Part I - Act respecting labour standards
The Act respecting labour standards was assented to on June 22, 1979. It was then amended several times and occasionnaly with the sole purpose of ensuring some concordance with various pieces of legislation.
The Act respecting labour standards entered into force on April 16, 1980 with the exception of section 75, which entered into force on April 1, 1981, and a few provisions mentioned as "not in force" in this document. These provisions will enter into force on the date or dates that will be determined by government proclamation.
The Act respecting labour standards was amended by the Act to amend the Act respecting labour standards and other legislative provisions (2002, c. 80) assented to on December 19, 2002. The version that we are presenting takes into account the amendments that were made to the Act.
In this Act, unless the context indicates a different meaning.
"Spouses" are: a) those who are married or in a civil union and cohabiting;
b) for those who are not married and who are the father and/or mother of the same child, no specific cohabitation period is required; they must simply be living in a marital relationship to be considered "spouses";
c) two persons who have been living together for one year or more, regardless of whether they have children. For the notion of cohabitation, see the interpretation of the last clause of section 1, page 11.
There is no obligation set down in the Act to establish or set an employee’s working conditions in a written agreement. Therefore, the agreement referred to here may be verbal or even tacit.
This means an employee in the employ of a natural person, which excludes all employees working for "a legal person" (corporations, joint stock companies) even if their duties may be similar to those of a domestic; they are therefore considered to be employees within the meaning of the Act respecting labour standards (ALS), and they do not have the status of domestics.
A domestic is a person who performs domestic duties in a dwelling for a natural person, even if in addition to these duties, he takes care of or provides care in that dwelling to a child, or to a sick, handicapped or aged person. In the latter case, the employee must perform domestic duties not directly related to the immediate needs of the person taken care of to be considered a domestic within the meaning of the Act.
The expression "provide care to" means providing a person with all the attention required and carrying out all the duties necessary to ensure his safety and well-being in general.
The immediate needs of a person depend on the state of that person and may vary from one individual to another. Therefore, washing the clothing of a young child is a task related to the "immediate needs" of that child.
It is important to not confuse the definition of “domestic” with that of “person who takes care of or provides care to others” stipulated in the exclusion of paragraph 2) of section 3 ALS.
Since June 26, 2003, a domestic who resides with his employer has benefited from the general minimum wage rate (s. 3 RLS) and a regular workweek of 40 hours (s. 52 ALS), following the repeal of sections 5 and 8 of the Regulation respecting labour standards. Consequently, labour standards apply to domestics, regardless of whether or not they live with their employer.
The term "any person" is an indicator that this definition must be given a very broad interpretation. The notion of employer is closely linked to the definition of "employee" found in paragraph 10 of section 1 ALS.
This is a notion that evolves according to the changes noted in the labour relations field (see the interpretation of section 95 ALS).
Wages include, in addition to the remuneration, all the other benefits having a pecuniary value due for the work or services performed by an employee. Moreover, as soon as an employee receives any remuneration whatsoever for the work done, regardless of whether it is called a "bonus", "commission", "reward" or other, it is considered wages.
However, the "bonus" for the Christmas period generally represents a present and, as such, cannot be considered part of wages, contrary to other sums of money paid by the employer in relation to productivity, performance at work or for another reason.
It is important to note that the Commission’s jurisdiction regarding claims for wages is limited. Indeed, the Commission may only claim the benefits having a pecuniary value that result from the application of the Act respecting labour standards or one of its regulations. This restriction is found in section 99 ALS.
Fringe benefits, granted to the employee in lieu of a portion of his wages, fall within the definition of "wages" within the meaning of paragraph 9 of section 1 ALS; however, fringe benefits that depend on particular events and of which the employee will not necessarily benefit, such as dental insurance premiums and life insurance premiums paid by the employer, are not wages. See the interpretation of section 41 ALS on the minimum wage and benefits having a pecuniary value.
Workmen’s compensation, health insurance, employment insurance and private salary insurance benefits are not considered wages within the meaning of the Act respecting labour standards.
It should be pointed out that this definition is much broader than that found in the Labour Code; it therefore encompasses a very large number of workers. More specifically, even managerial personnel are considered to be employees within the meaning of the Act.
The definition of the word "employee" includes two major elements. The first establishes that an employee is a person who carries out work for an employer and who is entitled to a wage; this is a contract between a natural person who hires out his services and another person (natural or legal) who accepts such hiring of services in consideration of pay. One notes in this relationship the presence of the following elements: existence of a position of authority, establishment of a work context, economic dependence related to the source of income (legal subordination). The contract may be written or verbal. This is the understanding of a classic employee.
There cannot be a contract of employment without consideration, a remuneration that the employer undertakes to pay. In this sense, the contract of employment differs from voluntary work. Moreover, the Act respecting labour standards does not deny the existence of voluntary work. This point is dealt with at greater length in the interpretation of section 40 ALS.
Jurisprudence has established that commissions are a method of remuneration that falls within the framework of the definition of wages within the meaning of the Act respecting labour standards and that the effect of this method of remuneration is not to exclude a worker thus paid from the definition of employee.
The second part of the definition refers to the worker who is party to a contract of employment including the elements listed in subparagraphs i, ii, iii, namely a person who presents the degree of autonomy of a dependent contractor. A dependent contractor is someone who, although benefiting from a legal subordination that is not as close as that of a classic employee, remains closely linked to an employer in that he is directly dependent economically on the employer.
To determine whether or not we are in the presence of an employee, we must see if the contract in question is a contract of employment or a contract for services. A contract of employment must include elements of hire of services and pay agreed upon, whereas a contract for services is mainly identified by its independent nature regarding the performance of the work and by the notions of profits and losses in the performance of the contract. In fact, in order for there to be a contract for services, there must be no legal subordination relationship within the meaning of the aforementioned elements.
When the conditions of the contract of employment (verbal or written) are such that a worker can incur financial losses or make profits, the application of the notion of profits and losses elaborated by the jurisprudence becomes decisive. Indeed, if the financial risk for the worker is real, he is a self-employed worker and, from that point on, is not subject to the Act.
A worker may benefit from the advantages of certain laws (income tax) as a self-employed worker or otherwise and be considered an employee under the Act respecting labour standards.
Employee who is incorporated or having registered a business name
To determine the status of a worker who incorporates or who registers a business name, certain additional criteria specific to this situation will have to be taken into account:
The Court of Appeal has had to rule on this question on a few occasions, in particular in the following cases:
Since May 1, 2003 section 86.1 ALS has stipulated that an employee is entitled to retain the status of employee where the changes made by the employer to the mode of operation of the enterprise do not change that status into that of a contractor without employee status (see the interpretation of section 86.1 ALS on this subject).
Uninterrupted service is the period during which an employee is considered to be in the service of his employer. Therefore, there is uninterrupted service even if an employee is away from work, for example, on paid leave, unpaid leave, sick leave, a strike, a lock-out or following an occupational accident. It should be noted that uninterrupted service is not interrupted by the alienation or concession in whole or in part of the undertaking (see the interpretation of section 97 ALS).
It is important to distinguish the notion of uninterrupted service, found in the Act, from that of seniority, which generally is related to the application of a collective agreement. Indeed, a collective agreement may establish that seniority will be calculated, for example, in hours or according to precise dates with a view to gaining access to privileges or rights resulting from the agreement itself, whereas uninterrupted service corresponds to the employee’s uninterrupted period of service.
The main objective of the notion of "uninterrupted service" is to maintain the employment relationship when certain events occur which interrupt the performance of work of the employee for his employer without severing the contractual relationship.
Uninterrupted service accrues as soon as a right stipulated in the Act respecting labour standards applies to the employee.
Uninterrupted service also accrues during the period in which fixed term contracts succeed one another, provided however that one may not conclude that there was a non-renewal of the contract at the time of an interruption of work during that period.
The proof of the non-renewal of the contract lies with the employer who will have to show that the interruption of work ensued from the end, the extinguishing of the contract of employment, the severing of the employment relationship, and that it was following the conclusion of a new and separate contract that the employee returned to work.
This is the legislative confirmation of a principle already established by jurisprudence whereby all of the successive fixed term contracts may constitute only one contract for an indeterminate term.
To establish the uninterrupted service in the case of a seasonal worker, one must consider the true intention of the parties to "continue the contract" from year to year. Simply "mentioning" that it is a new contract each year does not suffice; the real intention of the parties must be considered.
The following elements should notably be taken into account:
All these facts must be taken into consideration to determine whether or not an employee has uninterrupted service. None of these items taken individually can be a determining factor.
The notion of cohabitation of spouses also refers to employees whose spouse must be absent for the reasons mentioned. This is the case of hospitalized or permanently incarcerated spouses and spouses who are temporarily absent, whether for their work in another region or abroad, or for any other temporary absence. These employees are entitled to the same leaves and absences as well as to the same right to refuse to work beyond their regular work hours due to family obligations as are spouses who live together. However, these spouses must not cohabit with another spouse.
Persons to whom subparagraph 3 of the first paragraph applies are considered to be cohabiting despite the temporary absence of one of them. The same rule applies if one of the persons is required to live permanently in another place for health reasons or because of imprisonment, unless the other person is cohabiting with another spouse within the meaning of that subparagraph.
The notion of cohabitation of spouses also refers to employees whose spouse is absent for the reasons indicated. This is the case of permanently hospitalized or incarcerated spouses and spouses who are temporarily absent, either for their work in another region or abroad or for any other temporary absence. These employees are entitled to the same leaves and absences, and to the same right to refuse to work beyond their regular working hours due to their family obligations as spouses who live together. However, these spouses must not live with another spouse.
1979, c. 45, s. 1; 1981, c. 9, s. 34; 1990, c. 73, s. 1; 1992, c. 44, s. 81; 1994, c. 12, s. 49; 1996, c. 29, s. 43; 1999, c. 14, s.15; 2002, c. 6, s. 144; 2008, c. 30, s. 1.