On May 24, 2022, the Quebec National Assembly passed Bill 96, which became An Act respecting French, the official and common language of Québec (the “Act”), an Act to primarily amend the Charter of the French Language (the “Charter”), also known as Bill 101.
Although the Act has been passed, it is important to note that it has not yet been sanctioned. The majority of its provisions will come into effect on the date it is sanctioned by the Lieutenant Governor, which may occur in the next few days.
This article focuses on the main changes and additions to the Charter that will have implications for employers operating in Quebec.
Application of the Charter to Federal Enterprises
From now on, the Charter provides that none of its provisions shall be interpreted in such a way as to prevent its application to any enterprise or employer that carries on its activities in Quebec.
In light of this section, it can be inferred that the legislator considers that the Charter now applies to all enterprises carrying on their activities in Quebec, regardless of whether they fall under federal or provincial jurisdiction[1]. For example, banks, interprovincial transportation companies and telecommunication companies may now be covered by these new provisions.
Application of the Francization Program to Companies with More Than 25 Employees
Before the Act came into effect, enterprises that employed 50 or more people during a six-month period had to register with the Office within six months of the end of that period and receive a certificate of registration. These companies were then required to submit an analysis of their linguistic situation to the Office within six months of the date of issuance of the registration certificate in order to develop a francization program, if necessary.
The Charter now provides that companies employing 25 people or more are subject to this obligation to register with the Office. However, these companies have a reduced period of three months from the date of issuance of the registration certificate to submit an analysis of their linguistic situation to the Office.
From now on, employers having between 25 and 49 employees may be ordered to create a francization committee to develop a francization program. The previous provisions only applied to employers with more than 50 employees.
The Act provides that employers have three (3) years from the date the Act is sanctioned to comply with these new obligations related to the francization of enterprises.
Employer Communications with its Employees, the Employment Contract and the Offer of Employment
In terms of employers’ communications with their employees, the Charter provides the general obligation of employers operating in Quebec to respect the workers’ right to carry on their activities in French.
In this regard, employers must ensure that their written communications are in French.
In addition, the Charter now provides the general principle that the individual written contract of employment between an employer and an employee must be in French.
However, it specifies that in the case of a contract of employment characterized as an adhesion contract[2], the contract may be drafted in a language other than French only (1) after the employee or applicant has read the French version of the contract and (2) the parties to the contract have expressly consented to its being drafted in another language.
As for employment contracts that do not qualify as contracts of adhesion, the Charter establishes that they may be drafted exclusively in a language other than French if this is the express wish of the parties.
In addition, written employment contracts which were signed before the date the Act comes into effect will have to be translated into French if the employees request it. The Act requires that the translation be done as soon as possible.
Finally, the Act provides that when an employer advertises a job opening in a language other than French, the employer must ensure that the advertisement is also made simultaneously in French. The employer must also ensure that these offers are disseminated by means of transmission of the same nature and reach a target audience of comparable size, all things considered.
The Prohibition Against Retaliation: Protection Against Prohibited Practices Regarding the Language of Work
In the previous version of the Charter, an employer was prohibited from punishing employees who only spoke French, who did not have sufficient knowledge of a language other than French, or who demanded the respect of a right granted to them by the Charter.
The new version of the Charter reiterates this principle and establishes, among other things, that an employer may not impose reprisals on its employees in the following situations:
- If the employee has demanded compliance with a Charter right;
- In order to discourage the employee from exercising such a right;
- Because the employee or candidate does not have the knowledge or a specific level of knowledge of a language other than French when the performance of the task does not require it.
If a person believes that he or she has been the victim of a prohibited practice by his or her employer, he or she can always file a complaint with his or her union or with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) within 45 days of the occurrence of the prohibited practice in question.
The Administrative Labour Tribunal (the “TAT”) has jurisdiction to hear the complaint of a non-unionized person. The complaint of a unionized person will be heard by a grievance arbitrator appointed under a collective agreement.
Language Requirements in Employment
Previously, the Charter provided that an employer was prohibited from requiring knowledge of a language other than French for access to a job or position unless the performance of the task requires such knowledge.
The Charter has the same principle, but expands this prohibition to include recruitment, hiring, transfer or promotion.
Also, the Charter now provides that the employer must have taken all reasonable measures to avoid imposing such a requirement.
In order to respect its obligations in this regard, the employer must ensure that the three (3) following conditions are met. Thus, the employer must:
- have assessed the actual language requirements associated with the tasks to be performed;
- have ensured that the language skills already required of other employees were insufficient for the performance of those duties;
- have restricted, as much as possible, the number of positions that require a specific knowledge or level of knowledge of a language other than the official language.
However, it is important to note that the Act states that the employer’s compliance with these obligations must not result in an unreasonable reorganization of its business.
Finally, since the Charter was amended, when advertising a position requiring knowledge of a language other than French, the employer must indicate the motives which justify this language requirement.
Discrimination and Harassment Regarding the Language of Work
With the Act coming into effect, the Charter explicitly recognizes the employee’s right to benefit from a workplace that is free of discrimination or harassment because he or she has little or no proficiency in a language other than French, because he or she claims the right to express himself or herself in the official language or because he or she has demanded the respect of a right arising from the Charter.
The Charter also specifies that the employer must take reasonable steps to prevent this type of conduct and, when such conduct comes to its attention, to put a stop to it.
A person who believes that he or she is a victim of such conduct by his or her employer may file a complaint with his or her union or with the CNESST within two (2) years of the occurrence of the conduct. The TAT or the grievance arbitrator will then have jurisdiction to hear the complaint, as the case may be.
We will remain available to assist employers in the application and implementation of these new provisions, which will have an impact on the requirements related to the use of French in the workplace, both in terms of communication in the workplace and in the process of personnel recruitment, particularly with respect to the requirements imposed by an employer regarding a language other than French, to name but a few aspects.
[1] However, we can anticipate constitutional debates on this issue which concerns the right of a province to regulate certain activities that may fall under federal jurisdiction.
[2] In certain circumstances, a contract qualifies as a contract of adhesion when its essential provisions have been imposed without being freely discussed. It is advisable to check on a case-by-case basis whether the contracts used qualify as such.
Article written by Camille Piché, lawyer, and Charlotte Côté, legal trainee
