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)
Amalgamation or reorganization of an enterprise
The conditions of employment applied to an employee pursuant to a special arrangement for the handicapped and the conditions of employment applied temporarily to an employee following a reclassification or demotion, an amalgamation of enterprises or an internal reorganization in an enterprise shall be disregarded for the purposes of section 87.1.
Taking into consideration
The wages and wage rules temporarily applied to an employee to prevent the employee from being disadvantaged owing to the employee’s integration into a new wage rate, a wage scale whose range has been modified or a new wage scale shall also be disregarded, provided that
- the wage rate or wage scale is established to be applicable, subject to the situations referred to in the first paragraph, to all employees performing the same tasks in the same establishment; and
- the difference between the wage applied to the employee and the rate or scale established to be applicable to all such employees is progressively eliminated within a reasonable period of time.
The first paragraph stipulates that when applying section 87.1 one must not take into account:
- conditions of employment, both temporary and permanent, that are granted to a handicapped person pursuant to a special arrangement. These conditions cannot serve as a basis for comparison;
- conditions of employment that are applied temporarily to an employee following a reclassification or demotion, an amalgamation of business or other internal reorganization. These temporary conditions of employment cannot serve as a basis for comparison.
The second aforementioned case is that of an employee who, following his reclassification, demotion, an amalgamation of business or internal reorganization, sees his conditions become more advantageous than those attached to the position resulting from this reclassification, demotion; or those granted to other employees following the amalgamation of business or internal reorganization. However, the conditions of employment of this employee must take on a temporary and not a permanent character. The result is that these conditions of employment must be standardized within a reasonable time period.
Moreover, the second paragraph of section 87.3 ALS stipulates that the wages and the related rules that are applied temporarily to an employee to avoid him being put at a disadvantage by reason of his integration either in a new wage rate or new pay scale cannot serve as a comparison in the application of section 87.1 ALS. These differences in wages that exist temporarily will not be taken into account provided that the two conditions stipulated are respected, namely:
- the new wage rate or the new wage scale must be established to be applicable to all the employees performing the same tasks in the same establishment, subject to the situation mentioned in the first paragraph of section 87.3 ALS;
- the difference between the wage applied to the employee temporarily outside the scale and the new rate or the new wage scale must be progressively eliminated within a reasonable time period.
Within the context of this integration, it is possible that the employee may temporarily receive a remuneration that is outside the scale, for the time required to eliminate the wage difference within a reasonable time period.
An illustration of the foregoing would be the case where, in an undertaking, there are two wage scales. The first one between $20 000 and $50 000 for employees on the job since January 1, 2005 and the second between $15 000 and $40 000 for employees on the job since January 1, 2006. To comply with the Act, the employer establishes a single pay scale applicable to his employees who perform the same tasks in his establishment, and which is between $15 000 and $45 000. To avoid employees with wages in excess of $45 000 being put at a disadvantage by reason of their integration in the new pay scale, the employer could, temporarily, decide to grant them special wage conditions, until the new scale reaches the wage conditions of these employees.
The employer must act in such a way that the wage difference is eliminated progressively. The wage increases, if any, that the employee outside the scale could receive, should not be the same as those of the other employees included in the scale who perform the same tasks in the same establishment as under such a scenario, the difference would never be eliminated.
Moreover, this elimination must take place within a reasonable time period, which could vary from one case to the next. The reasonable nature of the time period is determined on the basis of all of the elements likely to affect the elimination and the means implemented to achieve this elimination. The number of employees, the extent of the difference to be made up, the time period during which the conditions of employment are in force, and the employer’s economic capacity are all factors that should be analyzed when determining if the time period is reasonable.
1999, c. 85, s. 2.