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Interpretation / jurisprudence

Interpretation: reference period, article 8.01

1. Payment of an advance for vacations

An employer does not have the right to calculate the holidays on another date than that of the end of the reference period. The latter must finish on April 30 or at the end of the civil year.

For example, an employer cannot calculate the earnings from May 1 to November 15, and pay vacation to an employee who wants one week of vacation to go to hunting.

However, as provided by article 8.11, the employer may, at the employee's request, allow an anticipated vacation and pay an amount identified as a vacation advance.

2. Variable reference period

Although article 8.01 sets the reference period as from May 1 to April 30, the administrative policy of the Parity Committee is to accept that the reference period finishes at the end of the pay period closest to April 30.

This practice makes it that it is even more important for the employer to respect regulation respecting the registration system and to clearly record the reference year in the pay records (see appendix 3, article 1-12) .

Interpretation: vacation pay, article 8.03

1. Total wages earned: "vacations on vacations"

The percentage of vacation pay (6% or 8%) is calculated on the total wages earned for the reference period (May 1 to April 30). What is included in the total wages earned?

It includes:

  • 1- wages for the hours worked
  • 2- statutory holidays
  • 3- paid hours of illness
  • 4- the surplus of the illness hours payable before December 10 (see article 12.02- 2)
  • 5- paid special leave (mourning, etc.)
  • 6- paid vacation (calculated as of April 30 of the previous period)
  • 7- and any other earnings including the employer's contribution to the Group Retirement Plan (RRSP)

The problem arises especially with the amount of vacations paid during the reference period. What one calls "vacations on vacations".

The decree speaks about the total wages earned. An Act respecting collective agreement decrees defines wages in article 1,i :

"wage" means the remuneration in currency, and the compensation or benefits of a pecuniary value as determined in the decree for the labour governed by it".

One cannot dispute that the payment of vacations is a remuneration or a benefit of a pecuniary value. Moreover the use of the expression "total wages" reinforces the idea that any remuneration must be included.

Jurisprudence :

"The COURT notes moreover that the definition of the word "wages" contained in the law is very broad, in that it provides the "compensations or benefits of a pecuniary value as determined in the decree". In this case, the allowance of holidays certainly constitutes compensations or advantages having a pecuniary value determined by the decree, more particularly with article 8.04 as for the determination of the compensations of vacations. The COURT is thus of the opinion that wages include any form of remuneration envisaged in the decree, and consequently include the vacation pay envisaged in article 8.04. The vacation pay thus constitute wages earned within the meaning of article 8.04 of the decree and the action of the plaintiff must be accommodated in this case".

Parity Committee vs. Entretien ménager Lyna Inc.
Court of Québec, Longueuil, May 12, 1995
Judge Micheline Laliberté.

Interpretation: payment of vacations, article 8.05

Vacations paid with each pay or vacations included in the wages

The employer cannot pay vacations with each pay. It is considered as a violation of article 8.05 of the Decree, which may be liable of a penal fine.

Article 8.05. The employer shall give the employee his vacation pay before the employee goes on vacation.

The Parity Committee may not take into account such vacation payments on each pay and may still claim the 6% or 8% vacation pay if such payments are not clearly identified as vacation payments on the payroll register and on the employee's pay slips.

The same applies to an employee, or a subcontractor considered as an employee, who would receive wages higher than that of the Decree under the pretext that all benefits, including the vacation pay, is included in the wages. In such cases, the Parity Committee can claim the 6% or 8% of the total earned wages.

Interpretation: vacation pay and end of employment, article 8.07

End of employment: vacations on vacations

To calculate the 6% or 8% final amount, in the case of an end of employment, it is necessary to determine in which of these two situations the employee is:

1- The vacation of the previous period was already paid. It then remains to pay the vacation calculated on the total earned wages of the current period which include the amount of vacation already paid for the previous period. There are thus vacations on vacations.

Example:
An employee leaves in September 2001. He had already received his vacation in July. To calculate his 6% (or 8% as the case may be) of departure, it is necessary to calculate the total of the earnings from May 1, 2001 until the date of his departure, including his vacation pay of July. This amount will be multiplied by 6 or 8%, as the case may be.

2- The vacation of the previous period was not paid. The employer must thus pay the vacation of the previous period and the vacation of the period in progress. In this case, there is no calculation of vacation on vacation.

Example:
Another employee also leaves in September 2001, but he had not taken his vacation yet. The employer must then take the total of the earnings of the year of reference ending on April 30, 2001 and add the earnings of the following period, until the date of his departure. The total amount will be multiplied by 6 or 8%, as the case may be

Interpretation: uninterrupted service, article 8.09

1. Layoff, less than 6 months

The employee laid off for less than 6 months, when he or she is called back, preserves his or her original date of hiring, permanence, if acquired, and the corresponding privileges: sick leave hours (see article 12), statutory holidays, vacation, etc.

That obviously does not apply to the employee who would have resigned and who would return to work less than 6 months later.

2. Other reasons for interruption of uninterrupted service

Article 8.09 enumerates the four situations where uninterrupted service is interrupted. The law did not envisage other reasons. Thus, in the case of a sick leave, of maternity or parental leave, in the event of CSST following a work-related accident, or even in the case of a leave without pay, uninterrupted service is maintained, whether the absence is of more than six months or not.

3. Transfer from maintenance work to other tasks for 6 months or more

The duration of uninterrupted service will not be interrupted if the employee is transferred to other functions than maintenance (or to the maintenance of the residential sector for example). In this case, the 6 month period envisaged in article 8.09 for the interruption of employment, does not count. Even after 6 months, the employee will retain his or her bank of hours of illness if he or she returns to maintenance work.

Jurisprudence:

"the court is of the opinion that it does not matter that the work of the employees during this six month period was carried out all or partly in the shirt industry, since they achieved six months of uninterrupted service with the same employer, they are entitled to the additional amounts foreseen in the decree."

Comité paritaire de l'industrie de la chemise vs. G.C. Knitting Inc.
Provincial Court, November 28, 1969
Judge Victor Chabot.