Bill 42 and the reorganization of the Quebec labour-related institutions

July 7, 2015

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Last June 12, Bill 42, entitled « An Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal¹ » (the « Loi Act to group the CÉS, the CNT and the CSST and to establish the ALT » or the “Act”), received Royal Assent. The broad lines of this Act are unequivocal: its purpose is to reorganize the labour-related administrative structures as they currently exist.

ESSENTIALLY, THE ACT PROVIDES FOR THE FOLLOWING:

the Commission de l’équité salariale (“CÉS”), the Commission des normes du travail (“CNT”) and the Commission de la santé et de la sécurité du travail (“CSST”) will be grouped into a new single administrative body named the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”);
the Commission des relations du travail (“CRT”) and the Commission des lésions professionnelles (“CLP”) will be grouped into a single tribunal named the Administrative Labour Tribunal (“ALT”).

The new structures are expected to be operational as of January 1, 2016, the date on which the main provisions of the Act come into force.

THE COMMISSION DES NORMES, DE L’ÉQUITÉ, DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL

This new commission will group together three bodies with very different purposes, even though they all possess inspection and investigative powers:

the CSST, which manages the compensation scheme for workers having suffered from workplace injuries and is responsible for the application of the Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”), the Act Respecting Occupational Health and Safety (“AROHS”) and their regulations;
the CNT, which is responsible for ensuring compliance with the Act Respecting Labour Standards (“ARLS”) and its regulations and, if necessary, instituting the administrative, civil or regu¬latory proceedings necessary to ensure employer compliance with the Act or claim amounts due to employees;
the CÉS, which is responsible for overseeing the job assessment process to ensure pay equity between men and women within an enterprise.

In the future, employers will deal with one organization, the CNESST. However, due to the distinctive character of the missions entrusted to the CNESST, it would not be surprising if, in fact, divisions for occupational health and safety, labour standards and pay equity were created.

Furthermore, as noted by the Conseil du patronat du Québec (“CPQ”) in its comments on Bill 42² [TRANSLATION] “[m]anagement of the new commission will inevitably have to take the appropriate measures to avoid any conflict with respect to potentially related issues in the application of different regimes.” The CPQ particularly refers to situations of psycho¬logical harassment, which can be the subject of both a labour standards claim and an employment injury claim and which must satisfy different criteria in both cases. The CPQ adds that [TRANSLATION] “[p]revention of conflicts of interest will also be necessary within the legal departments of the new commission, to the extent that certain lawyers employed by this organization will be called upon to represent employees pursuant to the Act Respecting Labour Standards.”³

THE ADMINISTRATIVE LABOUR TRIBUNAL

The Act provides that the ALT acquires the rights and assumes the obligations of the CRT and the CLP,⁴ which themselves also serve very different purposes. The CRT has jurisdiction regarding proceedings instituted under many labour related laws such as the Labour Code, the ARLS and the Act Respecting Labour Relations, Vocational Training and Workforce Management in the Construction Industry while the CLP has jurisdiction regarding proceedings instituted under the AIAOD and the AROHS. To reflect this diversity, the Act specifically provides that the ALT shall be separated into four divisions:

the labour relations division ;
the occupational health and safety division ;
the essential services division ;
the construction industry and occupational qualification division.

The Act provides for a standardization of the applicable procedure before the ALT and confers very broad powers to its president. For example, the Act provides that the president of the ALT will assign its members to one or more of its divisions and may reassign or temporarily assign a member to another division.⁵

The provisions pertaining to the assignment of a member to a section of the ALT are very important. CLP members have obviously developed medico legal expertise focused on employ¬ment injuries that members of the CRT have not. Conversely, CRT members have developed an expertise, particularly in the areas of employer/union labour relations and dismissals.

Although the Act provides that the president is to take specific knowledge and experience into account in assigning work to members,⁶ nothing requires him to do so. It will therefore be interesting to see whether the president of the ALT will favour a generalist approach whereby members of the ALT will be assigned to several divisions, or if, on the contrary, specialization of the members of the new tribunal will be preserved by assign¬ments to specific divisions.

For example, under current law, an employee who claims having been dismissed or having experienced reprisals for having suffered an employment injury may file a complaint before the CSST pursuant to section 32 of the AIAOD. The decision of the CSST can subsequently be contested before the CLP. However, the provisions of the Act do not specify, for example, how such a complaint will be dealt with in the future. Will the complaint be heard before a member of the occupational health and safety division of the ALT or by a member assigned to the labour relations division?

Another example of a situation that the Act does not definitively address is that of the rules of evidence and procedure applicable before the ALT. Currently, the CRT and the CLP have separate and distinct rules of evidence and procedure. The Act provides for a single procedure for proceedings before the ALT.⁷ However, it will have to be supplemented by the adoption of regulations containing specific rules of evidence and procedure before the ALT, the ins and outs of which we still know little about. However, these new rules may considerably affect the current manner in which such proceedings are currently conducted.

The Act also states that in the context of a hearing, an ALT member may visit the premises or order that an expert report be prepared by a qualified person who he designates to examine and assess the facts of a matter presented to him.⁸ Therefore, the adjudicator may designate and request that a third party provide him with an opinion on, and assessment of, the facts before him. The CLP currently possesses these powers,⁹ but the CRT does not. The Act does not specify whether this power will be limited to the occupational health and safety division or whether it will be applicable to all divisions. The generalization of this power is likely to have significant impacts on the way in which labour-related disputes are adjudicated before the new administrative tribunal.

OTHER ASPECTS OF THE ACT TO GROUP THE CÉS, THE CNT AND THE CSST AND TO ESTABLISH THE ALT

The Act also provides for the following changes:

The CNT is currently exclusively funded by employer contributions. The surpluses accumulated by the CNT in accordance with the provisions of the Act,¹⁰ which represent tens of millions of dollars, will be paid into the Consolidated Revenue Fund and credited to the Generations Funds, the aim of which is to reduce public debt.
The ALT will be mostly funded by employer contributions, particularly those paid in accordance with the AIAOD and the AROHS.¹¹
A worker whose employment injury claim is the subject of a cost sharing application by the employer will now be entitled to intervene in the context of such an application.¹² At first glance, since the transfer of amounts attributed to a file following an employment injury has no effect on the benefits received by a worker, the worker has little or no interest in intervening in such a dispute and this new right can only serve to burden the cost sharing process.
In a unionized environment, the deadline to file a complaint under section 47.2 of the Labour Code, which deals with complaints regarding union wrongdoing, is specified. The Act provides that the employee must file a complaint with respect to any such wrongdoing “within six months of the employee becoming aware of the actions giving rise to the complaint.”¹³ However, the Labour Code currently provides that such a complaint must be filed within six months, without reference to the awareness of the action giving rise to the complaint. Due to the delays that can occur between when a decision is made with respect to an employee and the exercise by the employee of this right as provided under the Act, employers will have to ensure that the measures taken regarding said employee are well documented since a file may resurface several months after a decision is made.
Under the Labour Code as it is currently drafted, a party seeking to file a decision of the CRT with the Superior Court for enforcement purposes must obtain the CRT’s permission. However, the Act eliminates this step and provides that the forced execution of a decision of the ALT is to henceforth be carried out “by the decision being filed with the office of the Superior Court”.¹⁴

CONCLUSION

Despite the planned dissolution of the labour-related bodies as they are currently constituted, the Minister of Labour, Employment and Social Solidarity has stated that their services and missions will be maintained.¹⁵ It remains to be seen whether, in fact, the CNESST and the new ALT will really preserve the expertise developed by their specialized predecessor organizations. The adoption of specific rules of evidence and procedure applicable before the ALT should also be closely watched.

¹S.Q. 2015, c. 15.
² Conseil du patronat du Québec, « Commentaires sur le projet de loi n° 42 », April 2015, (French only)
³ Id., 11.
⁴Act to group the CÉS, the CNT and the CSST and to establish the ALT, sec. 255.
⁵ Id., sec. 83.
⁶ Id.
⁷ Id.sec. 262 and 263.
⁸ Id.sec. 41
⁹AIAOD, sec.429.40.
¹⁰ Act to group the CÉS, the CNT and the CSST and to establish the ALT,sec. 240.
¹¹Id.,sec. 97 and following.
¹² Id.,sec. 113.
¹³ Id.,sec. 131 and 132.
¹⁴ Id.,sec. 51.
¹⁵ Journal des débats de l’Assemblée nationale, 1st sess., 41st legis., May 21, 2015, “Adoption du principe du projet de loi n° 42 – Loi regroupant la Commission de l’équité salariale, la Commission des normes du travail et la Commission de la santé et de la sécurité du travail et instituant le Tribunal administratif du Travail”, 11:30 a.m. (Mr. Hamad), (French only).

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Harassment and Violence in the Workplace: An Overview of Recent Legislative Changes Introduced by Bill 42

Introduction In 2020, faced with statistics showing that nearly one in two women and three in ten men believed they had suffered sexual harassment or assault in the workplace,1 the Minister of Labour expressed its intention to help prevent and address this issue. The government began by setting up a committee to examine cases of sexual harassment and assault (the “Committee”). Its mandate was to analyze how such cases are handled in workplaces across the province.2 The Committee made over 82 recommendations in its report titled Mettre fin au harcèlement sexuel dans le cadre du travail : Se donner les moyens d’agir [putting an end to sexual harassment in the workplace by developing the means to act], which was prepared in collaboration with law enforcement agencies and further to consultations with various stakeholders, including community groups, unions and employers , as well as groups of women workers. The government included a number of recommendations from the report into Bill 42.3 This Bill, which is aimed at preventing and fighting psychological harassment and sexual violence in the workplace, was assented to on March 27, 2024. It introduces major amendments to various labour laws, which are likely to change existing practices within organizations. The following is an overview of these amendments and their potential impact. A. Occupational health and safety The Act respecting occupational health and safety was first amended to introduce a definition of what constitutes“sexual violence,” whichcame into force on March 27, 2024, and reads as follows: Any form of violence targeting sexuality or any other misconduct, including unwanted gestures, practices, comments, behaviours or attitudes with sexual connotations, whether they occur once or repeatedly, including violence relating to sexual and gender diversity.4 This broad definition could very likely affect existing employer policies and give rise to a host of problems needing to be resolved by the courts to ensure proper application. Action programs and prevention programs [effective October 6, 2025]: When developing an action program (for businesses with 20 workers or less) or a prevention program (for businesses with 20 workers or more), employers will be required to identify and anticipate psychosocial risks and risks related to sexual violence that may affect workers in their establishments.5 B. Industrial accidents and occupational diseases New legal presumptions of employment injury [effective September 27, 2024]: The Bill introduces two new legal presumptions of employment injury to reduce the burden of proof for victims of sexual violence in the following situations: Where injuries and diseases are the result of sexual violence suffered by a worker and perpetrated by the worker’s employer, one of the employer’s executives in the case of a legal person or a worker whose services are used by such employer; and Where a disease occurs within three months after the worker has been the victim of sexual violence. The burden will then be on the employer contesting an injury of this nature to reverse the application of these presumptions. Handling employment injury claims will be even more difficult, as Bill 42 provides that employers will not have access to workers’ medical records prior to hearings before the Administrative Labour Tribunal. Employers prohibited from accessing medical records [effective September 27, 2024]: Bill 42 sets out stricter obligations for health professionals designated by employers. Only the health professional designated by an employer will have access to the medical record in the possession of the Commission des normes, de l’équité, de la santé et de la sécurité du travail concerning the worker’s employment injury.6 It will not be possible for the employer to obtain all information concerning a worker’s medical condition, because the health professional will be required to limit disclosure to only the information needed to provide the employer with a summary of the file and an opinion on how to handle the employment injury claim.7 The prohibition on access to medical records also carries important fines ranging from $1,000 to $5,000 for a natural person and from $2,000 to $10,0008 for a legal person. However, it does not preclude employers from obtaining medical records concerning the employment injury by way of an authorization or subpoena. Extension of time limit for filing a claim [effective September 27, 2024]: The new time limit for filing a claim for an injury or disease resulting from sexual violence is two years.9 In all other cases, the time limit for filing a claim is six months from the occurrence of the injury.10 Cost of benefits imputed to all employers [effective March 27, 2024]: As an exception to the principle that employers must cover the costs associated with employment injuries, where an employment injury is the result of sexual violence suffered by a worker, the Bill provides that the cost of benefits will automatically be imputed to the employers of all the units.11 However, we must bear in mind that the imputation of costs to all units will have repercussions as it will lead to an increase in the cost of compensation regime for all employers. C. Labour standards Bill 42 also introduces a number of amendments to the Act respecting labour standards, including the following. Adjustments to harassment prevention and complaint processing policies [effective September 27, 2024]: Such policies must now include: The methods and techniques used to identify, control and eliminate the risks of psychological harassment, including a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature. The specific information and training programs on psychological harassment prevention that are offered to workers and the persons designated by the employer to handle complaints or reports. The recommendations on behaviour to adopt when participating in work-related social activities. The applicable procedures for making complaints or reports to an employer or providing an employer with information or documents; details about the person designated to handle complaints or reports; and information regarding the employer’s obligation to follow up. The measures to protect the persons concerned by a psychological harassment situation and those who cooperated in processing a complaint or report regarding such a situation. The process for managing psychological harassment situations, including the process applicable to inquiries conducted by employers. The measures to keep complaints, reports, information or documents received confidential and, for the documents made or obtained in the course of managing a psychological harassment situation, the measures necessary to retain them for at least two years.12 The policy must form an integral part of the prevention program or action program under the Act respecting occupational health and safety [as of the effective date to be set by the government, which will be no later than October 6, 2025]. Harassment by third-parties [effective September 27, 2024]: Employers are expressly obliged to prevent psychological harassment “from any person.” This includes any third parties they do business with, such as customers, subcontractors and suppliers.13 The passage of time does not clean the slate [effective March 27, 2024]: An amnesty clause contained in a collective agreement will have no effect on disciplinary measures resulting from behaviours relating to physical or psychological violence within the meaning of the law.14 This major amendment is aligned with developments in case law on applying amnesty clauses in psychological harassment situations. Confidentiality of the psychological harassment complaint resolution process [effective September 27, 2024]: Where the parties to a settlement of a psychological harassment complaint do not wish to undertake to keep the agreement confidential, they must expressly agree in writing to waive the confidentiality obligation in the agreement.15 Punitive damages even in cases involving employment injury [effective March 27, 2024]: Where a worker’s psychological harassment complaint is upheld and they have suffered an employment injury resulting from the psychological harassment, they may also be entitled to punitive damages.16 The Administrative Labour Tribunal was previously prohibited from ordering an employer to pay punitive damages to a worker having suffered an employment injury resulting from psychological harassment.17 Expanded prohibition against reprisals [effective March 27, 2024]: In addition to the cases already provided for in the ALS, an employer may not take reprisals against a worker on the ground that the worker has made a report involving psychological harassment or cooperated in the processing of such a report or a complaint.18 Pratical considerations Given the many amendments introduced by Bill 42, all employers should keep abreast of new developments and best practices in preventing and handling harassment and violence in the workplace. In the short term, we recommend that employers: Hire experts to review and update their prevention of harassment and violence in the workplace policies before September 27, 2024. Depending on each situation, retain the services of a health professional who will play a proactive role and liaise with the employer in the handling of an employment injury claim. Explicitly define the terms of the mandate given to such expert in order to pinpoint what information is required to handle the employment injury claim. Schedule training sessions for all staff, including managers and executives. These training sessions should cover not only the aforementioned amendments, but also the procedure for reporting a sexual harassment or violence situation, filing and handling a complaint and making sure the process remains confidential. Inform members of their organization of the new definition and the updated company policy and establish response guidelines for managers who will have to deal with the various situations that can arise. Designate a person who will be in charge of enforcing and applying the harassment prevention and complaint processing policies. Carefully and meticulously document all aspects of inquiries conducted further to sexual violence or sexual harassment situations. Enlist the help of specialists in the field to help them identify and analyze the psychosocial risks and risks related to sexual violence that may affect workers in their establishment. Lastly, as regards handling employment injury claims, despite the fact that employers will no longer have to cover associated costs all on their own, employers may still need to handle claims or contest them in some situations, and they will have the burden of reversing the application of the presumptions benefiting workers. Limited access to medical records means more grey areas and more complex claims management. Given these significant changes, we believe it will be all the more important for employers to turn to qualified experts. When they do so, they should carefully set out the mandate that they wish to entrust to the expert in question to make sure that the opinion they obtain is detailed enough to adequately manage the employment injury claim. The terms of the mandate will need be drafted such that the expert understands whether the information requested is relevant for the employer to properly handle the claim. Our team is available to help you assess the impact that these many changes may have on your business. Statistics Canada, “Gender Results Framework: A new data table on workplace harassment,” released on February 12, 2024, online: The Daily — Gender Results Framework: New and updated data tables (statcan.gc.ca). This initiative was prompted by recommendation 138 of the report titled Rebâtir la confiance : Rapport du comité d’experts sur l'accompagnement des victimes d’agressions sexuelles et de violence conjugale [rebuilding trust: report from the committee of experts on support for victims of sexual assault and domestic violence], released in 2020. An Act to prevent and fight psychological harassment and sexual violence in the workplace, Bill42 (assented to on March 21, 2024), 1st Sess., 43rd Legis. (Qc) (hereinafter “B. 42”). The Bill’s provisions will gradually align with other legislative changes introduced by other recent bills, such as An Act to modernize the occupational health and safety system[3] and An Act respecting the regulation of work by children. Section 33, B. 42; section 1, Act respecting occupational health and safety (“AOHS”). Sections 35 and 36, B. 42; sections 59 and 61.2, AOHS. Section 5, B. 42; section 38, Act respecting industrial accidents and occupational diseases (“AIAOD”). Section 7, B. 42; section 39, AIAOD. Section 16, B. 42; section 458.1, AIAOD. Section 16, B. 42; section 271 and 272, AIAOD. Section 10, B. 42; section 271, AIAOD. Section 12, B. 42; section 327, AIAOD. Section 18, B. 42; section 81.19 Act respecting labour standards (“ALS”). Section 18, B. 42; section 81.19, ALS. Section 20, B. 42; section 97.1, ALS. Section 25, B. 42; section 123.17, ALS. Section 24, B. 42; section 123.15(4.1), ALS. s. 123.15(4) and 123.16, ALS. Section 21, B. 42; section 122(2.1), ALS.

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