Le mardi 08 janvier 2008

The janitor and the labour standards

by: Me Serge Abud,

lawyer, PAPINEAU AVOCATS inc.

Along with certain general provisions of the Quebec civil Code, the Quebec Labour Standards Law (1) is the main legal source assessing labour standards for employees who are not under the federal jurisdiction.

This law being a public statute(2), it is not possible to escape its prescriptions, even with common consent.

This law also applies to janitors working in a co-owned building. Let's examine a few of its essential provisions that could cause problems in their case, especially if they are working «on call».

The janitor «on call»

A janitor could be required only on occasions, when unexpected and urgent problems happen. In a situation like this, the labour standard providing that an employee is presumed to be at work when he is at his employer's disposition at his place of work and must wait to be assigned a duty (3), does not apply, even if the janitor lives in the bulding. Otherwise, he would have to be paid all the time.

A janitor who has no definite work schedule should therefore systematically take note of his actual worked hours in order to claim the corresponding pay.

Work schedule

Since the Quebec Labour Standards law has no provision about work schedules, having one is not a garanteed right. However, some rules concerning the duration of work must be respected and taken into account.

Moreover, the Quebec Labour Standards law has no provision to garantee a minimum number of working hours to an employee. The 40 hour «regular workweek» only makes it possible to determine the time from which an employee is working overtime and must be paid be paid with a premium of 50% (wage and a half).

Article 1 of the law defines a «week» as a period of seven consecutive days from midnight at the beginning of a particular day to midnight at the end of the seventh day.

Therefore, the definition of a normal week as we know it (from monday to friday) is not relevant to determine when a week starts and ends. It is up to the employer to decide, making it clear in order to let the employees know when they are paid overtime.

Also, an employee may refuse to work more than fourteen hours per twenty-four hour period or more than four hours after regular daily working hours, whichever period is the shortest.(4).

The employer must give an employee a minimum rest period of 32 consecutive hours during a period of seven consecutive days. This rest period does not have to be fixed or even planned, as long as it was always actually given.

The minimum of three hours

Subject to caution, the first paragraph of section 58, reads as follow :

An employee who reports for work at his place of employment at the express demand of his employer or in the regular course of his employment and who works fewer than three consecutive hours, except in the case of superior force, is entitled, to an indemnity equal to three hours' wages at the prevailing hourly rate […].

This provision is effective when the employee was called to work three or more hours and was released before having completed three hours.

In the case of the «on call» janitor working less than three hours on an emergency call, his pay is limited to the actual time worked because of the very nature of his employment.

Otherwise, there is no such right as one to be paid for at least three hours.

The hourly rate of wages

The minimum wage payable to an employee is $8.00 per hour. The minimum wage rates are subject to change. You can check their validity by contacting the Commission des normes du travail. (6)

According to the Labour Standards of Quebec Act, the hourly rate does not have to be fixed. So, since the hourly rate may vary, the employer may apply different rates for a same employee doing different tasks, as long as the minimum wage rate is respected.

Incidently, except for the increases of the minimum wage rate and for overtime work, there is no provision in the Labour Standards of Quebec forcing employers to give salary raise over time.

Free boarding

Janitors often live in the building where they work. The Labour Standards clearly state that no benefit having pecuniary value may result in the employee receiving less than the minimum wage.(7).

So, giving free boarding to a janitor cannot result in paying him less than the minimum wage. In other words, the salary for a given number of hours worked must be paid in money and cannot be less than the minimum wage. The boarding is given in addition to the salary and its value is to be included in the janitor's total income for taxation purpose.

If the janitor has to pay his rent, the employer may not deduct it from the janitor's salary unless he obtained a written permission, which is revocable at any time, for this very purpose.

Conclusion

If you wish to avoid the many misunderstandings that happened since the adoption of this law, you shoud visit the web site of La Commission des Normes du Travail at www.cnt.gouv.qc.ca. This site is very interesting with detailed explanations of the different sections of the law and excerpts of jurisprudence.

1 L.R.Q. c. N-1.1

2 Quebec labour standards law, section 93

3 Ibid., section 57

4 Ibid., section 59.0.1

5 Ibid., section 78

6 Quebec labour standards regulations, section 3

7 Quebec labour standards law, article 41