Many Canadian employers offer jobs to students during the summer. While some might think that hiring these young candidates on a temporary basis makes it possible to meet the higher workload caused 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 this category of employees without a compelling justification.
In a recent decision, the Human Rights Tribunal of Quebec (the "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 (the "Charter"). As a result, according to the Tribunal, the fact that a clause in a collective agreement allocates a lower wage to these 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.
In this case, the United Steelworkers Union reported to the Quebec Human Rights and Youth Commission (the "Commission") that the wage conditions provided for in the collective agreement for students employed by the Aluminerie de Bécancour were discriminatory since they were below those applicable to other employees of the company 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.
The employer, on the other hand, maintained that the work that these students carry out differs from that of workers with regular or casual employee status according to the collective agreement. Alternatively, the employer requested that the Union be found jointly and severally liable on the ground that it accepted the introduction of a lower hourly rate for students during the 1994 negotiations and that it allowed this different treatment to endure in subsequent collective agreements.
The Tribunal's Decision
The Tribunal first 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 there to be discrimination, it must be shown that this difference is based on grounds for which discrimination is prohibited.
In light of the evidence presented before it, the Tribunal rejected the employer's argument and concluded that the students in this case were carrying out work that was essentially 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. The lower compensation paid to them also could not be justified by their lack of experience or seniority, as it was shown that, starting from the first day of work, a casual employee earned more than a student regardless of the student's length of service.
Finally, according to the Tribunal, 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 does the distinction stem from the social condition of the students with regard to their level of education, their occupation, their earnings and the perceptions and representations with regards to this objective data, but, in addition, the evidence revealed that the students were younger than the majority of the casual employees at the time of hiring.
Taking these facts into consideration, the Tribunal found that social condition was a factor in adopting the contested different hourly rate and that this difference had a disadvantageous effect on young people of 18 and 19 years of age. This difference also undermined the dignity of the students because it violated their right to equal pay for equal work under the Charter.
Regarding the Union's liability, the Tribunal noted that the context in which the negotiations took place must be taken into account to determine if the union properly fulfilled its mandate to represent the employees. In this respect, the Tribunal held that the employer had unilaterally introduced a reduction in the students' compensation compared to the regular and casual employees in the final offer that it made to the Union during the 1994 negotiations. The Tribunal concluded that the Union could not refuse the final offer that had been presented to it. The Tribunal also took note of the Union's resistance at the occasion of subsequent renewals of the collective agreement, even though it ultimately accepted the continuation of the salary difference in question.
This unprecedented decision will likely make Canadian employers reflect on the existence of wage differences between groups of employees and their justifications. In this respect, we point out that the discrimination allegation could have been dismissed if there had been a finding that the facts justified the existence of such a distinction, something that did not happen in this case.
By way of illustration, a difference in treatment or wage based on experience, seniority, length of service, merit review, amount of production or overtime worked is not discriminatory.
It should be noted that the employer is seeking leave to appeal for this 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.