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. The employer shall remit the sums so withheld to their intended receiver.
1979, c. 45, s. 49; 1989, c. 38, s. 274; 2002, c. 80, s. 10.
Section 49 is an exception to the general principle whereby the employee is entitled to the entirety of his remuneration; it must be interpreted restrictively.
The first paragraph of this section refers to the deductions from the wages made for the benefit of a third person. The employer may make this deduction without the express consent of the employee because he is authorized to do so under a law, a regulation, a court order, a collective agreement, a decree or a mandatory supplemental pension plan. One must understand that in these cases, the employer does not do this at his own initiative.
No other deduction, whatever the nature, may be made by the employer from the wages unless the employee consents thereto in writing for a specific purpose also stipulated in writing. The expression "for a specific purpose" is in opposition to a general deduction without a precise indication of the debt. The employee must know exactly the elements that make up this deduction, for example the expiry date of the deduction. It is essential that the parameters of the debt be specified in writing using particulars such as: the reason for the deduction, the amount in question, the duration of the deduction, the frequency of the deduction or any other necessary particular. Sections 85 and 85.1 ALS specify the deductions related to work clothing or material.
It is important to note that the written authorization of the employee, allowing the deduction of certain amounts from wages, may be revoked in writing at any time. The effect of such a revocation will be to prohibit the employer from making any such deduction whatsoever.
Opposability of means of defence against the Commission
When the Commission makes a claim on behalf of an employee, it does not act as the representative of the employee but rather in its own name, pursuant to the Act (s. 39, para. 8) and s. 98 ALS). In this capacity, it is not possible to oppose against the Commission the means of defence that would be opposable against the employee personally, except when the amount of money owed by the employee to the employer is liquid and exigible under Article 1673 of the Civil Code of Québec, it would then be a legal compensation. In fact, three conditions are required:
Recourse in the event of a deduction
The nature of the claim depends on the type of deduction made from the wages. For example, the deduction made for an annual leave indemnity should pave the way for a "claim for an annual leave indemnity that was not paid" under sections 74 or 76 ALS, rather than to a "claim for a sum deducted illegally" under section 49 ALS. The claim will be based on section 49 only if the main issue of the case is that the deduction was not made in accordance with that section.