Update: Quebec adopts prohibition on orphan clauses and expands leaves of absence
Bill 176, “An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance,” (the Act) was adopted on June 12, 2018 by the Quebec National Assembly. The Act mostly comes into force on June 12, 2018, but some changes will take effect on January 1, 2019 (or on the coming into force of upcoming regulations). Bill 176 was summarized in the April 2018 edition of News & Views.
Prohibition on orphan clauses
The Act now prohibits “orphan” clauses, i.e., differences in treatment with respect to pension plans or other employee benefits based solely on the hiring date of employees who perform the same tasks in the same establishment. Existing clauses that provide for differences in treatment may continue to apply. Employers must comply with the Act with respect to their provincially regulated employees in Quebec regardless of where a pension plan is registered.
Recourse is provided for employees who believe they have been the victim of a prohibited distinction with respect to pension plans or other benefits. The employee may file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) within 12 months (and not 90 days as initially provided in the initial version of Bill 176) of the distinction becoming known to the employee. The complaint may be referred to the Administrative Labour Tribunal (ALT) by the CNESST. The ALT may render any decision it believes fair and reasonable, including:
- order that the distinction no longer be made;
- order that an employee be made a member of a pension plan, or make other employee benefits applicable to the employee;
- order that the employer pay the employee an indemnity for the loss resulting from the distinction.
Amendments to leaves of absence
Amended and new leave periods correspond to the versions set out in the initial version of Bill 176. In addition, the current unpaid leave of absence of not more than 26 weeks over a period of 12 months due to sickness, organ or tissue donation for transplant, or accident has been extended to employees who are victims of domestic violence or sexual violence.
Effective January 1, 2019, an employee who has three months of uninterrupted service will now be entitled to remuneration for the first two days of absence per year taken to deal with family obligations (10 days a year are provided) and for an absence due to sickness, organ or tissue donation for transplant, accident, or domestic violence or sexual violence. However, the employer is not required to pay employees for more than two days of absence even if more than one such leave is taken.
Employers should check the wording in pension and benefit plans to ensure that all leaves of absence for which benefit accrual is required in Quebec are adequately covered. Employers should also ensure they comply with all new requirements relating to leave provisions.
Several issues relating to orphan clauses are not clearly addressed in the Act. It is not clear whether a future amendment to an existing clause that establishes a distinction based on the date of hiring will be permitted. Furthermore, the exact meaning of the terms “pension plans” and “other employee benefits” is not defined in the Act. These provisions will require further clarification.