Introduction

Many Canadian employers offer jobs to students during the summer. While some may think that hiring young candidates on a temporary basis enables them to meet the higher workload created by the summer holidays at a lower cost, recent case law has shown that employers should be careful not to establish different working conditions for such employees without compelling justification.

In Human rights and youth commission (Beaudry and others) v Aluminerie de Bécancour Inc (2018 QCTDP 12) the Quebec Human Rights Tribunal held that student status and the fact that students work during the summer to pay for their studies must be equated to a social condition protected under Section 10 of the Quebec Charter of Human Rights and Freedoms. According to the tribunal, a collective agreement clause that allocates a lower wage to students could constitute discriminatory treatment prohibited by the charter because it represents a distinction based on two prohibited grounds of discrimination: social condition and age.

Facts

The Steelworkers' Union reported to the Quebec Human Rights and Youth Commission that the wage conditions provided for in the collective agreement for students employed by Aluminerie de Bécancour were discriminatory, as they were below those applicable to other employees who performed the same work.

In support of its action before the tribunal, the commission held that the employer's practice was discriminatory because it was motivated by the age and social condition of the students.

However, the employer maintained that the work carried out by the students differed from that of workers with regular or casual employee status according to the collective agreement. The employer requested that the union be found jointly and severally liable on the grounds that:

  • it had accepted the introduction of a lower hourly rate for students during the 1994 negotiations; and
  • it had allowed this different treatment to endure in subsequent collective agreements.

Decision

The tribunal was careful to reiterate that the mere fact that the salary paid to one group of employees is less than that paid to another group of employees is not in itself discriminatory. For discrimination to exist, it must be shown that this difference is based on grounds for which discrimination is prohibited.

In light of the evidence, the tribunal rejected the employer's argument and concluded that the students were carrying out work that was equivalent to that of the casual and regular employees. Indeed, the training given was essentially the same, as were the tasks being performed and the risks to which the students were exposed. Further, the lower compensation paid to the students could not be justified by their lack of experience or seniority, as it was shown that, from the first day of work, a casual employee earned more than a student – regardless of the student's length of service.

Finally, the tribunal held that what distinguished the students from the casual and regular employees was the fact that they were full-time students outside of the employment periods provided for in the collective agreements. Not only did the distinction stem from the students' social condition – which comprised their level of education, occupation and earnings, and the perceptions and representations associated with this objective data – but also from the fact that the students were younger than most of the casual employees at the time of hiring.

Taking these facts into consideration, the tribunal concluded that social condition was a factor in the adoption of different wages and that this difference had a disadvantageous effect on people of 18 or 19 years of age. The difference also undermined the dignity of the students because it violated their right to equal pay for equal work under the Quebec Charter of Human Rights and Freedoms.

With regard to the union's liability, the tribunal noted that the context in which the negotiations took place must be taken into account when determining whether the union properly fulfilled its mandate to represent the employees. The tribunal held that in the final offer made to the union during the 1994 negotiations, the employer had unilaterally introduced a reduction in the students' compensation compared to that of the regular and casual employees, and that the union could not refuse the final offer that had been presented to it. The tribunal also noted the union's resistance upon subsequent renewals of the collective agreement, even though it ultimately accepted the continuation of the salary difference in question.

Comment

The unprecedented decision will likely force Canadian employers to reflect on the existence of wage differences between groups of employees and the justifications for this. The discrimination claim could have been dismissed if there had been a finding that the facts justified the existence of such a distinction. For example, a difference in treatment or wages is not discriminatory if it is based on:

  • experience;
  • seniority;
  • length of service;
  • merit review;
  • amount of production; or
  • overtime worked.

The employer is seeking leave to appeal the tribunal's decision to the Quebec Court of Appeal. The hearing on the question of whether leave to appeal should be granted will be held in October 2018.

For further information on this topic please contact Valérie Gareau-Dalpé at Fasken by telephone (+1 514 397 7400) or email (vgareau@fasken.com). The Fasken website can be accessed at www.fasken.com.

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