Publications

Since 1968, labour relations in the construction industry have been governed by a specific statute, the Act respecting labour relations, vocational training and workforce management in the construction industry.At the time, R-20 was enacted to put some order in an industry struggling with an increasing number of applications for certification and regional decrees.Determining the scope of application of this Act has always been a sensitive issue and, over the years, the Act has been amended to make the required adjustments, particularly by excluding work similar to construction work but carried out around this industry.The preceding bulletin addresses the issue of coverage of the work related to the planned production shutdowns for maintenance purposes.

On July 29, 2010, the Supreme Court of Canada rendered three judgments in which five of the nine judges declared that grievance arbitrators have jurisdiction to decide whether employees who do not have job security and grievance rights under a collective agreement may file grievances based on section 124 of An Act respecting labour standards.In June 2008, the Court of Appeal, then seized of the same dispute, had concluded that the Labour Relations Board had exclusive jurisdiction over such grievances.Although this decision contains an elaborate and articulate dissent, the reasons of the majority set the tone to follow.Thus, and despite the provisions of a collective agreement preventing the filing of a grievance in cases of termination of employment, an employee having two years of uninterrupted service could base himself on section 124 of the ARLS to institute his recourse before an arbitrator.The Court was nevertheless unanimous in rejecting the theory of implicit incorporation of a standard public order. 

Can the parties to an individual employment contract include a clause stipulating that the employee must reimburse his training costs to the employer if he resigns? Upon hiring and throughout the course of employment, employers often require employees to receive training. Significant costs can be incurred by training employees, particularly in industries where the turnover rate is high. Can employers ensure they receive a return on their investment or are they at the mercy of employees' sudden departures?

On March 18, 2010, administrative judge Richard Hudon of the Commission des lésions professionnelles (the "Commission") rendered a very interesting decision in the case of Côté et Traverse Rivière-du-Loup St-Siméon.The Commission had to decide whether, on November 29, 2008, the income replacement indemnity paid to a worker could be reduced by 25% by the application of section 56 of the ARIAOD on the grounds that he was 64 years old when he suffered his employment related injury.

Last August, an arbitrator ruled on a dispute in the context of which accommodation measures were sought for the benefit of a person who had in excess of ten years of seniority and no longer held her position, having been absent for nearly three years for physiological reasons.The arbitration tribunal had to rule on several issues pertaining to the day-to-day management of absences and to the return to work sought by a female employee based simply on the submission of a medical certificate.The tribunal thus ruled that the employee’s grievances were unfounded. The content of its analysis of the various questions asked, showed that the obligation of accommodation is not without limits and that the rights of an organization’s clientele are relevant for the purposes of this analysis.

The Pay Equity Act (hereinafter the “Act”) celebrated its 10th anniversary in 2006. To mark the occasion, the Commission de l’équité salariale took stock of what had been achieved. After completing this analysis, on May 27, 2009, the National Assembly passed Bill 25, which made several amendments to the Act. These amendments came into force on May 28, 2009. The most important changes made by Bill 25 were: (i) the extension of the Act’s coverage to businesses that reach an average of ten or more employees during a calendar year, (ii) the imposition of pay equity audits, and (iii) the adoption of measures to require employers to implement pay equity who have not yet done so.

On December 2, 2009, The Superior Court upheld a decision of the Commission des relations de travail which concluded that nurses hired through an employment agency were employees of the health-care facility and, therefore, covered by the bargaining certificate of the union in question.However, the case of Syndicat des professionnelles en soins du CSSS de la Montagne (FIQ) v. Centre de santé et de services sociaux de la Montagne provides a different perspective on the same issue of determining who the employer of employment agency personnel is by assessing the situations of the relevant employees separately according to the respective structures and management methods of different agencies used by the same employer

The member-funded pension plan: a defined benefit pension plan that limits the employer’s financial risk Doing business with the government: a question of transparency Your company and the influenza H1N1 flu pandemic

Passed into law on June 10, 2009, Bill 35 makes significant amendments to the modification of a method of levying assessments under the Act respecting industrial accidents and occupational diseases, the convertion of certain allowances and benefits, a gradual increase in the fines levied under the Act respecting occupational health and safety (the “AOHS”) and the inclusion of employees of employment agencies within the scope of the AOHS.  The objective of Bill 35 is to improve prevention and achieve a corresponding reduction in work-related accidents.

Under the Tobacco Act, employers must prohibit their employees from smoking inside their establishments. However, the Act is mute on no smoking outside, on the company’s land.Can an employer be stricter than the Tobacco Act by implementing a no smoking policy intended to entirely ban smoking on its property?

In the Kerry decision rendered on August 7th, 2009, the Supreme Court of Canada confirmed that employers may oblige pension funds to pay Plan expenses, that is the expenses associated with the employment of actuaries, accountants, counsel and other service providers required for the administration of the Plan.The Court also concluded that employers may combine the defined benefit (“DB”) and the defined contribution (“DC”) components in one pension plan and use the actuarial surplus for contribution holidays concerning the DC component.However, the Court has pointed out that each case must be reviewed in regard to the “text and context” of the pension plan.

Much has been and continues to be written about applications for cost-sharing under section 329 of An Act respecting industrial accidents and occupational diseases (the "AIAOD").The purpose of this provision, which is regularly used by employers, is to counterbalance the consequences of the "thin-skull theory" to eligible claims, as without it, the costs of a worker's personal condition would be borned by the employer.The attached bulletin discusses the principles that apply to the analysis of an application for cost submitted by an employer and explains the recent decisions of the Commission des lesions professionnelles concerning the relative scope of the new evaluation grid that the CSST adopted in May 2007.Entitled “Table des durées maximales de consolidation aux fins de l’application de l’article 329 de la LATMP” [Table of Maximum Consolidation Times for the purposes of the application of section 329 AIAOD], this new grid significantly modifies the way in which the CSST analyses the applications for cost sharing . However, this “Table...” must be reviewed in the light of the various decisions that the CSST has issued over the last year.