Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)
Chapter IV - Larbour standards (Section 39.1 to 97)
Division IX - Effect of labour standards (Section 93 to 97)
An employer who enters into a contract with a subcontractor, directly or through an intermediary, is responsible jointly and severally with that subcontractor and that intermediary for the pecuniary obligations fixed by this Act or the regulations.
1979, c. 45, s. 95; 1994, c. 46, s. 8.
This section stipulates that the employer-contractor is jointly and severally responsible for the obligations towards the employees of the subcontractor or intermediary who have been assigned to work in the performance of the contract for services, when these obligations are not met by the latter.
For example, an enterprise – the "subcontractor" or the "intermediary" – is doing work for an employer "contractor" or for several employers, more often than not under a subcontracting contract. The subcontractor or the intermediary– who is also an "employer" within the meaning of the Act (see the interpretation of paragraph 7 of section 1 ALS) – does not meet all his pecuniary obligations for various reasons. One of his employees then files a complaint with the Commission des normes du travail to claim wages.
If the evidence shows that amounts owing were not paid and that there is a contractual relationship between the employer-contractor and the subcontractor or intermediary, the latter, as co-defendants, will be held jointly and severally responsible towards the employee, notwithstanding any contrary agreement (s. 93 ALS).
The terms "subcontractor" and "intermediary" are not defined in the Act. Here are some useful definitions: "Contractor: one that performs work or undertakes to do something; subcontractor: an individual or business that contracts to perform part or all of another’s contract; intermediary: one that performs a portion of the work granted to a principal contractor."
The Act does not precisely define what it means by "the pecuniary obligations fixed by this Act or the regulations". These obligations should, among other things, include the wages and all benefits of a pecuniary nature that result from the application of the Act and its regulations.
The employer-contractor is responsible for the payment of pecuniary obligations only insofar as they result directly from the performance of a subcontracting contract by the subcontractor or the intermediary.
This responsibility arises from the first day that the subcontracting contract is awarded and ends at the expiry of said contract. In other words, the deadline for the pecuniary obligation must be during the performance of the contract or at the end of said contract.
Moreover, when for the period contemplated by the claim, the employees of the subcontractor or of the intermediary performed work on a concurrent basis for several contractors, the joint responsibility of the latter will be determined in proportion to the amounts stipulated or that result from the application of the respective contracts of each party.
It is important to point out that the courts have concluded that a restrictive interpretation must be given to this provision.
Also see the interpretation of section 96 ALS.