Women Under Quebec Labour Law
Roy L. Heenan*
The contradictions in Quebec Labour law concerning the status of
women can only be understood in an historical perspective. After
all, it was only in 1927 that the Supreme Court of Canada un-
animously ruled that a woman was not even a “Person” (In
the
matter of a reference as to the meaning of the word “Persons” in
Section 24 of the British North America Act, 1867,1 and was not
therefore eligible for appointment to the Senate. If Quebec law
has finally acknowledged that women are persons and even an-
nounced a policy prohibiting discrimination in employment matters
on the basis of sex, several major statutes retain historical res-
trictions which render equality of treatment illusory.
At the time of writing the Employment Discrimination Act2 is
still law. Officially, there is to be no discrimination on the basis of
sex in the hiring, promoting, laying-off or dismissing of an employee
or in the conditions of his (sic) employment2 and a union is
forbidden from discriminating in admitting, suspending or expelling
a member.4 While discrimination is defined broadly as
any distinction, exclusion or preference made on the basis of … sex …
which has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation,
the practical effect is considerably tempered by the provisions that
a distinction “based on the inherent requirements” (not defined)
of a particular job is not deemed to be discrimination.” Even more
telling, any management position is excluded from the scope of the
Act .7
The practical import of the Act is thus considerably restricted.
* Member of the Bar of Quebec, Lecturer on Labour Law at the Faculty of
Law, McGill University.
1 [1928] S.C.R. 276, rev’d by [1930] A.C. 124 (P.C.).
2 R.S.Q. 1964, c.142.
3 Ibid., s.2.
4 Ibid., s.3.
5 Ibid., s.1 (a).
6 Ibid.
7
.e., any “person employed as manager, superintendent, foreman, or
representative of the employer in his relations with his employees”. Ibid.,
s.1 (2) (c) (1).
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WOMEN UNDER QUEBEC LABOUR LAW
In addition, its application is left to the Minimum Wage Com-
mission which must investigate complaints and report to the Minister
of Labour and Manpower. Prosecutions can only be instituted with
the latter’s consent and fines range from $25 to $100.8 Cumbersome
administrative procedures coupled with the minimal fines have done
little to ensure the enforcement of an otherwise well intentioned piece
of legislation. Indeed, the Act has been largely ignored and has had
little, if any, practical effect on discriminatory practices.
In spite of the Act, it has not been unusual to find job classifica-
tions specifically referred to as “male” or “female” in collective
agreements, and even more common to find different seniority lists
based on sex –
in order to make quite sure that a female could not
displace a male in times of lay-off. Both unions and management
being party to these agreements, it is perhaps not surprising that
prosecutions have not been taken under the Act against such
contractual provisions. Possibly the Minister of Labour has been
further discouraged by the finding of a Judge of the Court of
Sessions of the Peace, in the case of R. v. Lafferty,’ that the Act was
ultra vires the Provincial legislature because it created a criminal
offence.
Similar provisions to those of the Employment Discrimination Act
may also be found in the Manpower Vocational Training and Quali-
fication Act,’ which prohibits discrimination
based on … sex …
in selecting candidates for apprenticeship or for
vocational training, in carrying out such programmes for apprenticeship
or vocational training or in the examination for certificates of qualifi-
cation.”
However, as in the Employment Discrimination Act, distinctions may
be made on the basis of particular job requirements.12
The provisions of both the Employment Discrimination Act and
the Manpower Vocational Training and Qualification Act, imperfect
though they may be, point to the legislators’ theoretical desire to
avoid discrimination on the basis of sex. Such an avowed policy
might be taken more seriously if the labour laws themselves were
not riddled with discriminatory provisions paternalistically aimed
8 Ibid., ss.5 and 6. Higher penalties are provided in the case of an association
of employers or employees and range from $100 to $1,000 (s.6).
9 (1969) 8 C.R. (N.S.) 70; 70 C.L.L.C. 14,004. An appeal from the decision has
not been finally disposed of.
10 S.Q. 1969, c.51.
11 Ibid., s.46.
12 Ibid.
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at protecting a woman either from the employer or other workers
or, more simply, from herself.
The most flagrant example of this legislative thoughtfulness,
based on the presumed weakness of the female sex, is to be found
in the Professional Syndicates Act 13 where a married woman is
equated with “minors of sixteen years of age” and graciously allowed
to join a professional syndicate, unless her husband objects, in
which case she is protected from her rashness and cannot join. The
specific provision reads as follows:
Minors of sixteen years of age and married women, except when the
husbands object, may be members of a professional syndicate.14
This provision has been brought to the attention of the Minister of
Labour who has expressed the intention of amending the legislation,
but at the time of writing it continues to be law.
The provision is a carry-over of more general legislation which,
in employment matters, required the husband’s consent to a wife’s
employment. It should be remembered that as recently as 1964 a
wife could not become a public trader without express or implied
authorization from her husband. 5 Although the Code was silent on
the need for such authorization when a wife wished to exercise a
profession or seek employment, such silence was interpreted as
requiring marital authorization before she could do so.”, Indeed,
in the case of Dame Langstaff v. The Bar of the Province of Quebec’
it was held that a woman could neither be admitted to the study of
law nor to the practice of the legal profession. To add insult to
injury, it was further held that if she was married she could not, in
any event, be admitted to the practice of law without the authoriz-
ation of her husband or a judge.
It is worth pausing at this case which, in the following passages,
reflects the attitudes of the time:
As might well be expected, the Bar of the Province of Quebec
strenuously opposing the granting of the conclusions of her petition.’ 8
… I would put within the range of possibilities though by no means a
commendable one, the admission of a woman to the profession of solicitor
or that of avoud, but I hold that to admit a woman and more particularly
a married woman, as a barrister, … would be nothing short of a direct
is
1-3 R.S.Q. 1964, c.146.
14 Ibid., s.7.
15 Art.179 C.C., repealed by S.Q. 1964, c.66 (Bill 16).
10 Ouellette, Condition juridique de la femme marine en droit qudbdcois
(1970) 5 RJ.T. 189, 193.
17 (1915) 47 C.S. 131.
18 Ibid., 132.
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WOMEN UNDER QUEBEC LABOUR LAW
infringement upon public order and a manifest violation of the law of
good morals and public decency.
Let us for a moment picture to ourselves a woman appearing as
defending or prosecuting counsel in a case of rap[e] and putting to the
complainant the questions which must of all necessity be asked in order
to make proof of the acts which are of the essence of the crime or which
are equally necessary to meet and repeal the charge.
No woman possessing the least sense of decency could possibly do so
without throwing a blur upon her own dignity and without bringing into
utter contempt the honor and respect due to her sex.19
… After what I have said above, she will no doubt understand that her
ambition in life should be toward the seeking of a field of labour more
suitable to her sex… 20
Comparatively, at least, we have come a long way.
Under Bill 16 in 196421 positive recognition was given to the fact
that a married woman could carry on a trade or calling distinct from
that of her husband and, obviously, without the necessity of his
consent.2 2 The word “calling” has a wider connotation than “pro-
fession”. As Germain Bribre commented, the effect of the new law
was that:
La femme maride peut donc … exercer toute profession, lib6rale ou non,
tout m6tier, tout emnloi, en somme toute activitd professionnelle sans le
consentement et m~me nonobstant 1’opposition de son mar.2
This was so accepted by 1970 that the legislators did not see the
need to reproduce the former article 1811 in the 1970 amendments
to the Code.25 However, in the present article 1291a C.C. the last
vestiges of the restrictions are found in the stipulation that a wife
common as to property who carries on a trade or.a calling despite
her husband’s opposition, only binds the community to the extent
of the benefit it derives from such trade or calling.
The provision contained in the Professional.Syndicates Act”0 that
a woman cannot join a professional syndicate in the face of her
husband’s objections, remains as the last of these series of pro-
visions requiring the husband’s consent on employment matters,
and undoubtedly like the rest, will soon be relegated to history.
19 Ibid., 139-140.
20 Ibid., 145.
21 An Act respecting the legal capacity of married women, S.Q. 1964, c.66.
22 Former arts.181 and 182 C.C. Art.181 C.C. read as follows: “A married
woman may engage in a calling distinct from that of her husband.”
23 Bri~re, “Le nouveau statut juridique de la femme maride” in Lois nou-
velles (1965), 7, 10.
24 Supra, f.n22.
25 An Act respecting matrimonial regimes, S.Q. 1969, c.77 (Bill 10).
26 Supra, f.n.13.
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Of greater practical significance were the provisions under the
Industrial and Commercial Establishments Act.2 7 In framing laws
to protect women at work, the legislators created a situation where
discrimination would obviously result. For instance, until 1968, the
employment of women at night was prohibited in industrial and
commercial establishments.2 8 This was in keeping with the inter-
national conventions of the time 29 which set out the general principle
that women should not be employed during the night. The practical
effect of this prohibition was, of course, to restrict employment
opportunities for women.
As a result of this, in Quebec the prohibition which existed pre-
viously was removed in 1968 and provision was made in the Act
for the possibility of employment of women at night. However, such
employment was made conditional on several factors:3
1. A permit for such work had to be granted by the Minister of
Labour who had to be satisfied “that the nature of production,
market conditions and other special circumstances so require”;
2. The certified union had to be consulted by the Minister prior to
granting a permit, and in fact, although not in law, a permit was
seldom if ever given if the union was opposed;
3. The work could not start before eleven o’clock in the evening or
after midnight;
4. There were special rest requirements;
5. The hours of the shift could not be more than eight;
6. The safety of women who had to leave their work before 7 a.m.
had to be ensured by the employer who was required to provide
them with a safe and convenient means of transport home;
27R.S.Q. 1964, c.150, as am. by S.Q. 1968, c.46 and An Act to amend the
Industrial and Commercial Establishments Act, Bill 27, 3d Sess., 30th Leg.,
Que. Nat. Ass., 1975, assented to June 27, 1975.
28 Ibid., s.16. An industrial establishment is defined as including “manufac-
tories, works, workshops, workyards and mills of all kinds…” and a com-
mercial establishment as meaning “any place where merchandise is sold”;
ibid., ss.2(3) and 2(4) respectively.
29The Night Work (Women) Convention 1919, The Night Work (Women)
Convention (Revised) 1934 and the Night Work (Women) Convention (Revised)
1948; see The Geneva International Labour Office, Conventions and recom-
mendations adopted by the International Labour Conference 1919-1966 (1966).
-30 lndustrial and Commercial Establishment Act, supra, f.n.27, s.18a, and
General regulations respecting industrial and commercial establishments,
Q.S.R. 5421, s.99(2) and (3), repealed by An Act to amend the Industrial and
Commercial Establisments Act, supra, f.n.27.
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WOMEN UNDER QUEBEC LABOUR LAW
7. During the whole of the shift there had to be at least one female
supervisor, nurse or first aid attendant to see to the health of
the female staff;
8. There had to be at least two women per workroom or workshop
on the night shift, besides the female supervisor.
Further, distinctions were made in the Act on the basis of sex.
For instance, by sections 15 and 16 no girl or woman, or boy of less
than eighteen years, could be employed in an industrial establishment
for more than nine hours in one day or fifty hours in bne week, or
more than fifty-four hours a week in a commercial establishment.
Such restrictions did not exist for men. Specific hours were also set
down for the commencement and end of the work in which women
were employed. Further, it was discretionary to the Lieutenant Gov-
ernor in Council to prohibit entirely the employment of women and
girls in certain industrial establishments or parts thereof “which he
may deem dangerous or harmful to their health”Y’ It is not surprising
under the circumstances that employers avoided the restrictions, for
instance by not applying for a permit and hiring only men for
the night shift.
The recently introduced legislation32 eliminates entirely these
restrictions in the Act with respect to employment of women. The
stated intent of the legislation is to “remove the distinctions between
men and women with respect to work, while retaining special con-
ditions of employment with respect to youth” 3
A more blatant example of discrimination remains in the Mining
Act,3 4 section 259 of which provides that:
No woman or girl shall work underground in a mine, except as an engineer
or geologist.
At the present time there is no legislation pending to rectify this
situation.
Traditionally and historically, it has been accepted that women
are the weaker sex, who need to be protected by legislation differ-
ently from men regarding their conditions of employment. The
very protections, however, serve in many instances to deny equality
of opportunity to women. The traditional concepts are running
directly into the theoretically espoused principle of equality. Ulti-
mately, the legislators must make a choice: Will they opt for protec-
tion on the basis of sex, or equality?
31 Supra, f.n.27, s.6(3).
32An Act to amend the Industrial and Commercial Establishments Act,
supra, f.n27.
33 Journal des Ddbats, Assemblde nationale, 14 mai, 1975, vol.16, no28, 771.
34 S.Q. 1965, c.34.
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The passage of the Charter of human rights and freedoms 5 as
well as the amendment to the Industrial and Commercial Establish-
ments Act discussed above, 6 offer some indication of the legislators’
choice. The Charter will repeal the Employment Discrimination
Act.3 7
its place, the Charter purports to provide for sweeping
equality in the area of employment, labour relations, and working
conditions. This policy is embodied in section 16 which provides:
In
No one may practice discrimination in respect of the hiring, apprenticeship,
vocational training, promotion, laying-off, dismissal or conditions of em-
ployment of a person, or in respect of the admission, enjoyment of
benefits, suspension or expulsion of a person to, of or from an association
of employers or employees or any professional corporation or association
of persons carrying on the same occupation.
The steps taken by the legislature within the last few months are
significant.
The Charter also provides for equal pay for equal work.3 8 How-
ever, the effect is somewhat diluted by the provision that this rule
applies “to the members of [the employer’s] personnel who perform
equivalent work at the same place”. Furthermore:
A difference in salary or wages based on experience, seniority, years
of service, merit, productivity or overtime is not considered discriminatory
if such criteria are common to all members of the personnel.
The practical consequences of the new policy are put still further in
doubt in view of the fact that the provisions of the Charter are over-
ridden by existing law. Sections 51, 52 and 53 provide:
51: The Charter shall not be so interpreted as to extend, limit or amend
the scope of a provision of law except to the extent provided in
section 52.
52: Sections 9 to 38 prevail over any provision of any subsequent act
which may be inconsistent therewith unless such act expressly states
that it applies despite the Charter.
If any doubt arises in the interpretation of a provision of the act,
it shall be resolved in keeping with the intent of the Charter.
53:
If the legislators really wish to give practical effect to their choice
of equality of the sexes in labour legislation, they must still relegate
to history the remaining statutory provisions which continue to
reflect the preoccupations of a bygone age. Women for some time
have been called to the Quebec Bar, which is no longer “strenuously
opposing”39 their admission. Hopefully, they soon will be able to
join a professional syndicate – whether or not their husbands object.
s5 Bill 50, 3d Sess., 30th Leg., Que. Nat. Ass., 1975, assented to June 27, 1975.
36 Supra, f.n.32.
37 Supra, f.n.35, s.91. In addition, s.93 will repeal section 46 of the Manpower
3 s Ibid.,
39 Supra, f.n.17, 132.
Vocational Training Act, supra, f.n.11.
.19.
