the regular workday. In addition, as of January 1, 2019, subparagraph 3 of section 59.0.1 entitles employees to refuse to work if the employer has not given at least five days’ notice of the work schedule, unless the nature of their duties requires them to remain available or they are agricultural workers.
Prohibition against differences in treatment
As of June 12, 2018, with respect to pension plans and employee benefits, the new Act prohibits differences in treatment based on hiring date for employees performing the same tasks in the same establishment. This amendment is not retroactive, however, and clauses providing for disparities in treatment which were in effect on June 12 are still applicable. In addition, the new wording of section 41.1 of the Act now prohibits employers from using employment status alone as a basis for paying a lower salary rate or decreasing the annual vacation length or pay of employees performing the same tasks in the same establishment. This provision comes into force January 1, 2019, which gives affected locals several months to discuss with their employers the renegotiation of specific collective agreement clauses that are potentially inferior to the Act. The new Act also entitles employees who consider themselves victims of a prohibited distinction in treatment with respect to pension plans or benefits to complain to the CNESST. The complaint must be filed within twelve (12) months of becoming aware of the disparity.
As of June 12, 2018, employers must now either pay statutory holiday pay or grant compensatory leave to an employee not only if the employee is on vacation on the date of the holiday but also if the holiday does not coincide with the employee’s regular work schedule. Annual leave The legislator has also decided to entitle employees with three (3) years of uninterrupted service with the same employer to three (3) consecutive weeks of vacation. Previously, the requirement was five (5) years of uninterrupted service. This provision comes into force on January 1, 2019.
Payment of wages
Since June 12, 2018, employers no longer require employees’ permission to pay salaries by direct deposit. Please note: Under section 93 of the Act, the Act respecting labour standards constitutes a minimum threshold for employment practices. This means that every collective agreement must, at a minimum, provide for working conditions at least equal to those set out in the Act. Please also take note of the various effective dates of these recent legislative amendments in order to guide members more effectively. For more information on the revision, consult the appropriate section of the CNESST website, at: http://respectdesnormes.com This column does not constitute legal advice. It is solely for informational purposes. Members are advised to consult a legal officer for specific legal proceedings.