Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, was passed on June 20, 2024, introducing anti-replacement-worker provisions to the Canada Labour Code. While anti-replacement-worker legislation has existed in Quebec since 1977, nothing of the sort existed for federal jurisdiction employers. Before Bill C-58, federal legislation only stipulated that an employer or a person acting on behalf of an employer could not use replacement workers “for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives.” Unions faced a heavy burden of proof to demonstrate that replacement workers were being used for this purpose. As a result, union activists have been pushing for decades for more protection during labour disputes. New anti-replacement-worker provisions Bill C-58 adds a new subsection to section 94 of the Canada Labour Code on unfair practices, which limits and regulates the use of replacement workers during strikes and lockouts. The new provisions no longer require unions to demonstrate the employer’s intention to undermine the union’s representational capacity and they prevent federal jurisdiction employers from using the services of any of the following persons to perform the duties of an employee who is in the bargaining unit on strike or locked out: Any employee hired after the day on which notice to bargain collectively was given. Any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if the person was hired after the day on which notice to bargain collectively was given. Any contractor, other than a dependent contractor, or any employee of another employer whose services were not being used on the day on which notice to bargain collectively was given. If, before the day on which notice to bargain collectively was given, an employer was using the services of a contractor or an employee of another employer and those services were the same as or substantially similar to the duties of an employee in the bargaining unit, they may continue to use those services during a labour dispute, so long as they do so in the same manner, to the same extent and in the same circumstances as they did before the notice was given. Any employee whose normal workplace is a workplace other than that at which the strike or lockout is taking place or who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively was given. Any volunteer, student or member of the public. Any employee who is in a bargaining unit on strike or locked out. However, the new provisions allow employers to use the services of such persons during a strike or lockout as long as the services are used solely to deal with a situation that presents or could reasonably be expected to present one of the following imminent or serious threats: A threat to the life, health or safety of any person. A threat of destruction of, or serious damage to, the employer’s property or premises. A threat of serious environmental damage affecting the employer’s property or premises. The use of the services must be necessary in order to deal with the situation because the employer is unable to use the services of the employees on strike or locked out. As in Quebec’s Labour Code, an employer may only rely on the services of a person referred to above for conservation purposes, and not for the purpose of continuing the supply of services or production of goods by the employer. Finally, the bill specifies that the employer must first offer these conservation duties to the employees who are on strike or locked out. The bill also includes provisions applicable to employers who contravene the anti-replacement-worker provisions. These offences can result in fines of up to $100,000 per day. The government may also ensure compliance with the new provisions by adopting regulations to establish an administrative framework with financial penalties. New provisions regarding the maintenance of activities during a strike or lockout In order to prevent imminent and serious threats to public health and safety, Bill C-58 provides that the union and employer must reach an agreement on the activities to be maintained in the event of a labour dispute. If no activities need to be maintained, the parties must still enter into an agreement to this effect. An employer and a union must enter into this agreement no later than 15 days after the day on which notice to bargain collectively was given to the Minister of Labour and the Canada Industrial Relations Board. If the parties do not reach an agreement, the matter will be brought before the Board at the request of one of the parties. The 72-hour strike or lockout notices referred to in section 87.2 of the Canada Labour Code may be given only once this agreement has been reached and a copy has been filed with the Minister and the Board, or if no agreement has been reached, if the Board has determined an application made by one of the parties. Coming into force Bill C-58 will come into force on June 20, 2025. Until then, the new anti-replacement-worker provisions will undoubtedly cause federal jurisdiction employers to seriously consider their bargaining power and level of preparedness for possible labour disputes. Our team is here to help you through this process.

On April 19, 2024, the Supreme Court of Canada rendered its decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, marking the end of an almost 15 year-long debate on the freedom of association of managers and their exclusion under the Labour Code. The facts The Association des cadres de la Société des casinos du Québec (the “Association”) represents first-level managers at the province’s four casinos operated by the Société des casinos du Québec (the “Société”). The Association is a professional syndicate within the meaning of the Professional Syndicates Act. Although the Association is not governed by Quebec’s Labour Code (the “Code”), given the exclusion of managers from the notion of “employee” provided for in theCode, this exclusion does not prevent members of the Association from associating. In fact, in 2001, the Association and the Société signed a memorandum of understanding governing certain aspects of the collective labour relations. However, faced with the inability of the Association’s members to access the remedies offered by the Code, such as protections against bad-faith bargaining, the right to strike and the specialized dispute resolution mechanism, in 2003 the Association lodged a complaint with the International Labour Organization’s Committee on Freedom of Association. Dissatisfied, the Association then filed a petition for certification under the Code in 2009, requesting that the exclusion of management staff from the definition of “employee,” and therefore from the unionization process under the Code, be declared unconstitutional, as it infringed on the freedom of association protected by the Charters. The Société raised an exception to dismiss, since managers are excluded from the application of the Code. Proceedings prior to the Supreme Court of Canada In its 2016 decision, the Administrative Labour Tribunal (the “ALT”) found that the exclusion of managers from the definition of “employee” violates the freedom of association of the first-level managers represented by the Association, and that this infringement is not justified in a free and democratic society. The exclusion was declared inoperative in the context of this application. According to the ALT, the Association does not benefit from a meaningful process for bargaining in good faith for its members’ working conditions. Furthermore, the Association members’ right to strike is infringed without any other mechanism being provided, which, according to the ALT, constitutes a substantial infringement of the right to collective bargaining. In 2018, the Superior Court of Québec allowed the Société’s application for judicial review. The Superior Court concluded that the exclusion of managers from the Code does not contravene the freedom of association. Employers must be able to trust their managers and, for the sake of employee unionization, there can be no ambiguity about managers’ allegiance1. Managers can organize and associate, but not under this law. In 2022, the Court of Appeal overturned the Superior Court’s ruling and reinstated the ALT’s decision. According to the Court of Appeal, the ALT was right to conclude that the effects of the exclusion from the Labour Code regime constitute substantial interference with the exercise of the freedom of association. The Supreme Court of Canada's decision In a new development on April 19, the Supreme Court of Canada allowed the Société’s appeal, essentially ruling that the exclusion of managers from the Code does not violate the freedom of association. Although the seven (7) judges hearing this case concluded that the Dunmore analytical frameworkis the relevant one, there are applicable concurring reasons. In the opinion of the majority of the Court, a two-part test must be applied: The Court must consider whether the activities in question fall within the scope of freedom of association; and The Court must consider whether the statutory exclusion substantially interferes with those activities, in purpose or effect. In this case, the Association alleged that by excluding managers from the application of the Code, the government was preventing its members from “engaging in a process of meaningful collective bargaining with their employer, with constitutional protection for the Association, sufficient independence from the employer, and the right to recourses if the employer does not negotiate in good faith."2  According to the Supreme Court, the Association’s claim was indeed based on an activity that is protected under the freedom of association, thus passing the first part of the test. However, the Association’s claim fails the second part of the test. The Supreme Court concluded that the exclusion of managers from the Code’s definition of an employee does not substantially hinder the Association’s activities. As the Superior Court had found, this exclusion is intended to distinguish managers from employees and avoid conflicts of interest, in particular by ensuring that the employer can trust its managers and that employees can protect their own interests. The memorandum of understanding between the Société and the Association demonstrates that the members are able to associate and negotiate with the employer. Moreover, this protocol enables the Association to take legal action before the ordinary courts of law in the event of non-compliance with its terms and conditions. According to the Supreme Court, “the right to meaningful collective bargaining does not guarantee access to a particular model of labour relations."3 Conclusion After several years of debate, the Supreme Court of Canada has finally settled the question of the constitutionality of the exclusion of managers from Quebec’s collective labour relations regime set out in the Labour Code. As this exclusion does not violate managers’ freedom of association, they will not be able to validly file petitions for certification under the Code. However, they will be able to exercise their freedom of association in other ways, as in this case, through the Professional Syndicates Act, as well as before the ordinary courts of law.  This decision is a positive one for Quebec employers, as it protects the structure of workplaces and the allegiance of managers within organizations. 2018 QCSC 4781, para. 116 et seq. 2024 SCC 13, para. 47. 2024 SCC 13, para. 55.

Workplace Christmas parties are just around the corner. While such celebrations are a great opportunity to strengthen team spirit and acknowledge everyone’s hard work, it is important to remember that it is not only up to employers to make sure they run smoothly—their entire workforces, managers and employees alike, are also responsible. Just think of potential situations of harassment where alcohol and fun times are combined. Who is responsible for what when it comes to Christmas parties? Employer’s obligations Legal framework Generally speaking, many existing employer (and employee) obligations provided for in legislation, regulations or company policies, can be transposed to employer-organized Christmas parties. This is particularly true where harassment is involved. In recent years, the scope of legislation offering protection against harassment and violence in the workplace has broadened. In addition to the obligation to take reasonable steps to prevent psychological harassment1, employers, since 2021, must take measures to protect an employee who has been “exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace.”2 Even more recently, on November 23, 2023, the Minister of Labour introduced Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace (the “Bill”). Although the Bill is only at the introduction stage and may see a number of amendments, the Minister explains that its aim is to make workplaces healthier, more respectful and safer, and to eliminate unacceptable behaviour.3 Further information on Bill 42 will be provided in a separate publication. Employer’s management rights When an employer witnesses or otherwise becomes aware of inappropriate behaviour at a Christmas party it has organized, it is well within its rights to investigate and take appropriate action, including disciplinary action up to and including dismissal.4 For example, an employer could impose a three-day disciplinary suspension on an employee having committed a gesture of a sexual nature during a Christmas party.5 Dismissal was also deemed to be an appropriate measure for an employee who committed acts of violence against his colleague and former spouse at a Christmas party.6 An employer’s investigation can sometimes even cover events having taken place after a Christmas party, outside the workplace. For example, in a decision from 2022, an arbitrator reiterated that the employer in question was entitled to conduct an investigation into allegations of sexual assault and harassment that were said to have taken place in a hotel room after a Christmas party, because the connection between the personal activities and the employer was sufficient.7 Despite the private nature of the events, they had a negative impact on the work climate and, therefore, an employer investigation in which employees were required to cooperate was warranted.8 Similarly, another arbitrator upheld the dismissal of an employee who had assaulted his supervisor, even though the events had occurred during an after-party.9 Measures to avoid abusive and excessive behaviours Employers can implement a number of measures before their parties to avoid abusive and excessive behaviours, including: Reminding employees of applicable policies, including codes of conduct and harassment prevention policies Authorizing only a limited number of alcoholic drinks per person Closing the bar or ceasing alcohol service a few hours before the party’s end Making sure there is enough food, water and non-alcoholic beverages throughout the evening Providing individual hotel rooms Providing a safe-ride-home service Obligations of employees During employer-organized Christmas parties, employees who attend as part of their employment do so under the same status they hold with their employer.10 They must therefore comply with their various obligations, including having good manners and being civilized, not endangering their or their colleagues’ health and safety, using appropriate language and not engaging in harassment and, more generally, adhering to their employers’ policies. In a sense, the party becomes an extension of the workplace. In the specific case of managerial staff, employers are entitled to have higher expectations of exemplary behaviour. Moreover, when an employer investigates events that are said to have taken place during or after such a party, employees are required to cooperate in good faith. What about witnesses? As mentioned above, making sure that a Christmas party runs smoothly is everyone’s business. However, is it realistic to rely on employees to report problematic behaviour they may witness during such events? Is the duty of loyalty sufficient to create a general obligation to report all wrongful behaviour? The answer is not clear. As for managerial staff who are employers’ eyes and ears, they are even further bound by their duty of loyalty given their line responsibilities.11 Employers can therefore expect them to report problematic behaviour that takes place at a Christmas party. In the case of regular employees (non-managerial staff), the imposition of a general obligation to report all wrongful behaviour was deemed unreasonable,12 as such an obligation “[translation] jeopardizes the serenity of the work climate.”13 However, there are cases where the obligation to report is legitimate. It applies where the obligation is intended to protect the health and safety of colleagues and the public. The very nature of the duties performed by an involved employee will be decisive in determining the validity of the obligation to report.14 In all cases, that employee must dissociate themselves from the wrongful behaviour and avoid any participation. Lastly, despite the absence of a general obligation to report harassment, employers may validly encourage employees to report harassment, without making it mandatory.15 Conclusion Employer-organized Christmas parties are certainly something to look forward to. With the situation in recent years and the explosion of telecommuting and hybrid working conditions, such events are even more important to bring people together. However, they have to remain fun for everyone. With simple yet reliable measures, such as making everyone aware of their own responsibilities and mutual respect, such celebration can be a real success. Happy festivities to all! The Act respecting labour standards, CQLR, c. N-1.1, section 81.19. The Act respecting occupational health and safety, CQLR, c. S-2.1, section 51 (16). Office of the Minister of Labour and Minister responsible for the Mauricie and Nord-du-Québec regions, “Le ministre Jean Boulet présente le projet de loi 42, Loi visant à prévenir et à combattre le harcèlement psychologique et la violence à caractère sexuel en milieu de travail Gouvernement du Québec” (quebec.ca), November 23, 2023 (in French only). For more information, read the following bulletin: Lavery, “The return of Christmas parties: What employers need to know,” December 9, 2022, URL: The return of Christmas parties: What employers need to know (lavery.ca). Teamsters Québec, section locale 1999 and Univar Canada ltée (Jean-Martin Gobeil), 2020 QCTA 344. Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 500 (TUAC-FTQ ) and Royal Vézina inc. (St-Hubert), 2017 QCTA 304. Syndicat des salariés(es) de l’agroalimentaire de Ste-Claire (CSD) and Kerry Canada inc. 2022 QCTA 224. See also: CSN-Syndicat du personnel de bureau du CISSS de la Gaspésie and Centre intégré de santé et de services sociaux de la Gaspésie, 2023 QCTA 131. Syndicat des inspecteurs du RTM-CSN and EXO (Charles-David Lapointe), 2020 QCTA 24. Association internationale des machinistes et des travailleuses et travailleurs de l'aérospatiale, district 140, section locale 2309 and Servisair (Avo Minassian), D.T.E. 2009T-448 (T.A.). Shell Canada ltée and Travailleurs unis du pétrole du Canada, section locale 121 du SCEP, D.T.E. 2010T-68 (T.A.); Journal de Montréal and Syndicat des travailleurs de l’information du Journal de Montréal (CSN), 2015 QCTA 52. Id.; See also: Viterra inc. and Unifor, Local 2022, 2020 QCTA 565. Shell Canada ltée and Travailleurs unis du pétrole du Canada, section locale 121 du SCEP, D.T.E., supra, note 11, para. 88. Id. Journal de Montréal and Syndicat des travailleurs de l'information du Journal de Montréal (CSN), supra, note 11.

On July 9, 2023, major amendments to the Canada Labour Code 1 (the “Code”) came into force, and further amendments are set to come into force shortly. These amendments relate to Part III of the Code, which covers labour standards. They were provided for in the Budget Implementation Act, 2018, No. 2 2, which was assented to on December 13, 2018, but are only now coming into force. They essentially provide for three new obligations for employers, namely that they must (1) reimburse employees for reasonable work-related expenses, (2) provide employees with a written employment statement containing information relating to their employment and (3) provide employees with information respecting employers’ and employees’ rights and obligations. New provisions of the Canada Labour Standards Regulations 3 (the “Regulations”) have also been adopted to clarify these new obligations. REIMBURSEMENT OF REASONABLE WORK-RELATED EXPENSES With this first amendment, the government sought to compensate for the fact that it can be difficult for an employee to be reimbursed for work-related expenses, such as work uniforms, equipment needed to perform their duties and travel or training expenses, given that these are not included in the definition of wages set out in Part III of the Code.   It is also unlikely that employees would claim such expenses through legal action against their employer. The adoption of new provisions in this regard makes it easier for employees to have any reasonable work-related expenses they have incurred reimbursed. Under the new section 238.1 of the Code, an employee working in a federally regulated business is entitled to be reimbursed by their employer for reasonable work-related expenses. To process a claim for payment, the employer must assess the reasonableness of the expense and whether it is work-related. The new section 23.1 of the Regulations provides for a series of factors to consider in order to determine whether an expense is reasonable and work-related, particularly whether the expense is connected to the employee’s performance of work, whether it is required by the employer as a condition of employment or continued employment, whether it is incurred for a legitimate business purpose and not for personal use or enjoyment, whether the employer authorized it in advance and whether it is incurred by the employee in good faith. The employer must reimburse such expenses within 30 days of the day on which the employee submitted their claim for payment unless a written agreement or collective agreement specifies a different time limit. EMPLOYMENT STATEMENT Currently, federally regulated private sector employers are not required to provide documentation of employment status to their employees. Under the new section 253.2 of the Code, employers must provide employees with a written employment statement within their first 30 days of employment. This obligation comes into force 90 days after July 9, 2023. The new section 3.1 of the Regulations provides for 13 elements that must be included in an employment statement, including the employee’s job title, a brief description of their duties and responsibilities, the address of their ordinary place of work, the term of the employment, the duration of the probationary period, if any, a description of the necessary qualifications and any required training for the position, the employee’s hours of work and rules regarding overtime hours, and the employee’s rate of wages or salary. Employers must also provide employees with an updated version of the employment statement reflecting any change in the information it contains within 30 days of such change. Employers must retain a copy of these documents for 36 months following termination of employment. INFORMATION RESPECTING EMPLOYERS’ AND EMPLOYEES’ RIGHTS AND OBLIGATIONS Under the new section 253.1 of the Code, employers must, within the first 30 days of employment, provide each employee with “any materials that the Minister makes available and that contains information respecting employers’ and employees’ rights and obligations” as set out in Part III of the Code. Employers will also be required to provide employees with updated versions of these materials within 30 days of such versions becoming available. This new provision also requires employers to post and “keep posted” the most recent version of these materials “in readily accessible places where it is likely to be seen by employees.” Lastly, when an employer terminates an employee’s employment, the employer must, “not later than the last day of the employee’s employment,” provide the employee with the above-mentioned materials “that relate to terminations of employment.” These obligations come into force 90 days after July 9, 2023. ADMINISTRATIVE MONETARY PENALTIES The Administrative Monetary Penalties (Canada Labour Code) Regulations designate and classify violations of the provisions of Parts II and III of the Code and its regulations for which an administrative monetary penalty can be issued. Amendments have been made to these regulations to include the new obligations mentioned above, and to classify violations. Failure to comply with these new obligations exposes the employer to penalties ranging from $200 to $6,000, depending on the size of the business and the provision that has been violated. *** All federally regulated businesses must take note of these provisions to properly understand their new obligations. These provisions call for swift action on the part of concerned employers, especially to avoid monetary penalties. Do not hesitate to contact our team members for more information or any advice regarding these changes. R.S.C. (1985), c. L-2. S.C. 2018, c. 2. C.R.C., c. 986.