Legislation outlines rights of untrained workers
Workers in Quebec who job-shadow or otherwise get some form of unpaid training in the workplace will soon have employment standards protection, under a new law.
Bill 14, An Act to ensure the protection of trainees in the workplace, goes into force on Aug. 24, and for those workplaces that have a steady stream of trainees, there are some things that must be considered to become compliant.
Canadian HR Reporter spoke with François Longpré, partner at Borden Ladner Gervais in Montreal, about some of the things employers will have to be aware of.
Q: What new rights are gained with the law?
A: “The difference here is that before the statute, there was really no legislative guidance as to how to treat unpaid trainees so there was a bit of a hole in the statutory framework and this new law now deals with this issue of what are the rights of untrained trainees.
“What struck me the most was not so much the rights that were being granted but the mere fact that there was an implicit recognition that you can have an unpaid training program; in the circumstances, to me, that was the novel point about the whole statute.
“Is that a right thing to do, from a social perspective, from an economic perspective? But clearly, the Quebec legislature has taken the position that, at least with regards to training that arises in the context of some course of education, or some form of articling as we have for lawyers, for other professions, [having] unpaid trainees is clearly now legal.”
Q: What is the exact definition of trainees under the act?
A: “Any job-shadowing activity or activity for the acquisition or implementation of skills, that is required to obtain a permit to practice a profession or that is part of a program of studies at the high school, vocational, college, university level, leading to some form of diploma. They’ve really narrowed it down.
“If you had someone who was going to an employer say, ‘I want to have some experience. I don’t want to be paid, just let me hang around and watch and help,’ it would not be covered by this.”
Q: What is the government trying to achieve with the legislation?
A: “There must have been some sense that there was a gap. There are a lot of situations that are covered because there are tons of jobs that require some form of on-the-job training in the context of an educational program or a program leading to the exercise of a profession and the individuals who are involved with these programs were left in this gaping hole of legislation.
“Now, the legislature has made a clear that some of the basic rights that are provided for employees, they basically piggybacked on our employment standards legislation to create a set of rights for these individuals.”
Q: Was there a great need for this type of legislation?
A: “It’s going to cover quite a few people because there are probably more in the high school or educational environment, there are a lot of people who are trainees; whether or not there was a crying need for it, to be honest, I’ve never run into this question before in 30 years of practice.
“It was difficult to argue that there was a great need but, obviously, some parties must have lobbied the government and explained there was this problem because it’s true that they were not covered. If you’re a trainee, and you’re psychologically harassed, for example, you had no protection, at least no statutory protection.”
“Every once in a while, you would get a phone call from a client asking whether or not you could have such a thing as an unpaid trainee and before this legislation, we would tell clients ‘There’s no law that requires you to pay them and if someone is willing to enter into an agreement with you, that you’re going to train them for no remuneration, that’s perfectly legal.’ Just now it’s clear.
“Before it was an opinion but now the legislature is clearly taking a position.
“It allows the trainees to take time off for these social types of leaves and then the entity that’s doing the training can’t take measures against them. They can’t tell the person, ‘You can’t take the day off to go to your grandmother’s funeral or else I’m going to take you out of your training program,’ for example. That would prevent this sort of retaliation.”
Q: How should employers respond?
A: “If you’re in a business where there’s a lot of tradespeople, so you’re bound to have a lot of people coming out of vocational schools for training periods… [you] would be wise to consider the statute and… to have a policy to deal with these matters. If it’s a commonplace occurrence, it’s certainly worthwhile.
“You want to make managers aware of the rights of these trainees so that they don’t run amiss of the statutory protections. If you don’t have a policy, then of course, you don’t expect your manager to go fish into the internet to verify this relatively obscure area of the law; if you have a policy then it’s out there, and then management is more likely to be compliant and not run into problems.
“The employer and the educational institution or the professional order have a duty to advise the trainee of his or her rights under the statute so there’s an actual positive obligation on the employer. That could be a handout. Usually with these things, there’s often a tripartite agreement between, especially for vocational type schools, the school, the employer and the trainee and so you could have an annex attached to the training agreement. That would be sufficient for the purposes of the statute and it wouldn’t be a multi-page document, something fairly straightforward.”