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Complaint concerning a difference in working conditions

Workers may file a complaint with the CNESST if they believe that their working conditions are different from those of their co-workers who perform the same tasks, in the same establishment, solely because of their hiring date. These differences in working conditions are prohibited by the Loi sur les normes du travail.

Differences in working conditions based on, for example, seniority, professional qualifications, experience, performance or quality of work, are permitted as long as all workers with the same profile are treated the same.

Working conditions

Differences in working conditions based solely on hiring date are prohibited and are regulated by law. They include:

Examples of differences

 

Example 1

Antonio and 3 other workers were hired on June 15, 2020. He and his coworkers are entitled to a vacation indemnity of 6%, whereas workers hired before June 1 are entitled to an indemnity of 8%. Even if the minimum indemnity provided for by law is 4%, Angelo and the other 3 workers could file a complaint with the CNESST for differences in working conditions and claim the difference between their current indemnity and that of workers hired before June

  1. Their working conditions are less advantageous solely because of their hiring date.

Example 2

On September 1, 2019, Julie was hired as a cashier at a supermarket. As provided for in the collective agreement, she earns $14 an hour. Her co-workers, who are doing the same work as her, were hired a few weeks before the collective agreement was signed. They earn $14.50 an hour. The new collective agreement does not provide for any catch-up wage increase that would allow Julie to obtain the same wages as her co-workers who were hired shortly before her.
If Julie's lower wages are based solely on the hiring date, it is a wage disparity prohibited by law.

 

What does not constitute a difference in working conditions

Permanent or temporary adjustments to working conditions are permitted in certain circumstances.

Circumstances Permanent or temporary adjustments
Worker with a disability Working conditions can be adjusted permanently to enable them to work.
Reclassification or demotion of a worker or during a merger or internal reorganization Temporary distinctions are allowed while the corrective measures are carried out. The distinctions must be phased out within a reasonable time.
Presence of several pay scales in the company The employer must establish a single scale within a reasonable time based on certain criteria such as the number of workers or the size of the gap to be closed).
Examples that do not constitute a difference

 

Example 1

Until recently, Juan worked as a team leader in a workshop. He earned $20 an hour under the terms of his collective agreement. After several changes in the company, his position was abolished. He was reassigned to an operator’s position and is now paid $17 an hour.

Despite this reclassification, the employer may decide to maintain Juan's wage at $20 an hour pending indexation to this rate on the pay scale. In this case, the difference is allowed, since it is a temporary adjustment. Juan's co-workers would not have the right to use Juan's wage as a basis for comparison to claim a wage disparity.

Example 2

Unionized maintenance employees of the ABC company earn up to $18 per hour at the top of the scale provided for in their collective agreement. To increase its market share, ABC merges with XYZ, another company whose maintenance employees are paid at a maximum rate of $15 an hour.

In order not to penalize ABC staff, the employer could temporarily maintain this wage gap, without contravening the Loi sur les normes du travail. The company is required to establish a single scale for all its maintenance employees within a reasonable time.

 

How the complaints process works

Filing a complaint

A person who wishes to file a complaint can complete the File a complaint questionnaire. If the complaint is admissible, they will be directed to the appropriate instructions for filing an official complaint.

There are several steps in the complaints process. Throughout the process, the person who filed a complaint is asked to cooperate with various CNESST officers, in particular by providing the information and documents requested.

Representation of trainees

Trainees who complete 1 of the following 2 types of training periods may be represented:

  • training period required to obtain a permit to practice issued by a professional order
  • training period that is part of a study program

With their consent, a complaint may be filed on their behalf by:

  • a non-profit student rights organization
  • a pupil or student association
  • a group of pupil or student associations

Important

The worker has 1 year from the time they became aware of the distinction to file a complaint concerning a difference in their working conditions with the CNESST.

Analysis of the complaint

Once the complaint is filed, a member of the CNESST contacts the worker to verify whether the complaint is admissible. Among other things, they make sure that: 

  • the grounds for the complaint are provided for in the Loi sur les normes du travail (LNT)
  • the worker is an employee within the meaning of the LNT
  • their employer is subject to the LNT 
  • the person has no other recourses under a collective agreement or other act 
  • the complaint was filed within the time limit prescribed by the LNT

If the CNESST can follow up on the complaint, it notifies the worker and checks whether the disagreement can be resolved by communicating with the employer, for example, to explain the standards that apply. If this is not possible, a number of options are provided for to try to resolve the situation.

If the CNESST considers that it cannot follow up on the complaint, it notifies the worker and explains why. If the person disagrees with the decision, they have 30 days to contest it by completing the Request for review of the decision form. The CNESST has 30 days to respond.
 

Important

If the CNESST cannot follow up on the complaint, the worker may still request that their complaint be referred to the Tribunal administratif du travail. In these circumstances, the CNESST will not represent the worker, who must secure the services of a lawyer of their choice.

Investigation

The CNESST conducts an investigation to verify the merits of a complaint.

The role of the person mandated to conduct an investigation is to collect, verify and examine the information used to build a complete case in the event of legal action.

At any time during the investigation, the parties may reach an agreement, in accordance with the law, to resolve the situation. The CNESST will then stop its intervention.

The Act respecting public inquiry commissions and the Act respecting labour standards provide specific powers to the person mandated to conduct the investigation. If the person deems it relevant, they may:

  • visit and inspect an employer's workplace or establishment at a reasonable time
  • request information and documents
  • communicate with any person who could provide or verify information

If the investigation shows that the complaint is unfounded, the person who filed the complaint has 30 days to contest the decision by completing the Application for revision of decision form.

If the investigation shows that the complaint is founded, the CNESST refers the complaint to the Direction des affaires juridiques.

Important

If the CNESST cannot follow up on the complaint, the worker may still request that their complaint be referred to the Tribunal administratif du travail. In these circumstances, the CNESST will not represent the worker, who must make arrangements with a lawyer of his choice.

Transfer of the file to the CNESST's legal affairs department

Important

A complaint for a difference in working conditions is heard by the Tribunal administratif du travail.

If the judge determines that the complaint is founded, they may order the employer to:

  • no longer make the distinction
  • make the worker a member of a pension plan or give them the applicable employee benefits
  • pay the worker an indemnity to compensate for the loss resulting from the distinction

Laws and regulations

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