The powers of the Parity Committee

1. Can the inspector require from the employer to provide bank statements and returned checks?

The purpose of the Act respecting Collective Agreement Decrees is to provide decent working conditions in certain work areas where the employees are more vulnerable.

The documents required during an inspection, as provided by article 22 of the Act respecting Collective Agreement Decrees, have a commercial character. The possibility of having access to some more personal elements is not relevant considering the reasonable nature of the powers allowed to the Parity Committee by the Law.

The requirement to provide the bank statements and returned checks to the inspector is in accordance with the function of the Parity Committee of verifying the respect and application of the Law.

The spirit of the Law is to give the inspectors the powers required to achieve their tasks. The Interpretation Act (R.S.Q., chapter I-16) states that:

Article 41. “Such statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit.”

Moreover, in a recent decision, Judge Johanne White, of the Quebec Court, had to answer these two questions:

1. Is the employer required to provide to the inspector the returned checks for the last three months?

2. Does the administrative nature of the inspection, as well as the fact that the employer was not suspected of acting contrary to the law, justifies the employer’s refusal to provide the checks requested by the inspector?

To these questions, the judge answered clearly that it does not belong to the employers to decide which documents are needed for an inspection. Moreover, the lack of reasons to suspect any infringement to the law does not justifies the employer’s refusal to provide the documents needed by the inspector within the framework of his inspection.

Jurisprudence:

Comité paritaire vs. Can-Jan inc.

Cour du Québec, June 23, 2004, Mme la juge Louise Villemure

Comité paritaire vs. Groupe Laberge inc.

Cour du Québec, April 23, 2004, M. le juge Louis Rémillard

Comité paritaire vs. Les services d’entretien Bo-Lav inc.

Cour du Québec, September 24, 2010, Mme la juge Johanne White

2. Can one call upon the Charter of Human Rights and Freedoms to refuse access to the inspector to the documents necessary for the inspection?

The employer cannot call upon the Charter of Human Rights and Freedoms to refuse an inspection. In the judgment “Comité paritaire de l’industrie de la chemise vs. Potash” (1994), the Supreme Court of Canada answered the two following questions:

1. Are the provisions of paragraph e) of article 22 of the An Act Respecting Collective Agreement Decrees which grants powers of inspection, incompatible with article 8 of the Charter of Human Rights and Freedoms?

2. On the assumption that the Court would answer the first question by the affirmative, can these provisions be justified within the framework of the first article of the Charter of Human Rights and Freedoms?

The Court concluded that the powers of inspection envisaged within the Law do not violate the charter.

In this decision, the Court compares all the powers of inspection to seizures or searches within the meaning of the Charter. However, the appreciation of the abusive character of these powers can vary according to whether it is about the criminal or statutory field.

Compared to the collective agreement decrees, the Court estimates that the powers of inspection are sufficiently circumscribed by the Law and that they are not abusive.

Consequently, the Court did not have to fall back on article 1 of the Charter of Human Rights and Freedoms to evaluate if it were a reasonable limit whose justification can be shown within the framework of a free and democratic society.

3. Can one refuse or restrict access to the places of work of the employees?

The professional employer, the employer or the customer cannot limit the inspectors to certain places such as the cafeteria, the rest room, the lobby or others.

The inspector has the right to go to see the employees where they work.

Jurisprudence:

“the appellant employer was found guilty of having refused access to the workshops where the employees work to the inspector of the Comité paritaire du bois œuvré. He only enabled him to meet them in the employee’s cafeteria.

It is justifiably that the first judge concluded that the inspector has a right of general access to the places of work, allowing him even to observe, if he wishes it, an employee working with his machine.

The inspector cannot check the nature of the work and the product manufactured to determine the subjectivity of the employer to the decree if he is confined to the cafeteria of the company to question the employees.

The “places of work” indicate all of the company, including the workshops. Moreover, the English version of article 33 uses the words “the place where the work is being done”, which confirms the interpretation that the Court gives to the French version”.

Cuisirama Inc,vs. Comité paritaire du bois œuvré du Québec.
Superior Court, Joliette, 4 juillet1991

Judge Yves Mayrand, D.T.E. 911 T 835

4. Can one call upon An Act Respecting the Protection of Personal Information in the Private Sector to refuse to communicate information required by the Parity Committee?

An employer cannot call An Act Respecting the Protection of Personal Information in the Private Sector to refuse to give to the Parity Committee the information requested concerning the names and co-ordinates of the contractor, its subcontractors or its employees, as well as any information envisaged with the An Act Respecting Collective Agreement Decrees or with the decree.

Article 18 of “An Act Respecting the Protection of Personal Information in the Private Sector”, deals with the communication of information to third parties.

Article 18. “A person carrying on an enterprise may, without the consent of the person concerned, communicate personal information contained in a file he holds on that person.”

1- to his attorney;

2- to the Attorney General if the information is required for the purposes of the prosecution of an offence under an Act of applicable in Québec;

3- to a person responsible, by law, for the prevention, detection or repression of crime or statutory offences who requires it in the performance of his duties, if the information is needed for the prosecution of an offence under an Act applicable in Québec;

4- to a person to whom it is necessary to communicate the information under the law or a collective agreement, who requires it in the performance of his duties.