Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)
Chapter IV - Larbour standards (Section 39.1 to 97)
Division VII.1 - Differences in treatment (Section 87.1 to 87.3)
No agreement or decree may, with respect to a matter covered by a labour standard that is prescribed by Divisions I to V.1, VI and VII of this chapter and is applicable to an employee, operate to apply to the employee, solely on the basis of the employee’s hiring date, a condition of employment less advantageous than that which is applicable to other employees performing the same tasks in the same establishment.
The same applies in respect of a matter corresponding to any of the matters referred to in the first paragraph where a labour standard pertaining to that matter has been fixed by regulation.
Any distinction in relation to pension plans or other employee benefits that is made solely on the basis of a hiring date and that affects employees performing the same tasks in the same establishment is also prohibited.
1999, c. 85, s. 2; 2002, c. 80, s. 55; 2018, c.21, s. 35.
The agreement and decree mentioned in this section are defined in paragraphs 4 and 5 of section 1 ALS.
The employee referred to in this provision is one who is "covered by a labour standard". It follows that the employee excluded from the field of application of the Act or not covered by a labour standard to which section 87.1 ALS refers, is also excluded from the application of this section, regarding the matter covered by the standard considered.
The matter covered in paragraphs 2 and 3 of section 87.1 ALS is the matter dealt with by a standard stipulated in divisions I to V.I, VI and VII of Chapter IV, namely:
- hours of work;
- statutory general holidays and non-working days with pay;
- paid annual leaves;
- rest periods;
- absences owing to sickness, an organ or tissue donation, an accident, domestic violence, sexual violence or a criminal offence;
- absences and leaves for family reasons or parental reasons;
- notice of termination of employment or layoff and work certificate;
- miscellaneous other standards (e.g.: uniform).
The same is true for a labour standard that deals with this matter and that is established by a regulation issued in application of the Act respecting labour standards.
As an illustration, the standards pertaining to retirement (Division VI.1) are excluded from the application of section 87.1 ALS.
The stipulated protection deals with the matters covered by the Act respecting labour standards. As a result, different conditions of employment affecting matters not covered by the Act could not be considered as prohibited differences in treatment.
It is worthwhile recalling that the condition of employment in question in paragraphs 2 and 3 of section 87.1 ALS is the one dealing exclusively with a matter covered by the aforementioned types of standards. When it involves a matter covered, the condition of employment about which the employee is complaining would have to be compared not with the provisions of the Act, but rather with the most advantageous condition of employment of which another employee performing the same tasks in the same establishment enjoys.
For example, under the Act respecting labour standards an employee is entitled to an annual leave indemnity equal to 4% of his gross annual wages. In actual fact, the conditions of employment applicable to the employees hired in the same establishment and performing the same tasks provide for an annual leave indemnity equal to 8% for employees hired before date X whereas for those employees hired after that date the indemnity is equal to 6%. The aforementioned employee is part of the second group and receives an indemnity equal to 6%. He could file a complaint under section 87.1 to claim the 2% difference by alleging that he is granted a condition of employment that is less advantageous than that granted to the other employees, solely by Reason of his hiring date.
This principle ensuing from section 87.1 ALS only applies in the field of prohibited differences in treatment and the resulting claim is based not on the provisions of section 99 of Act, but rather on those of sections 87.1 and following of Division VII.I.
As of June 12, 2018, pension plans and other employee benefits are covered by the protection provided under section 87.1 LNT. Accordingly, any distinction made solely on the basis of hiring date in relation to pension plans or other employee benefits that affects employees performing the same tasks in the same establishment is prohibited. However, application of section 53 of the Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance (2018, c. 21), means that the prohibition does not apply to distinctions related to pension plans and other employee benefits that existed before June 11, 2018.
It is with the other "employees performing the same tasks in the same establishment" that the comparison must be made. The establishment is a physical place where the work is performed.
The differences in treatment to which this provision refers are prohibited when they are based solely on the hiring date.