L8 - The Act Respecting Labour Standards Flashcards
s.93 ALS
Subject to any exception allowed by this Act, the labour standards contained in this Act and the
regulations are of public order.
In an agreement or decree, any provision that contravenes a labour standard or that is inferior thereto is
absolutely null.
Is there a possibility of exception?
Yes, with s.94:
Notwithstanding section 93, an agreement or a decree may grant an employee a more advantageous
condition of employment than required in a standard prescribed by this Act or the regulations.
What is the general rule of the Snyder decision?
Provincial governments have jurisdiction over labor regulations (with some exceptions where federal government can have it)
Why is it important to have labour standards?
- Correct power imbalances between employers and employees, which is the intention
However, some argue that terms and conditions should be a private matter
s.2 ALS
Who does ALS apply to?
This Act applies to the employee regardless of where the employee works. It also applies:
(1) to the employee who performs work both in Québec and outside Québec for an employer whose
residence, domicile, undertaking, head office or office is in Québec;
(2) to the employee domiciled or resident in Québec who performs work outside Québec for an employer contemplated in subparagraph 1;
s3. ALS
Who is excluded from the ALS?
see s.3 for exhaustive list
But the key matter is that there are 2 types of exclusions
1.TOTAL:
- Independent contractors are not employees, so they’re not under the protection of the act
- Federally regulated workers (they would fall under the Canada Labor Code)
2. PARTIAL:
- Senior managers: no “senior manager” definition in the definition section, so we have to go to the courts to interpret the legislation and tell us what “senior manager” is.
Since there are no straightforward definition of who qualifies as a senior manager, how can we establish if someone is a senior manager?
CNESST link: The mere fact that a person has the title of Senior Manager doesn’t mean he is (Look beyond the title). We must look at a multitude of factors.
- Hierarchical level of the individual (important to consider the size of the entity) There is only 1 boss in a small enterprise, while in a big one, it’s impossible to have only 1 so there is a division of senior management.
- The senior manager is implied in the undertaking decisions, strategies, policies, etc.
- Level of autonomy. SM enjoys a great level of it
- A SM manages management personnel.
- A SM is among the best remunerated in the entity
What are the criteria regarding minimum wages?
s.40: An employee is entitled to be paid a wage that is at least equivalent to the minimum wage (determined by regulation of the Government)
s.41: Benefits are NOT part of wages
s.41.1: No employer may remunerate an employee at a lower rate of wage than that granted to his other
employees performing the same tasks in the same establishment solely because of the employee’s
employment status, and in particular because the employee usually works fewer hours each week.
s.50 (shortened): Tips are not part of minimum wages
ss. 42,43,44
What are the requirements for the payment of wages?
42: Wage must be paid in a sealed envelope, cheque, or by bank transfer. If the cheque is not cashable within the 2 working days following its issue, the employee is deemed to not have received payment
43: Wages must be paid at a regular interval of not more than 16 days, with a maximum of 1 month for certain situations (first pay, managerial personnel)
44: The wages of an employee must be paid directly to the employee, at the employee’s place of employment and on a working day, except where the payment is made by bank transfer or is sent by mail.
The wages of an employee may also, at the employee’s WRITTEN request, be remitted to a third person
s. 49
What is the rule regarding deductions?
e.g. EI, Pension Plans, Child Support, etc
The employer cannot deduct anything to the wages, unless there is consent by the employee, or the law mandates it. The employee can revoke this authorization at any moment
s.49
No employer may make deductions from wages unless he is required to do so pursuant to an Act, a
regulation, a court order, a collective agreement, an order or decree or a mandatory supplemental pension
plan.
The employer may make deductions from wages if the employee consents thereto in writing, for a specific
purpose mentioned in the writing.
The employee may at any time revoke that authorization, except where it pertains to membership in a
group insurance plan, or a supplemental pension plan. The employer shall remit the sums so withheld to their
intended receiver.
What does s.52 state about the work week?
For the purposes of computing overtime, the regular workweek is 40 hours except in the cases where it
is fixed by regulation of the Government.
What does s.55 state about overtime?
Any work performed in addition to the regular work-week entails a premium of 50% of the prevailing
hourly wage paid to the employee except premiums computed on an hourly basis.
Notwithstanding the first paragraph, the employer may, at the request of the employee or in the cases
provided for by a collective agreement or decree, replace the payment of overtime by paid leave equivalent to the overtime worked plus 50%.
Subject to a provision of a collective agreement or decree, the leave must be taken during the 12 months
following the overtime at a date agreed between the employer and the employee; otherwise the overtime must be paid. However, where the contract of employment is terminated before the employee is able to benefit from the leave, the overtime must be paid at the same time as the last payment of wages.
s.57 What are the conditions where an employee is deemed to be at work?
- Available at place of employment and required to wait for work to be assigned
- Subject to section 79, during the break periods granted by the employer
- when travel is required by the employer
- during any trial period or training required by the employer.
s.58
The three hour rule
An employee who reports for work at their place of employment at the express demand of their employer or in the regular course of their employment and who works fewer than three consecutive hours, EXCEPT in the case of superior force, is entitled, to an indemnity equal to three hours’ wages at the prevailing hourly rate except where the application of section 55 entitles the employee to a greater amount.
This provision does not apply in the case where the nature of the work or the conditions of its execution require the employee to be present several times in the same day, for less than three hours each time, such as that of a school crossing guard or a bus driver.
Neither does it apply where the nature of the work or the conditions of execution are such that it is
ordinarily completed within a three hour period, such as the work of a school-crossing guard or usher.
Also
The concept of superior force: weather, fire alarm, etc. It’s also important to note that you need to show up at the express demand of your employer (you can’t just show up there) Being sick and leaving before 3 hours doesn’t entitle you to the full 3 hours pay.
s.79
What is the rule regarding breaks to eat lunch?
Unless otherwise provided in a collective agreement or a decree, the employer must grant to a employee a rest period of thirty minutes, without pay, for meals, for a period of five consecutive hours of work.
That period shall be REMUNERATED if the employee is not authorized to leave their work station.
s.78
What is the rule regarding weekly rest?
Subject to the application of paragraph 12 of section 39 or of section 53, an employee is entitled to a weekly MINIMUM rest period of 32 CONSECUTIVE hours.
In the case of a farm worker, that day of rest may be postponed to the following week if the employee consents thereto.
Work by children (ss. 84.3,84.4) derives from what?
From s.84.2, which states that an employer can’t have a child doing anything that will harm the child’s education, health, or physical and moral development
And anything that is disproportionate to the child’s capacity
s.84.3
Rules about the age at which a child can do so work.
No employer may have work performed by a child under the age of 14 years, except in the cases and
on the conditions determined by regulation of the Government. In such cases, the employer must obtain the written consent of the holder of parental authority over the child or of the child’s tutor using the form
established by the Commission.
The form specifies the child’s principal tasks, maximum number of hours of work per week and periods of availability. Any modification made to any of those elements must be the subject of new written consent.
The employer must preserve any consent form as if it were an entry required to be made in the registration system or register referred to in paragraph 3 of section 29.
s.84.4
Rules regarding the time at which a child can perform work
No employer may have work performed during school hours by a child subject to compulsory school
attendance.
In addition, no employer may have work performed by such a child for more than 17 hours per week or for
more than 10 hours from Monday to Friday. However, these prohibitions do not apply to any period of more
than seven consecutive days during which no educational service is offered to the child. (e.g., March Break)
s.60
What are the statutory holidays?
(1) 1 January;
(2) Good Friday or Easter Monday, at the option of the employer;
(3) the Monday preceding 25 May;
(4) 1 July, or 2 July where the 1st falls on a Sunday;
(5) the first Monday in September;
(6) the second Monday in October;
(7) 25 December
ss. 67, 68, 68.1, 69
What are the rules concerning annual leave?
s.67: If the employee has been working for less than 1 year of uninterrupted service, he is entitled to 1 day of uninterrupted annual leave per month worked, with a maximum of 14 days.
s.68: If the employee has been working for a year, he is entitled to an annual leave of a minimum of 2 consecutive weeks.
s.68.1: For those for which s.68 applies, they are also entitled to, upon request, additional UNPAID leave equal to the number of days required to increase the employee’s
total leave to 3 weeks (2 paid, 1 unpaid)
Such additional leave need not follow immediately a leave under section 68 and, notwithstanding sections
71 and 73, it may not be divided, or be replaced by a compensatory indemnity.
s.69: An employee who, at the end of a reference year, is credited with three years of uninterrupted service
with the same employer is entitled to an annual leave for a minimum duration of three consecutive weeks
ss. 79.1
What are the rules concerning sick leaves?
An employee may be absent from work for a period of not more than 26 weeks over a period of 12 months, owing to:
- sickness
- organ or tissue donation for transplant
- an accident,
- domestic violence or sexual violence of which the employee was a victim.
However, an employee may be absent from work for a period of not more than 104 weeks if the employee
suffers serious bodily injury during or resulting directly from a criminal offence that renders the employee
unable to hold their regular position. In that case, the period of absence shall not begin before the date on
which the criminal offence was committed, or before the expiry of the period provided for in the first
paragraph, where applicable, and shall not end later than 104 weeks after the commission of the criminal
offence.
However, this section does not apply in the case of an employment injury within the meaning of the Act respecting industrial accidents and occupational diseases (chapter A-3.001).
s.79.4
What is the rule regarding the reintegration of an employee following a sick leave?
At the end of the period of absence, the employer shall reinstate the employee in the employee’s
former position with the SAME BENEFITS, including the wages to which the employee would have been entitled had the employee remained at work.
If the position held by the employee no longer exists when the employee returns to work, the employer shall recognize all the rights and privileges to which the employee would have been entitled if the employee had been at work at the time the position ceased to exist.
Nothing in the first paragraph shall prevent an employer from dismissing, suspending or transferring an employee if, in the circumstances, the consequences of any of the events mentioned in section 79.1 or the repetitive nature of the absences constitute good and sufficient cause.
s.82
What are the “deadlines” for notices of termination, based on how long the employee has been working for the employer
The employer must give written notice to an employee before terminating the employee’s contract of employment or laying the employee off for six months or more.
The notice shall be:
- 1 week if the employee is credited with less than 1 year of uninterrupted service
- 2 weeks if the employee is credited with 1 year to 5 years of uninterrupted service
4 weeks if the employee is credited with 5 years to 10 years of uninterrupted service
-8 weeks if the employee is credited with ten years or more of uninterrupted service.
A notice of termination of employment given to an employee during the period when the employee is laid off is absolutely null, except in the case of employment that usually lasts less than six months each year due to the influence of the seasons.
This section does not deprive an employee of a right granted to the employee under another Act.
s.82.1
What are the exceptions for which s.82 doesn’t apply?
- who has less than 3 months of uninterrupted service;
- whose contract for a fixed term or for a specific undertaking expires (e.g., end of a project)
- who has committed a serious fault;
- for whom the end of the contract of employment or the layoff is a result of superior force.
The Act only requires the employer to terminate with a notice, but the Code requires both
