By Sarah Dobson
Quebec passed Bill 176 in June — an Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance — with several changes around workplace harassment, scheduling of work, leaves of absence and pay equality.
Amendments to some of the changes came into force Jan. 1, and while they add up to a major overhaul, it’s not a complete revision of the rules, according to Natalie Bussière, a partner at Blakes in Montreal.
But employers beware: “They are definitely employee-friendly,” she said.
One of the major changes concerns psychological harassment. Employers are now required to have a psychological harassment prevention and complaint processing policy.
Before, it was best practice, said Bussière.
“It was systemically recommended every time there was a complaint for psychological harassment; it was one of the first questions asked by the agents of CNSSEE (Commission des normes, de l'équité, de la santé et de la sécurité du travail) when performing an investigation,” she said.
“The law also states that your policy must cover sexual harassment because psychological harassment can be or not be related to sex. In my view, if you have a policy that is quite broad, it will very likely encompass, in any event, sexual harassment. But now they’ve clarified it so that there’s no doubt in anybody’s mind it should also address these types of situations.”
Employers that don’t comply could face challenges in court, according to Maude Galarneau, lawyer at Borden Lander Gervais in Montreal.
“It may have an impact when discussing a psychological harassment case before (the tribunal) because obviously if there’s a legal requirement to have one and you don’t, the (tribunal) will not be able to impose a fine because it’s not of its competence to do so, but I don’t think it will help the employer’s case if it does not.”
Quebec has also amended the limitation periods for filing harassment complaints at work, so an employee can now file a harassment complaint within two years of the last incident, as opposed to 90 days.
That is a very challenging development, said Galarneau.
“I feel like this was put in place so that people who were very scared to bring something to the attention of the employer or the law, they wanted to give those people more time to allow them to file their complaint for that. But I feel like such an extended delay is more difficult to apply to different types of situations.”
That will be a concern for employers when it comes to evidence-gathering, said Bussière.
“When you learn about something that happened two years ago, it’s very difficult for employers to identify the witnesses — they may no longer be employed by the employer, and then memory being what it is, it’s not as easy (to investigate) as for an event that took place more recently.”
That puts much more pressure on employers to document situations, especially with people changing jobs more often, said Marianne Plamondon, a partner at Langlois Lawyers in Montreal.
“Employers that don’t do that will fall back with having no facts of what happened and an employee stating she was sexually harassed 16 months ago, and maybe the employees that would be presumed responsible are not working there anymore.”
There are also several changes around scheduling work and overtime in Quebec. For one, employees will have the right to refuse to work more than two hours beyond their regular hours, rather than four hours.
And workers can now refuse to work if they have not been informed at least five days before they are required to work — unless their duties require them to remain available.
“That’s a major change for employers… especially for sectors where it’s hard to predict how many hours they have to do from one week to another. But, at the same time, this employer is facing this scheduling five days in advance, so that’s going to be a struggle,” said Plamondon.
“It will be very interesting how tribunals will interpret that, because hotels (for example) that are very busy in Christmastime might say the function requires a person to stay available… a lot of employers will want to qualify their functions as requiring availability at all times, but obviously there’s going to have to be a line drawn somewhere.”
The implementation of this rule could be tricky, said Bussière.
“Most employers try to avoid overtime, for various reasons, and will also try to plan ahead for obvious reasons — you want to make sure you will meet whatever deadlines and production objectives or whatnot. So, for me, this is not a situation where you would have employers wilfully trying to ask people to stay at the last minute, so it’s just unfortunately something that has to be done. This is something we’ll have to monitor closely in terms of how it will be interpreted and applied, and what it will cost.”
Leaves of absence, days off
To receive three weeks of annual vacation — instead of the previous two — employees in Quebec are no longer required to have five years of uninterrupted service, but three years instead.
That will make for a significant change for certain industries, such as retail, where employers usually offer the statutory minimum, as this adds up to an additional benefit, said Bussière.
“People value vacation highly so, let’s face it, governments enact provisions that have a meaningful impact on constituents, so vacation is something which people appreciate greatly.”
But that boost to three weeks has a cost, said Galarneau.
“With three weeks comes the six per cent of indemnity for vacation pay, and that can be a surprising effect. If for any particular reason you have a lot of employees getting to three weeks of vacation more rapidly than in the past, and you have not budgeted for that, that can be troubling for some employers and they’ll have to figure out a way around this for sure.”
Quebec has also stated employers can no longer pay employees a lower wage rate than that granted to employees who perform the same tasks, meaning those with a different employment status.
“The idea was to say that the fact that you don’t have, let’s say, a full-time status will not be a rational basis to make a difference in salary,” said Bussière. “It’s targeted to employers that offer a lot of part-time schedules.”
This new rule follows a previous move in Quebec to expand the restriction of "orphan clauses" which allowed employers to provide less favourable benefits to employees based on their hiring date, such as defined contribution pension plans instead of defined benefit plans.
Often employers looking to reduce costs would say they couldn’t maintain a particular program because it was too expensive, such as group insurance, said Plamondon.
“But that created disparity and they said it was disparity for generations — so the younger employees were not getting as much as the older employees — and that created unfairness.”