This article was originally authored and published by DENTONS.
On May 24, 2022, the National Assembly of Québec adopted Bill 96 - An Act respecting French, the official and common language of Québec (the “Act”). It is expected that the bill will be assented to in the next few days, which is the last step for a bill to become a law.
This insight deals with the main changes that the Act makes to the Charter of the French Language and that are relevant for employers.
When employers will now publish a job posting in a language other than French, they will need to ensure that it is simultaneously published in French, using the same means of transmission and reaching a target audience of comparable size, all proportions kept. Similarly, any offer of employment, transfer or promotion will now need to be published in French.
The Act specifies that before requiring knowledge of a language other than French when hiring, employers will need to demonstrate that they: (i) have assessed the actual language needs associated with the tasks to be performed; (ii) have ensured that the language skills already required of other members of staff are insufficient for the performance of these tasks; and (iii) have restricted as much as possible the number of positions to which are attached tasks whose accomplishment requires the knowledge of a language other than French. Following an amendment adopted in a parliamentary committee, the Act specifies, however, that the obligation described above must not be interpreted so as to impose an unreasonable reorganization on a corporation.
In addition, employers who will require knowledge or a specific level of knowledge of a language other than French to access a position must, when they post an offer to fill this position, indicate the reasons justifying this requirement.
Employers will now have to ensure that any individual employment contract they enter into in writing is written in French. Thus, individual employment contracts which are adhesion contracts (e.g. a contract whose essential clauses have been imposed or drafted by the employer, without the employee having had a real opportunity to negotiate them) drafted in a language other than French will only bind the parties if they confirm their express wish that the contract be drafted in this language, after the contract drafted in French has first been presented to them and that they have had the opportunity to review it. On the other hand, when an employee has a real opportunity to negotiate the terms of his employment contract, the stipulation of the express will of the parties to have the contract in a language other than French will continue to be sufficient.
The Act provides that written communications, including those following the termination of the employment relationship, that an employer sends to its whole staff or a part of it, to a particular worker or to an association of workers representing its employees will need to be in French. However, an employer may communicate in writing in a language other than French with a worker who will request it. In addition, employers will have to ensure that application forms, documents related to working conditions and training documents produced for staff are written in French and that, if they make them available in another language, the French version is available under at least as favourable conditions.
The Act provides that a French version will now need to be attached without delay to any arbitration award rendered in writing in English following the arbitration of a grievance, a disagreement, or a dispute, either relating to the negotiation, renewal or revision of a collective labour agreement or group agreement, or resulting from the interpretation or application of such collective labour agreement or group agreement. The translation of the arbitration award will have to be certified and the costs of translation have to be borne by the parties.
Similarly, a French version will need to be attached forthwith to any judgment rendered in writing in English by a court terminating a proceeding or of interest to the public. However, the costs of translation will not be borne by the parties.
The provisions referred to in this paragraph will come into force two years after the day on which the Act receives royal assent.
The Act extends the francization process, according to which a company must demonstrate that the use of French is generalized throughout the workplace, to companies with between 25 and 49 employees. Thus, similarly to businesses with 50 or more employees, they will now have to register and obtain a francization certificate from the Office québécois de la langue française (the “OQLF”). In the absence of a francization certificate due to the non-generalization of the use of French at all levels of the company, the OQLF will order a company to develop and implement a francization program that must be sent to the OQLF within three (3) months of receiving the OQLF’s notice to that effect. The company is then required to (i) ensure that the use of French remains widespread at all levels and (ii) submit a report to the OQLF every three (3) years. If, after reviewing such a report, the OQLF believes that the use is no longer generalized at all levels of the company, it will order the company to establish and implement an action plan to remedy the situation after giving it the opportunity to present observations. An employer will then have two months to submit its action plan for approval to the OQLF.
These same companies will be required to establish a francization committee only if the OQLF orders them to establish such a committee after examining the analysis of their linguistic situation.
The application of these rules to businesses with between 25 and 49 employees will not come into force until 3 years after the Act receives royal assent, which is in 2025.
The Act broadens the powers of the OQLF in the context of inspections and investigations it conducts.
If the Act is contravened, the OQLF has the power to order the person who committed the violation to comply with it or to cease contravening it. In such circumstances, the OQLF shall specify a timeframe within which the person who committed the violation must act.
Finally, the Act grants the OQLF the power to apply to a judge of the Superior Court for an injunction concerning the application of the Act.
The Act introduces new civil sanctions for violations of the Act. From now on, the provisions of a contract, decision or other act causing damage by their contravention of the Act may be annulled on the application of the person suffering such damage. That said, instead of seeking the annulment of a contract, a party to the contract may choose to maintain it and request a reduction in its obligation equivalent to the damages it is justified in claiming.
In addition, the Act gives the court broad discretion to make any order it considers appropriate.
In the event of a repeated contravention of the provisions of the Act, an enterprise may be subject to the suspension or revocation of a permit or of other authorizations held by it, despite any order that may have been made by the OQLF and any penal proceedings instituted against it by reason of such contraventions.
The Act increases the fines that can be imposed for violations of the Act. From now on, a natural person who contravenes the Act is liable to a fine of $700 to $7,000, while a legal person is liable to a fine of $3,000 to $30,000. The minimum and maximum amounts are doubled for a first offence and tripled for any additional offence.
Furthermore, it is important to emphasize that the Act provides that directors will be presumed liable in the event of an offence committed by a legal person, an agent, a mandatary or an employee thereof, hence the importance for directors to exercise due diligence and take all necessary precautions to prevent its perpetration. A director or officer who contravenes the Act is liable to a fine of $1,400 to $14,000 for a first offence. These amounts are doubled for a second offence and tripled for any subsequent offence.
The Act provides that where an offence continues for more than one day, it constitutes a separate offence for each day it continues, hence the importance of acting quickly to comply with the Act in the event of an offence.
Although no provision of the Act expressly provides for it, the Government of Québec has confirmed that it will require businesses under federal jurisdiction (e.g. banks, telecommunications and interprovincial transportation companies, etc.) to comply, with respect to their operations on the territory of Québec, to the provisions of the Charter of the French Language, as amended by the Act.
The provisions referred to in this insight will come into force on the date of assent of the Act, except those for which another time limit is specifically identified.
The Act includes several amendments with respect to French as the language of work and imposes new obligations on employers, with the objective of strengthening the right of Québec workers to carry out their activities in French. Many employers doing business in Québec will therefore have to review their language practices to ensure that they comply with these new requirements.
If you wish to discuss the impact the Act could have on your business or any questions regarding your rights and obligations, please contact a member of the Employment and Labour group of the Montréal office.