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Interpretation / jurisprudence

Interpretation: public building, article 1.01 a)

1. Accessible to the public

The term "public" should not be given the usual dictionary definition, i.e. "which is accessible to the public".

Jurisprudence 1 :
"That the maintenance work is done in an office building for its exclusive use, does not change the fact that this kind of building is envisaged in the definition of the words "public buildings" contained in the decree

The Court is of the opinion that the public character of a building does not only come from the only fact of the opening of this building to all the public, but rather from the definition which the Legislator in the decree wanted to give to it. When such a definition exists in a law, it takes precedence over all the dictionaries or the usual current meanings of these terms...

It is obvious that the factories, the workshops, the manufacturing plants are not places where the public has access freely and the Legislator has included these places in his definition of public buildings.

The Court thus comes to the conclusion that the office building of the defendant is a public building within the meaning of the decree concerned".

Parity Committee vs. Dominion Textiles Inc
Court of Sessions of the Peace, December 8, 1983
Judge Cyrille Morand
Confirmed by the Superior Court, June 7,1984
Judge Jacques Vaillancourt

Jurisprudence 2 :
"A "private club" which offers the services of a dining room, of a restaurant, a bar, a meeting room and a library, is a public building. And the fact that to use the services of this building it is necessary to be member of the defendant's party, or to be invited by a member, in no way changes the public character of this building".

Parity Committee vs. The University Club of Montreal
Court of Sessions of the Peace, October 12, 1984
Judge Cyrille Morand
Confirmed by the Québec Court of Appeal, January 23, 1991
Judges Lebel, Beaudoin, Brossard

2 . Trailers or other non-permanent buildings

It is not required that a building be of a permanent type to be a public building. As proof, expositions, fairs and stages are part of the enumeration of article 1.01a). Trailers on a construction site containing offices, meeting rooms, are thus also public buildings.

Jurisprudence :

Parity Committee vs. Conciergerie Michel Jobin Inc.
Court of Québec, December 4, 1992
Judge Bernard Lemieux

3. Condominiums

The expression "a house with several apartments or residences" includes a building called "condominium".

Jurisprudence :
"The definition does not refer at all to the quality of the occupants, whether they are owners or tenants. One should consider only the building itself".

Parity Committee vs. Sol Chadnick and Als.
Provincial Court, May 3, 1988
Judge Pierre Verdy

4. Rooms of a centre for retired persons, a college, etc.

One can find rooms in a college, a hospital, a convalescent home, a home for retired persons, a vacation camp, a convent, a monastery, a retirement home, a hotel, a motel, an inn.

It is initially necessary to take into account the exclusion concerning the "maintenance work carried out in the rooms of a hotel or a motel" (article 2.03, 1o).

As for all the other rooms, they are included in the definition of a public building, and the maintenance work done in the rooms is subject to the decree and that, even if the room is a private place (which may even be locked) within the dictionary meaning.

Interpretation: maintenance work, article 1.01 c)

1. To collect papers or other waste for recycling

The fact of collecting paper in containers identified for recycling is envisaged within article 1.01d): "removing waste and the contents of recycling bins larger than 66cm x 91cm ", and is also comparable" to the cleaning of waste paper baskets" described within class B (article 1.01e) and thus subject to the decree. What one does with paper after its collection has no effect on its being subject to the decree.

On the other hand, the activity of the shredding of the paper is not subject to the decree.

This principle of paper collection being subject to the decree, even if it is intended for recycling, applies to any other waste.

Jurisprudence :

"Moreover, the task which was assigned to him, and which consisted in recovering the fabric cuttings, either by sweeping them, or by collecting them by hand, then placing them in plastic containers intended for recycling, "constitutes other similar work carried out inside this public building". The proof clearly established that without this clearing operation, the production of the factory could have been seriously compromised.

The fact that these cuttings cannot be regarded as true refuse, since one could put them in the category of noble waste, since they are recyclable, could not constitute an acceptable defence ".

Party Committee vs. Les Modes Internationales Contempra Ltée
Provincial court, January 19, 1988
Judge Bernard Tellier

2. External maintenance

The word "outside" covers the space around the building. Thus the sweeping of the pavement of the entrance and of the pavement around the building, the collecting of papers in the grass and the cleaning of the refuse container are subject to the decree. The same applies to the collecting of papers in the parking lot.

3. Cleaning after fire (or disaster)

The maintenance work after fire or disaster is subject to the decree.

Jurisprudence 1 :

"It is thus the very nature of the work which should determine if the respondant is subject to the decree, and not with the source, occasion or cause of the work.

The Court is of the opinion that the legislator intended that the decree applies to maintenance work, and not to the frequency or the methods according to which it was accomplished;"

Parity Committee vs. Nettoyeur professionnel Inc.
Superior Court, October 22, 1976
Judge Gilles St-Hilaire

Jurisprudence 2 :

"Thus, continues the appellant, I do not do the maintenance of the buildings, but I restore them, I return them to good condition when they were damaged by water or fire following a disaster. To maintain in good condition, and to return to good condition are two different things."

"Unfortunately for the appellant, the correct language and the language of the decree are also two different things. In the interpretation of a decree, it is necessary to prefer the definition of the decree to that of the best dictionaries."
(L.P. Pigeon, Rédaction et interprétation des lois, p. 20).

"Consequently, according to the vocabulary of the quoted decree, maintenance work includes not only work referring to cleaning maintenance, but also any other work referring to cleaning, including that done with an aim of restoration or repairing."

Nettoyeur professionnel Inc. vs. Parity Committee
Court of Appeal, October 6, 1977
Judges Rinfret, Turgeon, Mayrand

Jurisprudence 3 :

"There is nothing, either in the Law nor in the decree which can allow the defendant to be exempted of their application according to the three types of activities the defendant put forward as proof, that is to say 75% in cleaning after a disaster,..."

Parity Committee vs. Steamatic Metropolitan Inc.
Court of Québec
March 29, 1995.

In practice, the work of washing and cleaning of floors (carpets), interior and external walls, ceilings, windows as well as all the pieces of furniture (desks, files, chairs, computers, all types of machines, etc). is thus covered.

4. Secondary tasks

Maintenance work done in an accessory, sporadic and accidental way is not subject to the decree.

Jurisprudence 1 :

"During a normal 8-hour day, Comeau and Fournier, as "tray boys", carried out the work of their task; during this time, they took a little more than twenty non-consecutive minutes, for sometimes removing finger marks or others on mirrors placed close to the tables or liquids spilled on the floor by customers and transporting waste over a distance of a few feet towards one of the restaurants.

If it is that these last operations can be considered as maintenance work, the Court does not believe however that the action of the plaintiff must be accommodated for this reason.

Indeed, the Decree respecting buildings service employees aims at the work whose nature and essence are the maintenance of public buildings and is carried out by employees during weeks, days or hours.

This decree does not relate to the work of another nature, even if secondarily and sporadically, it comprises operations resembling maintenance and which are carried out secondarily and accidentally during several spaces of time, each of a duration of a few minutes, which, added together, do not even form half an hour and are lost in one whole day of completely different work."

Parity Committee vs. Sogemail Inc.
Provincial court, June 23, 1983
Judge Pierre Choquette

The words "sporadic" and "accidental" are significant since it would be a different matter if in the case quoted, the two employees had to wash the floor every evening during two hours. These two hours out of eight would have constituted only 25% of the task but would have had a character of permanence rather than of accessory, sporadic and accidental character. These two hours would be subject to the decree.

Jurisprudence 2 :

"In practice, an employer could be subject to several decrees; it could even be subject to a decree with regard to a marginal, even exceptional part of its activities."

Comité paritaire de la chemise c. Jonathan Potash (Sélection Milton)
Cour Suprême du Canada, 27 janvier 1994
M. le juge Laforest

5. Rounds of toilet paper and soap

The rounds of toilet paper and soap, whether they are accompanied or not by light maintenance work of the washrooms are regarded as maintenance work.

6. Obligations and work classification for maintenance work performed in food courts located in shopping centres and office buildings

Listed below, is a list of tasks carried out by employees working in food courts:

  • Discarding garbage on tables
  • Returning trays to counters
  • Wiping off stains from furniture (tables, chairs, stools, benches, etc...), due to spilled drinks or food
  • Mopping floors
  • Emptying and cleaning garbage containers

The above-mentioned tasks are performed and carried out as part of a daily working routine.  As such, we may apply a commonly-known concept in jurisprudence which states that based on the execution, the nature and the type of work, one can use the Decree as a binding reference.

By definition, tasks, performed by employees working in food courts, do come under article 1.01c of the Decree.  As a result, the hourly rate for some of these tasks will be that of Class A and that of Class B for others.

All employees performing maintenance work in food courts in shopping centres and in office buildings must be listed on the employer's monthly reports and must be granted the same working conditions as those stated in the Decree.

7. Maintenance work in factories (Example: meat transformation plant)

The evolution of jurisprudence confirms that the definition of maintenance work must not be given a restrictive interpretation.

The law provides that the cleaning tasks performed inside or outside a public building fall under the Decree's jurisdiction. A jurisprudence established in December 2009 confirms that the definition of these tasks can not be restricted to domestic maintenance or to office cleaning.

This jurisprudence states that, even if class A and class B work are defined by article 1.01 of the Decree, the description provided by the Decree is not exhaustive. In fact, this decision confirms that some tasks considered by the employer as sanitation or specialized tasks are to be considered as maintenance work of class A and class B.

Thus, the following tasks, performed in a meat transformation plant, are confirmed as maintenance work according to the Decree:

  • High pressure or high temperature rinsing of surfaces, equipments and machinery;
  • Washing of all surfaces and walls;
  • Wiping and drying of ceilings' condensation;
  • Applying sanitizing products.

Reference:
Comité paritaire de l'entretien d'édifices de la région de Québec vs. Drake International inc., Court of Appeal, December 7th, 2009

Interpretation: working day, article 1.01 g)

Definition of a normally worked day

The incidence of this definition is in articles 7.02, 7.04 and 7.05, which deals with statutory holidays by making the distinction between a day which coincides or which does not coincide with a working day.

The working day is related to the employee and can vary from one employee to another.

In the case where the employee has a regular schedule:
For the employee who normally works from Monday to Friday, these days will be working days, and Saturdays and Sundays will not be.

For the employee who normally works Mondays, Wednesdays and Fridays, these days will be working days, and the other days will not be.

In the case of a regular schedule, it is not necessary to examine the former weeks of the employee. If, for example, Friday belonged to the new schedule of the employee, Friday will be a working day as of the first Friday.

If the employee has an irregular schedule:
The problem occurs when an employee does not have a regular schedule. It is the case of supernumeraries, substitutes, employees on call, etc.

How is Monday considered if the employee worked certain Mondays, and did not work others?

The Court accepted that Monday (for example) is a working day for an employee if he or she worked 5 Mondays over the last 8 Mondays.

Jurisprudence :

Parity Committee of the security guards vs. Pinkerton du Québec ltée.
Court of Québec, Trois-Rivières, September 17, 1993
Judge J.M. Châteauneuf

Interpretation: professional employer, article 1.01 h)

Employment agency

The employment agency which places an employee with a contractor, a building owner or a tenant, which pays the employee and which can terminate his or her employment, is the professional employer. It must then respect the decree and produce the monthly reports. In this case, the employer is not the one where the employee works and who gives him orders.

Jurisprudence :

"Here, it is a question of determining who must pay the minimum wage provided with the decree, and the Court is of the opinion that it is the employer of the employee. That is, at the very least, that which engaged him or her, pays the salary and can terminate the employment. In spite of the fact that the employee becomes temporarily, under the control, in fact, of another employer, for a given work..."

Service sanitaire Luc Inc. vs. Comité paritaire des boueurs de la région de Montréal,
Superior Court, May 8, 1990
Judge Jean Jules Chabot

Also,

Parity Committee vs. Commercaide Ltée
Provincial Court, Montreal, April 14, 1981
Judge Jacques Weaver

and

Comité paritaire de l'automobile de Montréal vs. Accès Chevrolet Oldsmobile Inc.
Court of Québec, Montreal, June 26, 1996
Judge Robert B Giroux (96T-960)

Interpretation: uninterrupted service, article 1.01 j)

1. Date of hire when there are tasks of maintenance and other tasks

For the ends of application of the decree, how do we determine the date of hire of an employee who, in the same company, is assigned exclusively to maintenance for certain periods, whereas at other times, accomplishes other functions?

Examples of these cases are:

  • 1- an employee assigned during 2 years to security, then transferred to maintenance.
  • 2- an employee of an employment agency who sometimes does maintenance work, sometimes does something else.

In this type of situation, there is only one date of hire, that is to say the first working day in the company, whatever the function. The occupation of the employee does not matter, his uninterrupted service accumulates.

Thus, article 7.01 provides that the employee will profit from 3 days of vacation at Christmas and 3 days of vacation at New Year's Day, if he or she has one year of uninterrupted service in the company, in maintenance or elsewhere.

Article 8.04 provides that the employee will be entitled to 8% of vacation pay if he or she has 10 years of uninterrupted service, even if it is only 3 months in maintenance work.

In the same way, the duration of the uninterrupted service will not be stopped if the employee is transferred to other functions than maintenance (or to maintenance in the residential sector for example).

Jurisprudence :

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

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

2. Transfer of an employee of a sister company to another

1st case: An employee is transferred to a sister company whereas he remains in the same place of work, without interruption. The former employer must then transfer the date of hire and all the benefits of the employee to the new employer.

2nd case: The employee is transferred, even without interruption, to a different place of work, which belongs to the sister company. There is then no transfer of the uninterrupted service, unless the Parity Committee can prove bad faith. For example, it could be a question of a stratagem to avoid paying the excess sick leave hours envisaged in article 12.02. The first employer must however give a notice of termination.