New Requirements for Quebec Employers: Personnel Placement Agencies and Temporary Foreign Workers

February 12, 2020

Does your company operate or use of the services of personnel placement agencies (also referred to as temporary employee leasing agencies) or temporary foreign worker recruitment agencies in Quebec, or does it hire temporary foreign workers? If so, these important legislative changes will certainly be of interest to you.

On August 27, 2018, we summarized the recent amendments to the Act Respecting Labour Standards (the "Act") in our article Amendments to Quebec’s Act Respecting Labour Standards: Employers, Please Fasten Your Seat Belts, This May be a Bumpy Ride.

As a follow up to these amendments, on January 1, 2020, the Regulation Respecting Personnel Placement Agencies and Recruitment Agencies for Temporary Foreign Workers (the "Regulation") came into force, also marking the coming into force of important provisions of the Act relating to personnel placement agencies, temporary foreign worker recruitment agencies and clients that use such agencies. The essence of these changes are summarized below.

Mandatory Licence

Personnel placement agencies and temporary foreign worker recruitment agencies ("Agencies") are now required to hold a licence issued by the Commission des normes, de l'équité et de la santé du travail (the"CNESST") in order to operate their business.

An Agency that was already in operation on January 1, 2020 must apply for a licence by February 14, 2020, in order to continue to operate in compliance with the laws. The licence is valid for a period of two (2) years, and any request for renewal of the licence must be received by the CNESST at least 60 days before its expiry.

For the client, this means that it cannot retain the services of an Agency if it does not hold a licence issued by the CNESST. Although not specified in the Act or Regulation, it is reasonable to expect that a client can continue to use the services of an Agency pending the issuance of an initial licence applied for before February 15, 2020.

The CNESST makes available to the public a list of licensed Agencies, thereby facilitating the verification by clients of an Agency's compliance. As of the date of publication, all licence applications are still being processed by the CNESST.

It must be noted that the CNESST may suspend or revoke an Agency's licence in the event of a violation of the Regulation.  An Agency whose licence has been suspended or revoked must wait two (2) years before it can submit a new application.

In addition, in the event of failure to comply with the licensing requirements, the Agency and/or the client may be fined between $600 and $6,000 for a first offence, and between $1,200 and $12,000 for any subsequent offence.

Additional Obligations for Agencies

All holders of an Agency licence must ensure that they comply with certain obligations, including obligations to provide information to the client with which they do business, in particular:

  • Within five (5) working days from the date a licence is first issued, the Agency that was already carrying on business as of January 1, 2020 without being licensed must notify any client with which it does business that it is now licensed;
  • The holder of an Agency licence must indicate its licence number on every document commonly used as part of the activities or for advertising purposes, in particular on invoices, contracts and website;
  • A personnel placement agency, which was already active on January 1, 2020, but that is denied a licence shall, upon receipt of the CNESST's decision, inform any client with which it does business (i) that it is no longer authorized to carry on the activities for which it was applying for a licence as of the date of such decision, and (ii) that any measure or provision intended to prevent or restrict the hiring of an employee of the agency by the client becomes without effect;
  • The holder of personnel placement agency licence must notably and promptly notify any client with which it does business of the termination of its activities, if any, indicating (i) the date on which its licence ceases to have effect and (ii) that any measure or provision intended to prevent or restrict the hiring of an employee of the agency by the client becomes without effect.

In addition, the Agencies will have to ensure, in particular, that they:

  • provide the employees they assign to a client with a document describing the work conditions applicable to them in the context of this assignment, including as it relates to wages;
  • provide the employees with the information documents made available by the CNESST concerning their rights and employers' obligations in respect of labour;
  • keep, for at least six (6) years, for each employee assigned to a client, the information on the total number of hours of work per day and per week, and the name and contact information of the client concerned.

It is also important to note that a personnel placement agency may no longer agree to provisions that have the effect of preventing the hiring of the employee by the client beyond a period of six (6) months following the beginning of the employee's assignment.

Differences in Treatment

The Act provides that an Agency may not grant an employee a lower rate of wages than that granted to employees of the client performing the "same tasks in the same establishment" solely because of his or her employment status, including because he or she is paid by such an Agency or usually works fewer hours each week. A careful examination of the tools used, responsibilities and qualifications required is therefore essential to determine whether the tasks of two (2) or more employees are the same.

Pecuniary Liability for Personnel Placement Agency Employees

The Act now expressly provides that a personnel placement agency and the client are jointly and severally liable to the employee for the pecuniary obligations set out in the Act respecting labour standards or the regulations (for example: payment of wages, vacation, etc.). The principle was already implied in Section 95 of the Act but is now clarified for agencies.

Thus, a client has a legal and financial interest in the agency's compliance with its pecuniary obligations under the Act and regulations.

Hiring Temporary Foreign Workers

Section 1 of the Regulation defines a temporary foreign worker as a foreign national who is staying or wishes to stay temporarily in Québec to carry out work with an employer under the Temporary Foreign Worker Program provided for in Division II of Chapter II of the Québec immigration Regulation.

It should be noted that the Temporary Foreign Worker Program (the "TFWP") allows employers to hire temporary foreign workers to address labour and skills shortages, including through a labour market impact assessment process, in accordance with Québec immigration Regulation.

An employer who hires a temporary foreign worker must inform the CNESST without delay of the worker's arrival date, the duration of his or her contract and, if the departure date differs from the end date of their contract, the date and reasons for his or her departure.

To do so, the employer must file a Déclaration d’embauche de travailleurs étrangers temporaires with the CNESST. The employer will also have to record this information in the registration system or register that it maintains in accordance with the Regulation respecting a registration system or the keeping of a register.

Conclusion

With the adoption of these new legislative measures, the Government of Québec is tightening the rules governing the operation and use of Agencies and the hiring of temporary foreign workers. In the current context of labour shortages, there is no doubt that these changes will have a significant impact on many employers in Québec.

This new legal framework could have an impact on issues concerning the question of the “real employer” of the agency employees. It will be interesting to follow the jurisprudential developments in that regard.

Kindly note that an application for judicial review contesting the validity of the Regulation was filed with the Superior Court of Quebec by two employer associations, on the grounds of the “vagueness” of the Regulation, among others. A hearing before the Court is scheduled for February 17, 2020. We will keep you informed of any developments in this matter[1].


[1] Court File: C.S. 500-17-111132-208.

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