The criteria
During the past years, the courts have had the opportunity on several occasions, through the application of various laws, to examine the notions of employee, artisan, self-employed worker, subcontractor, dependent contractor, independent contractor. The result is an abundance of case law, sometimes contradictory, where it can become difficult to navigate.
Although the Parity Committee generally takes into account the criteria developed by this extensive case law, it should be noted that we apply the specific case law related to the interpretation of the notion of employee according to An act respecting collective agreement decrees. This is the reason why a worker could have the status of self-employed worker under a certain law, and still be considered as an employee under the decree.
The provisions of the Act are of public order. Consequently, the status of a worker does not depend on the verbal agreement or the written contract between him and a building service contractor, but on the facts and on the evaluation of these facts according to the criteria developed by the courts as to the interpretation of the definition of employee specified in article 1 (j) of the Act.
It is very important to note that the definition of “employee” according to article 1 (j) has been repeatedly recognized by the courts as being broader than the definitions specified in other laws.
This definition reads as follows:
“employee” means any apprentice, unskilled labourer or workman, skilled workman, journeyman, artisan, clerk or employee, working individually or in a crew or in partnership;
In our industry, the artisan is generally defined as:
- a person who works alone or in a team with members of his family, who has the following characteristics:
- his hourly or flat rate remuneration depends on the number of hours to be worked;
- he provides the products and equipment;
- he determines his schedules according to the nature of the maintenance work to be carried out;
- he establishes his working methods;
- he may be registered for GST and QST
- he takes some financial risk;
- his activities are limited to generating income for himself and members of his family
This is what is generally called a self-employed worker. This means that a self-employed worker hired by a building service contractor will generally be considered an employee within the meaning of the Act and the Decree.
According to the courts, the distinction between an employee within the meaning of the Decree and an independent contractor (actual subcontractor) is the ability to organize his business for the purpose of profit, that is to say the acceptance and remuneration of risk.
In order to establish which side a worker is on, the courts analyze his profile according to the facts, by applying several criteria.
