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.
Differences in working conditions based solely on hiring date are prohibited and are regulated by law. They include:
- hours of work
- statutory holidays and non-working days with pay
- rest periods
- absences due to sickness or an accident
- family or parental leave and absences
- notice of termination of employment or layoff and certificate of employment
- the uniform, equipment and tools provided and training and travel costs
- the pension plan and other employee benefits, if the difference did not exist on June 11, 2018 (the differences are maintained if they existed before June 11, 2018)
- Examples of differences
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
- Their working conditions are less advantageous solely because of their hiring date.
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
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.
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
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
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.
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
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