In June 2018, amendments made to the Quebec Labor Standards Act (LSA) included additional obligations and responsibilities for personnel placement agencies and temporary foreign worker recruitment agencies. These amendments now are on the verge of being enforced.
The amendments were only to take effect on the date the government adopted a regulation setting out the standards and procedures for enforcing the amendments to the LSA.
On April 10, the Quebec minister of labor, employment and social solidarity published a draft regulation respecting personnel placement agencies and recruitment agencies for temporary foreign workers.
Although the introductory text to the draft regulation states that “[t]he impact study shows that the proposed measures will have an insignificant impact on enterprises,” our analysis of the draft leads us to conclude that it would impose significant constraints on the agencies. The beneficiaries of this reform appear to be agency workers and client enterprises.
The draft regulation would establish a mandatory licensing scheme for agencies:
- To obtain an operating license issued by the commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST—Committee on Standards, Equity, Health and Safety at Work), the agencies and their officers would have to meet a series of criteria relating to integrity, transparency and solvency.
- These agencies and their officers would have to be in good standing with various governmental departments and bodies, both in terms of compliance with laws and the payment of fees or contributions. For example, an agency could be disqualified if “in the five years preceding the application, the person, partnership or other entity has been condemned by an irrevocable decision of a court relating to discrimination, psychological harassment or reprisals, as part of employment” or because of criminal or penal convictions connected with the carrying on of the activities covered by the license application.
- All licenses would have to be renewed every two years and, in the absence of new facts, a period of two years would have to elapse before a new license application could be filed following a denial.
- Applications for a placement agency license would have to be supported by the payment of security in the amount of $15,000 Canadian dollars (approximately U.S. $11,213) to guarantee the protection of employees’ rights under the LSA.
Protection of the Rights of Agency Employees
The draft regulation would require agencies to take various measures to promote the exercise by employees of the rights protected by the LSA. For example:
- The agency would have to provide the employee it assigns to a client enterprise with a document describing his or her working conditions and identifying the enterprise in question.
- It would have to also provide the employee with the documents made available by the CNESST concerning employees’ rights and employers’ labor obligations.
- The agency would have to remind the client enterprise of its obligations regarding employee health and safety.
- The agency could not charge fees to an employee for his or her assignment or training.
- Finally, restrictions on the hiring of agency employees by a client enterprise could not exceed six months following the beginning of the assignment.
Administrative Measures and Appeals
The CNESST could suspend an agency’s license at any time in the event of a breach of the requirements and, once the draft regulation has taken effect, the agency would be able to appeal the CNESST’s decision to the administrative labor tribunal.
Procedures for The Forthcoming Adoption of The Draft Regulation
Anyone wishing to comment on the draft regulation may submit them in writing to the minister during the 45-day period beginning on April 10. It is possible that the minister will be pressured to relax what amounts to a restrictive regulatory framework.
At the end of this 45-day consultation period, the minister may proceed with the formal publication of the regulation, which will take effect 15 days after publication.
Agencies that are already operating on the date the draft regulation takes effect may continue to operate, provided they apply to the CNESST for a license within 45 days of that date.
All the provisions of the LSA relating to agencies will become law at the same time as the regulation, including Section 41.2 of the LSA, which prohibits a placement agency from paying an employee at a lower rate of wage than that granted to the employees of the client enterprise who perform the same tasks in the same establishment solely because of the worker’s employment status.
Guy Lavoie, Véronique Morin and Jean Sébastien Massol are attorneys with Lavery Lawyers in Montreal. © 2019 Lavery Lawyers. All rights reserved. Reposted with permission of Lexology.