What Defence and Security Industry Employers with Québec-based Employees Need to Know About their New Language Requirements
One does not have to look too far into the news to see the reputational and financial harm caused from an employer running afoul Québec’s French language laws. With many defence and security companies carrying on activities in Québec, this special issue of the Defensive Line will focus on the employer’s, sometimes daunting, responsibilities under Québec’s newly amended Charter of the French Language (the “Charter”).
In June of 2022, Québec’s National Assembly passed Bill 96, An Act respecting French, the official and common language of Québec (“Bill 96”), which significantly amended the Charter. The stated purpose of Bill 96 is to “affirm that the only official language of Québec is French”. The Bill aims to accomplish this by imposing new French language requirements on government services, businesses, and the workplace. From a workplace perspective, the new Act can be divided into two components: (1) the usage of French in the Workplace and (2) the application of a French Program.
1. The Use of French Language in the Workplace:
The first major update to the Charter is that Bill 96 now requires employment documentation, job postings, and official written communication with employees to be conducted in French. The amendments also include an ancillary anti-discrimination protection for employees who do not know another language other than French.
A. Official Documentation Must Be Provided in French
The Charter states that every employer must respect a worker’s right to carry on their activities in French.[1] This means that employers must provide official written communication and certain employment documentation in French, including: any offer of employment, transfer or promotion documents[2], any written individual employment contracts[3], and any written communications to all or part of their staff, and more.[4] There is an exception that allows employers to communicate with a worker in another language if the latter makes such a request.[5]
An employer’s Charter obligations does not end there. Employers must further ensure that if any application forms[6], documents relating to conditions of employment [7], or training manuals[8] are available in English (or another language), they must ensure that the French version is available on terms that are at least as favourable.
Perhaps the most significant amendment for employers is the impact on employment contracts. Under the Charter, employers are required to first provide employment contracts in French.[9] This requirement can be especially demanding for any business who largely conducts their operations in English, and for employees who have a limited comprehension of the French language.
The Charter does provide for a narrow alternative. In employment contracts of adhesion, where the terms are largely imposed and non-negotiable, once a French copy of the contract is presented to the employee, then the employee can request to have the documentation provided in another language.[10] In employment contracts that are not of adhesion, namely contracts where the terms are largely negotiable, then the contract can be drafted in a language other than French if both parties agree.[11]
These obligations can cause unforeseen delays in the beginning the employment relationship. A first delay could result from presenting a French copy of the agreement first and waiting for prospective employees to request the documentation in a language they understand. If an employer is not prepared for such a request, there could be additional delays in re-drafting the contract in another language. As a best practice, employers should have a French copy available first and should ensure they have both a French and English template available to reduce any delays in having the perspective employee sign the contract.
One example, which is relevant to defence employers with remote employees in Eastern Ontario, the Maritimes, or Newfoundland and Labrador, is that it may be possible for Québec law to take jurisdiction where the remote employee is living in that province, even if their work is related to an undertaking in the non-Québec province. Specifically, Bill 96 applies to employers who carry on activities in Québec. As such, where an employee carries on some activities in the province of Québec and is living in Québec, the employer is subject to Québec’s jurisdiction. This is an unsettled area of law; however, this did occur in, for example,Boisvert et Marnier-Lapostolle Chile Spa, 2018 QCTAT 4718If this were to happen in your own operations, then the Charter may also impact the employment relationship with these employees as well.[12] A best practice is to keep proper documentation of any requests for employment contracts or written communications to be in a language other than French. The simplest way to protect the organization from any future compliance disputes is to have relevant employees complete a simple language designation form and place said form in their employment file.
The Charter does not require contracts entered into before June 1, 2022, to be translated into French. However, all new employment contracts entered into after June 1, 2022, must be drafted and presented first in French.
B. Recruitment
The Charter mandates that job postings and applications in Québec be made available in French and advertised simultaneously with any non-French job posting.[13] This means that any time your organization is looking to fill an open position through recruitment, transfer or promotion, the job posting must: (1) be available simultaneously in French and English (2) be available with the same medium (Indeed, Workopolis, LinkedIn etc.); and (3) target an audience of a proportionally comparable size.
In addition, if the posted position requires knowledge of a language other than French, the job posting must explain why the position has such a requirement.[14] The Charter is also clear that Employers are meant to take all reasonable steps to avoid such a requirement.[15] To satisfy this obligation, the organization will need to (1) assess the actual language needs associated with the position’s duties;[16] (2) ensure the language knowledge already required from other staff is insufficient for the performance of those duties[17]; or (3) restrict as much as possible the number of positions whose duties requires knowledge of a language other than French.[18] However, businesses do not have to go as far as unreasonably reorganizing their business to meet this requirement.[19] Evidently, whether management has met these obligations will be a fact driven exercise. A best practice would be to ensure proper documentation of any steps taken to ensure the organization’s proper compliance.
C. Discrimination and Harassment
The Charter also outlines that employees have the right to be free from discrimination and harassment because they do not know a language other than French.[20] This requirement imposes the additional obligation on employers to take reasonable measures to prevent and protect employees from discrimination and harassment based on their use of French in the workplace.[21] While this right existed by virtue of human rights legislation, Bill 96 provides additional statutory protection for employees. Under the Charter, employers have the additional obligation to take all reasonable steps to protect employees from French language-based discrimination or harassment in the workplace.
D. Reprisals and Dispute Resolution Process
Employers are prohibited from reprising against, or imposing other penalties, for an employee who seeks to enforce their rights under the Charter.[22] The Charter prohibits employers from dismissing, laying off, demoting or transferring an employee solely because the employee is French speaking and lacks the knowledge of another language.[23] If an employee feels that their rights have been violated under the Charter, the employee can file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”) within 45 days of the alleged misconduct.[24] If your organization finds themselves in a position where they need to defend their conduct before the CNESST, you will want to ensure that you have kept the necessary records to demonstrate how the organization met their obligations.
2. Francization of Enterprises
Provincial governments in Québec have long adopted Francization policies aimed to protect and expand the use of the French language in the province. Bill 96 builds on past efforts and requires certain organizations to register in the francization program and/or establish a francization committee.
A. Registration with the Office and Francization Program
Businesses that have 50 or more employees in Québec have to register to the l’Office québécois de la langue française (the “Office”) within six months, and provide an analysis of the usage of French at their workplace within three months of the date on which they received a certificate of registration from the Office.[25] The Francization Committee must carry out and an analysis of the linguistic situation in the workplace. Once the report is completed, the employer will need to send a copy of the analysis to the Office.
If the Office examines the language in your organization and considers that the use of French is generalized, the Office will issue a francization certificate.[26] If the Office considers that the use of French is not generalized, the Office will notify the company that it is to adopt a francization program.[27] If your organization has been given notice to establish a francization program, there are specific requirements your organization will need to meet to obtain a francization certificate. We strongly encourage the organization to seek guidance from your labour and employment lawyer on this issue.
On June 1, 2025, this program will capture a greater number of employers as the threshold for needing to register with the Office will change to 25 employees.
B. Francization Committee
Larger employers in the province must also be aware of their francization committee responsibilities. Enterprises employing 100 or more persons must form a francization committee composed of six or more persons.[28] Enterprises employing fewer than 100 persons are required to do so only if the Office orders them to create such a committee, of which the Office determines the number of members.[29]
The francization committee shall
- Designate a representative to the Office;
- Analyze the language situation and draft the report;
- Oversee the development of the francization program, supervise its implementation and, where necessary, see to the drafting of the report of the program;
- Ensure where an enterprise holds a francization certificate, that the use of French remains generalized within the enterprise and see to the drafting of the three-year report; and
- At the request of the management of the enterprise, give its opinion on the employer’s practice of requiring a person to have knowledge or a specific level of knowledge of a language other than French to keep or obtain a position and on the means taken to avoid imposing such a requirement.[30]
Employers are further required to submit reports to the Office on the implementation of the francization program every 12 months and to provide the report to their employees.[31] Furthermore, every 3 years employers will need to submit a report outlining the progress on the use of French in the workplace.[32]
The committee must hold a meeting every six months,[33] and they may establish subcommittees to assist it in the exercise of its functions.[34] In addition, management must allow the committee to participate in the activities intended to inform employees about the implementation or progress of any francization program.[35]
3. Non-Compliance with the Charter
A failure to comply with the Charter may lead to the Office issuing an order to comply. Contravening this order to comply can lead to significant fines between $3,000 to $30,000 per day of contravention.[36] These fines can accumulate quickly, as everyday an employer is in violation of the Charter is considered a separate offence.[37]
Individuals who disclose false information to the Office are liable to a fine from $2,000 to $20,000 in the case of a natural person and $10,000 to $250,000 in all other cases.[38] If the offence is committed by a director or officer of the organization, the fines are double those of a natural person.[39] Directors should be extremely cautious as they will be presumed to have committed the offence, unless they can establish they exercised due diligence and took the necessary precautions to prevent the offence.[40] Repeat violators can also have their permit suspended or revoked which would evidently cause significant stain on an organization.[41] This can have especially significant financial repercussions for businesses who are reliant on their Québec operations for, amongst other things, manufacturing.
4. Important Takeaways
The financial and reputational consequences for noncompliance with the Charter can cause significant strain on any business. Added with the potential consequence of losing their permit, and employers must be attentive about their obligations under the Charter.
Defence and security sector companies carrying on activities in Québec should review their employment practices to ensure they continue to meet their Charter obligations. There are various ways to ensure proper compliance, depending on the size and structure of your organization. For starters, employers should consider translating employment related documents and templates into French, drafting an acknowledgment form for employees who wish to receive documentation and communication in another language, establish an internal written communication policy that complies with the Charter, review any active job postings or internal job posting guidelines and if applicable, ensure proper francization requirements are met.
If your organization needs help ensuring proper compliance with the Québec Charter, please contact François Russo at frusso@ehlaw.ca.
More generally, Emond Harnden LLP’s Defence & Security Team can be contacted using the details below. Our firm is dedicated exclusively to assisting employers with labour and employment law.
[1] Charter of the French Language, CQLR c C-11, s 41 (“Charter”).
[2] Charter, s 41(1).
[3] Charter, s 41(2).
[4] Charter, s 41.
[5] Charter, s 41.
[6] Charter, s 41(4)(a).
[7] Charter, s 41(4)(b).
[8] Charter, s 41(4)(c).
[9] Charter, s 41.
[10] Charter, s 41.
[11] Charter, s 41.
[12] Marchetta c. Tribunal administratif du travail, 2023 QCCS 3254.
[13] Charter, s 42.
[14] Charter, s 46.
[15] Charter, s 46.
[16] Charter, s 46.1(1).
[17] Charter, s 46.1(2).
[18] Charter, s 46.1(3).
[19] Charter, s 46.1.
[20] Charter, s 45.1.
[21] Charter, s 45.1.
[22] Charter, s 45.
[23] Charter, s 45.
[24] Charter, s 47.
[25] Charter, s 139.
[26] Charter, s 140.
[27] Charter, s 140.
[28] Charter, s 136.
[29] Charter, s 136.
[30] Charter, s 138.1.
[31] Charter, s 143.
[32] Charter, s 146.
[33] Charter, s 138.3.
[34] Charter, s 138.1.
[35] Charter, s 138.1.
[36] Charter, s 205.
[37] Charter, s 208.1.
[38] Charter, s 206.
[39] Charter, s 208.
[40] Charter, s 208.4.2
[41] Charter, s 204.28
