Changes To The Contract
A non-material change may be made unilaterally by the employer without notice. A material change must be accepted by the employee or be preceded by a reasonable notice period before it is enforced, otherwise any such change will constitute constructive dismissal.
Change In Ownership Of The Business
Subject to any contractual provisions to the contrary, the employment contract is not terminated as a result of the sale of a business. It is binding upon the new employer, according to Article 2097 of the Civil Code of Quebec and Section 97 of the Act respecting Labour Standards.
In the absence of continuation of employment, the former employer must fulfil all its obligations arising out of a termination of employment. The new employer is jointly liable with the former employer for any claim arising from the application of the Act respecting Labour Standards which was not paid at the time of the change of ownership (Section 96).
In the case of unionized employees, the transfer of the collective agreement will most frequently be assumed by simple operation of the law, the whole according to Section 45 of the Labour Code.
Section 76.11 of the Pay Equity Act stipulates that the sale of a business or the modification of its legal structure shall have no effect upon obligations relative to adjustments in compensation, a pay equity plan or a pay equity audit, which shall be binding on the new employer.
Finally, Section 34 of the Industrial Accidents and Occupational Diseases Act provides that where an establishment or part of it is sold or transferred otherwise than by judicial sale, the new employer assumes the obligations of the former employer under the Act toward the worker and, in respect of payment of the assessment due at the time of the alienation or transfer, toward the CNESST.
According to Section 45 of the Labour Code in the case of unionized workers, the new employer shall be bound by the certification or collective agreement as if he were named therein and becomes ipso facto a party to any proceeding relating thereto, in the place and instead of the former employer.
Any new employer having a place of business in Quebec with at least one (1) employee must be registered with the CNESST in order to benefit from this insurance against dangers to the health, safety and physical well-being of workers.
Social Security Contributions
Contributions are made to the “Régie des rentes du Quebec” (The public Quebec Pension Plan), to the Quebec Parental Insurance Plan and for Employment Insurance.
Accidents At Work
The Occupational Health and Safety Act and the Industrial Accidents and Occupational Diseases Act contain provisions dealing with accidents at work, for which an employee can present a claim to the CNESST. Any disputes arising from those claims may be settled by the ALT.
Discipline And Grievance
For unionized employees, the ability to discipline employees is usually dealt with by the provisions of the collective agreement. Collective agreements typically provide rules to follow and implement progressive discipline before termination of an employee will be justified.
If an employee in the unionized context considers discipline to have been unjustly applied, they can file a grievance following the procedure mandated is the collective agreement.
For non-unionized employees, progressive discipline applies except for egregious conduct (theft, fraud, or sexual harassment). Non-disciplinary sanctions are subject to progressive measures also.
Non-unionized employees cannot benefit from the grievance procedures, but they can file a complaint with the CNESST in the event that the employer has violated one of its obligations under the Act respecting Labour Standards.
Every employee is protected against discrimination on the ground of race, colour, sex, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national origin, social condition, and handicap.
Also, every employee has the right to work in an environment free from psychological and sexual harassment. Sections 10 and 10.1 of the Quebec Charter of Human Rights and Freedoms states that every person has a right to full and equal recognition and exercise of their human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Furthermore, no one may harass a person on the basis of any of these grounds.
Employers must take reasonable action to prevent psychological and sexual harassment and, whenever they become aware of such behaviour, to put a stop to it. This implies that an employer can be held liable for harassing behaviour of one of their employees.
Compulsory Training Obligations
Section 3 of the “Act to Promote Workforce Skills Development and Recognition” stipulates that every employer whose total payroll for a calendar year exceeds the amount fixed by regulation of the Government is required to participate for that year in workforce skills development by allotting an amount representing at least 1% of their total payroll to eligible training expenditures.
Section 49 of the Act respecting Labour Standards stipulates that no employer may make deductions from wages unless they are required to do so pursuant to an act, a regulation, a court order, a collective agreement, an order or decree or mandatory supplemental pension plan. The employer may make deductions from wages if the employee consents to it in writing, for a specific purpose mentioned in the writing. The employee may at any time revoke that authorisation except where it pertains to membership in a group insurance plan, or a supplemental pension plan.
Payments For Maternity And Disability Leave
Benefits during maternity/paternity/parental leave
As mentioned in the Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption) section, employees have the right to take maternity, paternity and parental leave for a certain period of time without pay. The leaves of absence may be compensated by benefits from the Quebec Parental Insurance Plan.
The eligible recipients of Quebec Parental Insurance Plan can choose between a Basic plan and a Special plan (s. 18 of the Act respecting Parental Insurance).
The Basic plan provides for a benefit equivalent to 70% of the weekly insurable salary for the 18 weeks of maternity, the 5 weeks of paternity, the first 7 weeks of parental and for the first 12 weeks of adoption benefits. Then, the recipients receive 55% of the weekly insurable salary for 25 weeks of parental benefits or adoption benefits.
The Special plan provides for a benefit equivalent to 75% of the weekly insurable salary for 15 weeks of maternity, the 3 weeks of paternity, 25 weeks of parental and for the 28 weeks of adoption benefits.
Provincial law provides that an employee on maternity leave, subject to certain conditions, may receive either 70% of the base average weekly salary (subject to a statutory maximum salary cap currently of $67,500) for a period of 18 weeks or 75% of base average weekly salary for a period of 15 weeks. If the leave is shared with the spouse (paternity leave) the percentages may vary.
Other similar rules apply in the case of adoption. An employee on parental leave, subject to certain conditions, may receive either 70% of the base average weekly salary for the first 7 weeks of leave and 55% of the base average weekly salary for the subsequent 25 weeks or 75% of base average weekly salary for a period of 25 weeks.
Employees covered by a group insurance plan will receive benefit payments for short term and long-term disability according to the terms of the group insurance plan.
Employees who are not covered by a group insurance plan may receive Employment Insurance Sickness Benefits for a maximum period of 15 weeks.
There is no obligation for an employer to set up or provide group insurance. However, if such a plan is offered, there are specific rules in the Civil Code of Quebec concerning group insurance policies.
Absence For Military Or Public Service Duties
Employees are entitled to take leave for military or public service duties.
Works Councils or Trade Unions
The Quebec Labour Code does not regulate the setting up or internal constitution of a Work Council or a Trade Union. These entities are governed by their own internal regulations and by-laws. These regulations and by-laws must conform to the general rules concerning non-profit organizations contained in the Civil Code of Quebec and the Professional Syndicates Act. However, the Labour Code does regulate the conditions under which a Trade Union may be certified with a particular employer as well as the rules dealing with collective bargaining and the exercise of the right to strike.
Employees’ Right To Strike
Unions have the right to declare a legal strike and employers have the right to declare a legal lock-out. For private sector unions, these rights will generally be acquired 90 days after the notice to start bargaining was served on the other party. Once it is acquired, there is no requirement to provide the other party or the authorities with any notice of intent for the strike or lock-out to be legal. However, the party which declared a strike or lock-out must notify the Minister in writing within 48 hours following the declaration of the strike or lock-out and indicate the number of employees comprised in the bargaining unit concerned (Sections 58 and 58.1 of the Quebec Labour Code). During this period, the employer cannot hire replacement employees and can generally only use management employees hired prior to the bargaining period to replace the striking employees. These rules are stipulated in Sections 106 to 109.1 of the Quebec Labour Code.
In the public and para-public sectors, the right to lock-out employees do not exist. The right to strike is severely limited and the “Conseil des services essentiels” (Essential Services Council) must approve the list of employees who will be authorized to strike prior to the launching of any strike.
Employees On Strike
An employee who is legally on strike or lock-out remains an employee for the full duration of the conflict. They may only be terminated for a just and sufficient cause other than the fact that they are legally on strike. Accordingly, participation in an illegal strike may be cause for discipline including termination. At the end of a strike or a lock-out, any employee who has been on strike or has been locked out is entitled to recover their employment by priority over any other person unless the employer has good and sufficient reason for not recalling such employees, according to Section 110.1 of the Labour Code.
Employers’ Responsibility For Actions Of Their Employees
Employers are liable for the actions of their employees by virtue of the Civil Code of Quebec. However, the employer will not be held liable if the employee has acted outside the scope of their duties (see Article 1463 of the Civil Code of Quebec).