Interpretation: exclusions, the self-employed worker, article 2.03-2
Some precision on the self-employed worker
Not all self-employed workers are excluded but only those who correspond to all the conditions of article 2.03-2. Those who do not correspond to all the conditions are self-employed workers subject to the decree, in accordance with article 2.02.
If the self-employed worker “contracts directly” for a contract and signs on through an intermediary for another, he or she will be a self-employed worker excluded for the first contract and a self-employed worker subject to the decree for the second.
For the interpretation of “for his own benefit”, the two extracts of jurisprudence which follow indicate that if someone else derives a profit from the contract with the customer, it is not a question of “his own benefit”.
Jurisprudence 1 :
“Moreover, the examination of the amounts received by Diplomate compared to those received by Covarrubia shows a significant variation in favour of Diplomate who in the end, derives profits from this company, whereas the employee does not even receive the amounts envisaged by the decree…
It is about a law which aims at the protection of workers. To make it possible for an employer to use the means of sub-contracts or the transfer of contracts to bypass the provisions of this decree would be to make it inoperative. It is certainly not what the legislator intended by adding the exclusion of article 2.03. It is rather what he wanted to avoid by the addition of the words “and for his own benefit”.
The Court thus concludes that the employee (i.e. the self-employed worker) Fernando Covarrubia does not carry out this maintenance work of public buildings for his own benefit and in consequence, the defendants cannot profit from the exclusion of article 2.03.”
Parity Committee vs Services d’entretien Diplomate Inc and
Polpaico Maintenance Enr.
Court of Québec, Civil Room, December 21, 1993
Judge Jacques Lachapelle
Jurisprudence 2 :
“While trying to detach these people of any bond of preposition toward them, the plaintiffs wanted to benefit from the exclusion envisaged in paragraph b) of article 2.03 of the decree which withdraws from its field of application, the “… self-employed worker who carries out himself or with the members of his family, and for his own benefit, maintenance work in public buildings”.
However, the will of the appellants to withdraw from the application of the decree cannot contradict the reality which clearly shows through the contract: the pseudo self-employed worker carry out, under the authority of the appellants, work included under the decree…
In the achievement of their work, they profit from a quite weak autonomy. Indeed, these people carry out their work by regular and successive duties, five days per week, between 17:00 hours and 2:00 hours and this, with the equipment provided by the appellants. They receive, for their work, weekly wages whose amount is invariable. They do not assume any risk inherent to the company and cannot, by their output and their administration, increase their chances of profit or make their schedule flexible. Finally, the appellants control the completion of the work by transmitting their instructions and by conveying the complaints made by the customers. Thus, one can say that these people achieve their work “to the advantage” of the appellants who constitute, in the particular circumstances of this business, professional employers”.
Groupe d’entretien Salibec Inc vs. Procureur général du Quebec
Québec Court of Appeal , November 22, 1993
Judges Beauregard, Deliset and Otis
Interpretation: exclusions, employees of the government, article 2.03-3
Exclusion applies only to those individuals who work for, and are paid directly by the government or the municipality.
Thus, the employees of Canada Post, of the Municipal Housing Office or the Recreation Corporation of a city are not direct government-paid employees and are thus subject to the decree.
“Although the office under the terms of the Law, is the agent of the municipality, it does not however, control it. Not meeting the requirements of the “control test”, the office cannot be considered, in fact, an agent of the municipality, cannot prevail itself of the advantages of an agent of a municipal corporation and cannot withdraw itself from the application of the decree on the maintenance of public buildings.”
Parity Committee vs. Municipal Housing Office of Lachine
Lachine Municipal Court, September 15, 1987
Judge Raymond Pagé
Interpretation: exclusions, article 2.03
There are other exclusions than those envisaged in article 2.03 of the decree. For example, article 29 of An Act respecting collective agreement decrees lays down certain exclusions. (see the section “An Act respecting collective agreement decrees” for the complete text of article 29)
1. Article 29, paragraph d): Training course of a student
To be excluded the student must be:
- in a period
- of training
- without pay
- under the responsibility of a school board or an educational institution.
Let us review the 4 conditions:
1- In a period: according to the dictionary, a training period is a “period during which a person carries on a temporary activity in a company for his or her training”.
The concept of “temporary” refers to the time necessary to learn the work.
Maintenance work being a non-specialised trade, the time of training must be restricted: one speaks of weeks, to a maximum of 2 months.
The cases of students placed in training programs for 6 months and even a year are unacceptable and exclusion not having effect, the decree applies.
2- Of training: this implies that the trainee is under the supervision of a trainer in maintenance work, while continuing to be under the responsibility of his or her teacher. The trainee must thus be supervised by an experienced maintenance worker who shows him or her the trade. Moreover, he or she must be followed by the teaching institution which ensures the good functioning of the training course. That implies a noted follow-up, evaluations, etc.
A student placed in a building where he or she would be alone to do the maintenance work without supervision could not be considered to be in a training course.
3- Without pay: the student does not receive any wages.
4- A trainee placed by an organisation other than a school board or an educational institution is not comprised in the exclusion.
2. Article 29, paragraph e): Non-remunerated readaptation training course
The 4 conditions examined in note 1 apply here also:
- the training course remains temporary. However in these cases the time could be longer.
- It must be a question of readaptation. There is thus no question of leaving the employee alone.
- There should be no remuneration.
- The placement must be made by a readaptation centre or a government organism.
In the case where the handicapped person is not specified by the exclusion, he or she must receive the rate of the decree, whatever his or her productivity.
Since Law 9 of June 23, 1978, it is forbidden to calculate the percentage of productivity and to adjust wages consequently. To compensate for the non productivity of the employee, the employer can receive subsidies from the Office des personnes handicapées du Québec or any other organisation.
3. Other exclusions: compensatory work, Code of penal procedure
Article 340 of the Code of penal procedure stipulates that An Act respecting collective agreement decrees does not apply to the compensatory work ordered following a judgement.
Thus the person condemned to wash the floor of a charitable organisation 2 times per week for 6 months, rather than to a period of imprisonment or the payment of a fine, is not governed by the decree.
One finds a similar provision in An Act respecting correctional services in what relates to the execution of community work or the work done by prisoners.