R-24.0.1 - Act respecting the representation of certain home educational childcare providers and the negotiation process for their group agreements

Updated to 19 June 2009

This document has official status.

chapter R-24.0.1

Act respecting the representation of certain home childcare providers and the negotiation process for their group agreements

CHAPTER I SCOPE

1. This Act applies to home childcare providers whose operation is subsidized under the Educational Childcare Act (chapter S-4.1.1) and to the associations that represent them.

This Act does not apply to the persons home childcare providers hire to assist or replace them.

2009, c. 36, s. 1.

CHAPTER II RIGHT OF ASSOCIATION

DIVISION I RECOGNITION OF A HOME CHILDCARE PROVIDERS ASSOCIATION

2. A home childcare provider has the right to belong to the home childcare providers association of that person’s choice and to participate in the formation, activities and management of such an association.

2009, c. 36, s. 2.

3. A home childcare providers association is entitled to recognition by the Commission des relations du travail established by section 112 of the Labour Code (chapter C-27) if

(1)  it is a professional syndicate within the meaning of the Professional Syndicates Act (chapter S-40) or an association whose object is similar to that of such a syndicate;

(2)  it meets the conditions set out in this Act as to the representation of home childcare providers operating in a given territory; and

(3)  it meets the other conditions set out in this Act.

For the purposes of this Act, “territory” refers to a territory assigned under section 44 of the Educational Childcare Act (chapter S-4.1.1).

2009, c. 36, s. 3.

4. An association of home childcare providers may only be recognized if its by-laws

(1)  provide for the right of its members to participate in meetings and to vote;

(2)  require that its financial statements be disclosed to its members each year and that copies be given free of charge to any member who requests them; and

(3)  require that any election to an office within the association be by secret ballot of its members.

2009, c. 36, s. 4.

5. No person may use intimidation or threats to induce someone to become a member, refrain from becoming a member or cease to be a member of a home childcare providers association.

2009, c. 36, s. 5.

6. No person may, in any manner, seek to dominate or hinder the formation or activities of a home childcare providers association.

2009, c. 36, s. 6.

7. A complaint relating to section 5 or 6 must be filed with the Commission within 30 days after the alleged contravention comes to light.

2009, c. 36, s. 7.

8. An application for recognition of a home childcare providers association is made in the form of a written document addressed to the Commission, and must be sent together with duly dated membership forms. On receipt of the application, the Commission sends a copy to the Minister along with any information it considers appropriate.

The application must specify the territory concerned, be authorized by a resolution of the association and be signed by representatives specially mandated for that purpose.

Within 20 days after receiving a copy of the application, the Minister sends to the Commission and the association a list of the names and contact information of all home childcare providers operating in the territory for which recognition has been requested.

The Commission may, by any means it considers appropriate, make a copy of the application available to the public for consultation.

2009, c. 36, s. 8.

9. An application for recognition must be accompanied by up-to-date documents evidencing the establishment of the association, a certified copy of its by-laws and a list of its members.

To be considered a member of an association, a home childcare provider must, on or before the date on which the application for recognition is filed,

(1)  maintain a home childcare operation in the territory covered by the application;

(2)  have signed, and not revoked, a duly dated membership form; and

(3)  have personally paid the initiation fee, set by the association, within the 12 months preceding the date on which the association’s application for recognition is filed.

2009, c. 36, s. 9.

10. Recognition for a given territory may be applied for

(1)  at any time with regard to home childcare providers who are without a recognized association;

(2)  12 months after the date on which an association was recognized, if a group agreement has not been reached and provided no dispute is under arbitration, and no lawful concerted action or action in response to lawful concerted action has been taken;

(3)  nine months after the date on which a group agreement expired, if a subsequent agreement has not been reached and provided no dispute is under arbitration and no concerted action has been taken;

(4)  from the 90th to the 60th day prior to the date of expiry or renewal of a group agreement whose term is three years or less;

(5)  from the 180th to the 150th day prior to the date of expiry or renewal of a group agreement whose term is more than three years and, where such term so allows, during the period extending from the 180th to the 150th day prior to the sixth anniversary of the signing or renewal of the group agreement and every second anniversary thereafter, except where such a period would end within 12 months of the 180th day prior to the date of expiry or renewal of the group agreement.

2009, c. 36, s. 10.

11. The filing of an application for recognition for a territory in which the home childcare providers are without a recognized association renders inadmissible any other application filed after the date of the first filing.

For the purposes of the first paragraph, an application is deemed to have been filed on the day it is received by one of the offices of the Commission.

2009, c. 36, s. 11.

12. If an application for recognition is rejected by the Commission or withdrawn, no further application may be filed for a period of three months except in the case of an application inadmissible under section 11.

2009, c. 36, s. 12.

13. The Commission grants recognition if it is satisfied that the membership of the applicant association comprises an absolute majority of the home childcare providers operating in the territory and that the other conditions set out in this Act have been met.

If between 35% and 50% of the home childcare providers operating in the territory are members of the association, the Commission holds a secret ballot to ensure that the association is truly representative. The Commission grants recognition to the association if it obtains an absolute majority of the votes of the home childcare providers operating in the territory and meets the other conditions set out in this Act.

2009, c. 36, s. 13.

14. If two or more associations seek recognition for the same territory and the membership of one of them comprises an absolute majority of the home childcare providers operating in the territory, the Commission grants recognition to that association provided it meets the other conditions set out in this Act.

If none of the associations meet the requirements of the first paragraph, but at least one of them has a membership comprising between 35% and 50% of the home childcare providers operating in the territory, the Commission holds a secret ballot to determine the extent to which the associations are representative.

Only the association or associations whose membership comprises at least 35% of the home childcare providers operating in the territory and the association recognized for the territory, if any, are to appear on the ballot. The Commission grants recognition to the association that obtains the most votes provided the home childcare providers who participated in the vote constitute an absolute majority of the home childcare providers operating in the territory and the other conditions set out in this Act are met.

2009, c. 36, s. 14.

15. The Commission makes its decision within 60 days of receiving an application and notifies the applicant; a copy of the decision is sent to the Minister.

If granted, recognition takes effect on the date of notification.

2009, c. 36, s. 15.

16. The Commission may not grant recognition to an association if it is established to the Commission’s satisfaction that section 5 or 6 has been contravened by that association.

The Commission may, on its own initiative, investigate any alleged contravention of either of those sections, and when ruling on an application for recognition, the Commission may, of its own motion, invoke non-compliance.

2009, c. 36, s. 16.

17. A person’s membership in a home childcare providers association may not be revealed by anyone during recognition or recognition revocation proceedings, except to the Commission, a member of its personnel, or the judge of a court to which an action under Title VI of Book V of the Code of Civil Procedure (chapter C-25) relating to a certification is referred. These persons and any other person who becomes aware of a person’s membership in such an association are bound to secrecy.

2009, c. 36, s. 17.

18. A recognized home childcare providers association represents all the home childcare providers operating in a given territory. It has the following rights and powers:

(1)  to defend and promote the economic, social, moral and professional interests of home childcare providers;

(2)  to cooperate with any organization pursuing similar interests;

(3)  to research or study any subject likely to have an impact on the economic and social situation of home childcare providers;

(4)  to set the amount of dues payable by home childcare providers; and

(5)  to negotiate and sign a group agreement in accordance with this Act.

2009, c. 36, s. 18.

19. A recognized home childcare providers association notifies the Minister in writing of the amount it has set as dues.

Within 30 days after receiving such notification, the Minister withholds these dues from the subsidies payable to home childcare providers, whether or not they are members of the association, and remits the dues to the association each month.

2009, c. 36, s. 19.

20. A recognized home childcare providers association must not act in bad faith or in an arbitrary or discriminatory manner, or exhibit serious negligence towards any home childcare providers, whether or not they are members of the association.

2009, c. 36, s. 20.

21. A home childcare provider who believes that an association has contravened section 20 may lodge a complaint with the Commission within six months after the occurrence of the alleged contravention.

If the Commission is of the opinion that the association has contravened section 20, it may authorize the home childcare provider to submit the complaint to an arbitrator appointed by the Minister of Labour for a decision in accordance with the disagreement arbitration procedure provided for in the group agreement or, in the absence of such a procedure, in accordance with the procedure provided for in the second paragraph of section 56. The association pays the expenses incurred by the home childcare provider.

2009, c. 36, s. 21.

22. If a complaint is referred to an arbitrator under section 21, the Minister may not allege the association’s non-observance of the procedure or the time periods provided for in the group agreement for the settlement of disagreements.

2009, c. 36, s. 22.

23. At the Commission’s request, a home childcare providers association must send a list of its members to the Commission, in the form and within the time determined by the Commission.

The association must also send, at the Commission’s request, a copy of any change in its statutes or by-laws to the Commission.

2009, c. 36, s. 23.

24. The Minister or a home childcare providers association whose membership comprises at least 35% of the home childcare providers operating in a given territory may, within the time periods specified in paragraphs 2 to 5 of section 10, ask the Commission to verify whether a recognized association still exists or still meets the conditions for recognition under this Act.

The Commission notifies the parties of the results of the verification and allows them to present observations within 10 days after receiving such notification.

2009, c. 36, s. 24.

25. The Commission revokes the recognition of any association that has ceased to exist or no longer meets the conditions set out in this Act and, if applicable, grants recognition to another association.

A newly recognized association is subrogated by operation of law in all rights and obligations resulting from a group agreement that is binding on another association and in force. It is bound by the agreement as though it were named in it and becomes a party to any proceeding relating to the group agreement in the place and stead of the former association.

2009, c. 36, s. 25.

26. When the Commission revokes a recognition, it notifies the association and the Minister. The revocation takes effect on the date of notification and entails the forfeiture of any rights and advantages the association may have enjoyed under this Act or a group agreement.

2009, c. 36, s. 26.

27. At any time, at the request of an interested party, the Commission may decide whether a person is a home childcare provider within the meaning of section 1, whether the person is a member of an association or which recognized association may represent the person given the territory in which the person operates as a home childcare provider. In addition, the Commission may decide any other question that may arise while an association is recognized.

2009, c. 36, s. 27.

DIVISION II MODIFICATION OF A TERRITORY

28. If the Minister modifies a territory for which a home childcare providers association has been recognized or has filed an application for recognition, the Minister notifies the association or associations concerned in writing.

The recognized association continues to represent the home childcare providers of the original territory until the Commission rules on the representativeness of the association given the new territory determined by the Minister.

Upon such ruling, the Commission may

(1)  grant or amend a recognition; or

(2)  recognize the home childcare providers association whose membership comprises an absolute majority of the home childcare providers operating in the new territory, or hold a secret ballot under section 14 and grant recognition to the association that obtains the most votes in accordance with that section.

Despite the second paragraph of section 25, the group agreement that is binding on the association recognized for the new territory applies, as of the date on which it is recognized, to the home childcare providers operating in the new territory.

The Commission revokes the recognition of any home childcare providers association that no longer meets the conditions set out in this Act.

2009, c. 36, s. 28.

29. At the request of an interested party, the Commission may rule on any question relating to the applicability of section 28 and resolve any difficulty arising from its application and effects, in the manner the Commission considers most appropriate.

2009, c. 36, s. 29.

DIVISION IV PRESSURE TACTICS

49. The right to undertake concerted action with a view to bringing the Minister to sign a group agreement is acquired 90 days after receipt of the notice referred to in section 36.

2009, c. 36, s. 49.

50. Concerted action that curtails services or affects their quality must be authorized in a secret ballot by a majority vote of the members of the recognized association who participate in the ballot.

If the association belongs to a group of associations, such concerted action must be authorized in a secret ballot by a majority vote of the members of the associations of the group who participate in the ballot.

The recognized association must take the steps necessary in the circumstances to inform its members, at least 48 hours in advance, that a ballot is to be held.

2009, c. 36, s. 50.

51. Before concerted action described in section 50 is undertaken, a recognized association or group of associations must give the Minister 15 days’ written notice of the tactics it plans to use. The association or group must also send a copy of the notice to the Minister of Labour.

2009, c. 36, s. 51.

52. The Minister may, in response to concerted action described in section 50, reduce or cease to pay a subsidy to a home childcare provider, or cease to participate in a program created under a group agreement.

A subsidized childcare space assigned to a home childcare provider may not be reassigned for the sole reason that the home childcare provider participated in lawfully undertaken concerted action.

In a case described in the first paragraph, the last paragraph of section 97 of the Educational Childcare Act (chapter S-4.1.1) does not apply.

2009, c. 36, s. 52.

53. Throughout the term of the group agreement and as long as the right to undertake concerted action has not been acquired, it is prohibited for a home childcare provider to take concerted action described in section 50.

Similarly, throughout the term of a group agreement, it is prohibited for an association of home childcare providers or a group of such associations, and their employees, to advise home childcare providers to resort to concerted action described in section 50, or to participate in such action.

2009, c. 36, s. 53.

54. Concerted action is prohibited as long as a home childcare providers association has not been recognized or the right to undertake concerted action has not been acquired.

2009, c. 36, s. 54.

55. A home childcare provider may not be penalized solely for participating in lawful concerted action or for acting on any other right conferred by this Act.

Any complaint relating to the first paragraph must be filed with the Commission within 30 days after the alleged contravention comes to light.

2009, c. 36, s. 55.

CHAPTER III MISCELLANEOUS PROVISIONS

58. The Government may, by regulation, establish a protective reassignment plan for home childcare providers, determine its conditions and mechanics and the rights and obligations of the parties involved, as well as the powers and duties of the Commission de la santé et de la sécurité du travail, established by section 137 of the Act respecting occupational health and safety (chapter S-2.1), and of the Commission des lésions professionnelles, established by section 367 of the Act respecting industrial accidents and occupational diseases (chapter A-3.001).

The Government may also, by regulation, determine how such a plan is to be funded and managed.

Such a plan is administered by the Commission de la santé et de la sécurité du travail.

2009, c. 36, s. 58.

59. The provisions of the Labour Code (chapter C-27) respecting the Commission des relations du travail, its commissioners and its labour relations officers apply, with the necessary modifications, to any application that lies within the purview of the Commission under this Act. Likewise, the provisions of the Code and its regulations that set out rules of procedure, evidence and practice apply to any applications the Commission may receive.

2009, c. 36, s. 59.

60. Failure to comply with section 45 or 50 only gives rise to the application of Chapter IV.

2009, c. 36, s. 60.

61. The group representation and negotiation process established by this Act is complete and applies to the exclusion of any other process.

2009, c. 36, s. 61.

62. No provision of this Act or of a group agreement may restrict or affect the powers and responsibilities conferred by the Educational Childcare Act (chapter S-4.1.1) and its regulations on a home childcare coordinating office or the Minister, nor restrict or affect the jurisdiction conferred on the Administrative Tribunal of Québec by that Act.

2009, c. 36, s. 62.

63. With the authorization of the Conseil du trésor, the Minister may make all or part of a group agreement entered into with a recognized home childcare providers association or a group of such associations applicable to any home childcare provider not represented by a recognized association for that territory.

2009, c. 36, s. 63.

CHAPTER IV PENAL PROVISIONS

64. Any person, association or group that fails to comply with a decision of the Commission des relations du travail is guilty of an offence and liable to a fine of $1,000 to $14,000 and of $2,000 to $28,000 for a second or subsequent conviction.

2009, c. 36, s. 64.

65. Any person, association or group that contravenes section 5 is guilty of an offence and liable to a fine of $2,000 to $30,000.

2009, c. 36, s. 65.

66. Any person, association or group that contravenes section 6 is guilty of an offence and liable to a fine of $1,000 to $14,000.

2009, c. 36, s. 66.

67. A home childcare providers association that contravenes section 23 is guilty of an offence and liable to a fine of $500 to $5,000.

2009, c. 36, s. 67.

68. A home childcare providers association or group of such associations that contravenes section 45 is guilty of an offence and liable to a fine of $500 to $5,000.

2009, c. 36, s. 68.

69. Any person, association or group that declares, instigates or participates in concerted action contrary to the provisions of any of sections 49 to 51, 53 and 54 is guilty of an offence and liable to the following fines for each day the action continues:

(1)  $75 to $225 in the case of a home childcare provider or a person who assists or replaces a home childcare provider;

(2)  $800 to $10,400 in the case of an officer, employee, director, agent or advisor of a home childcare providers association or a group of such associations; and

(3)  $7,000 to $126,000 in the case of a home childcare providers association or group of such associations.

2009, c. 36, s. 69.

70. If a home childcare providers association or a group of such associations contravenes any of sections 64, 65 and 67 to 69, the officer or representative of the association or group who authorized, permitted or consented to the commission of the offence is liable to the fines provided for in those sections. In the case of a second or subsequent conviction, the fines are doubled.

2009, c. 36, s. 70.

CHAPTER V AMENDING PROVISIONS

LABOUR CODE

71. (Amendment integrated into c. C-27, Schedule I).

2009, c. 36, s. 71.

TAXATION ACT

72. (Amendment integrated into c. I-3, s. 134.1).

2009, c. 36, s. 72.

EDUCATIONAL CHILDCARE ACT

73. (Amendment integrated into c. S-4.1.1, s. 8).

2009, c. 36, s. 73.

74. (Omitted).

2009, c. 36, s. 74.

75. (Amendment integrated into c. S-4.1.1, s. 11).

2009, c. 36, s. 75.

76. (Amendment integrated into c. S-4.1.1, s. 12).

2009, c. 36, s. 76.

77. (Amendment integrated into c. S-4.1.1, s. 31).

2009, c. 36, s. 77.

78. (Amendment integrated into c. S-4.1.1, ss. 40-40.2).

2009, c. 36, s. 78.

79. (Amendment integrated into c. S-4.1.1, ss. 42-42.1).

2009, c. 36, s. 79.

80. (Amendment integrated into c. S-4.1.1, s. 43).

2009, c. 36, s. 80.

81. (Amendment integrated into c. S-4.1.1, s. 45).

2009, c. 36, s. 81.

82. (Amendment integrated into c. S-4.1.1, s. 49).

2009, c. 36, s. 82.

83. (Amendment integrated into c. S-4.1.1, s. 52).

2009, c. 36, s. 83.

84. (Amendment integrated into c. S-4.1.1, s. 53).

2009, c. 36, s. 84.

85. (Amendment integrated into c. S-4.1.1, s. 54).

2009, c. 36, s. 85.

86. (Omitted).

2009, c. 36, s. 86.

87. (Amendment integrated into c. S-4.1.1, s. 59).

2009, c. 36, s. 87.

88. (Amendment integrated into c. S-4.1.1, s. 61).

2009, c. 36, s. 88.

89. (Amendment integrated into c. S-4.1.1, s. 62).

2009, c. 36, s. 89.

90. (Amendment integrated into c. S-4.1.1, s. 64).

2009, c. 36, s. 90.

91. (Amendment integrated into c. S-4.1.1, s. 66).

2009, c. 36, s. 91.

92. (Amendment integrated into c. S-4.1.1, s. 83).

2009, c. 36, s. 92.

93. (Amendment integrated into c. S-4.1.1, ss. 86-86.1).

2009, c. 36, s. 93.

94. (Amendment integrated into c. S-4.1.1, s. 92).

2009, c. 36, s. 94.

95. (Amendment integrated into c. S-4.1.1, s. 97).

2009, c. 36, s. 95.

96. (Amendment integrated into c. S-4.1.1, s. 103).

2009, c. 36, s. 96.

97. (Amendment integrated into c. S-4.1.1, s. 106).

2009, c. 36, s. 97.

98. (Amendment integrated into c. S-4.1.1, s. 108).

2009, c. 36, s. 98.

99. (Amendment integrated into c. S-4.1.1, s. 109).

2009, c. 36, s. 99.

100. (Amendment integrated into c. S-4.1.1, s. 124.1).

2009, c. 36, s. 100.

101. (Omitted).

2009, c. 36, s. 101.

102. (Omitted).

2009, c. 36, s. 102.

103. (Omitted).

2009, c. 36, s. 103.

CHAPTER VI TRANSITIONAL PROVISIONS

104. For the purpose of granting recognition to an association, the Commission des relations du travail, for each territory assigned under section 44 of the Educational Childcare Act (chapter S-4.1.1), verifies, by means of a secret-ballot vote held according to the terms and conditions provided for in this section, the representativeness of the home childcare providers associations which, before 19 June 2009, filed a petition for certification under section 25 of the Labour Code (chapter C-27) with respect to home childcare providers operating in that territory.

In each territory assigned under section 44 of the Educational Childcare Act, the following parties are on the ballot:

(1)  any association which, before 18 December 2003, filed a petition for certification or obtained certification with respect to one or more home childcare providers recognized by a childcare centre and operating, on 19 June 2009, in that territory;

(2)  any association which, on or after 18 December 2003, filed, with respect to home childcare providers operating in that territory, a petition for certification that is pending on 19 June 2009.

Only home childcare providers operating in a territory assigned under section 44 of the Educational Childcare Act on 19 June 2009 may be on the ballot for that territory.

If only one association is on the ballot, the Commission grants recognition to it if it obtains an absolute majority of votes of the home childcare providers entitled to vote in the territory concerned.

If two associations are on the ballot, the Commission recognizes the one that receives the most votes, provided they together obtain an absolute majority of votes of the home childcare providers entitled to vote in the territory concerned.

If more than two associations are on the ballot and they together obtain an absolute majority of votes of the home childcare providers entitled to vote in the territory concerned, without any one of them obtaining an absolute majority, the Commission orders a new secret-ballot vote, removing from the ballot the association that obtained the fewest votes.

On request, the Commission may resolve any difficulty arising from the application of this section, including one that may arise from the rule set out in section 11. To that end, it has all the powers provided for in section 59.

A secret-ballot vote is not required if, for a given territory, among the associations that qualify under the second paragraph, only one has a membership comprising an absolute majority of home childcare providers. This determination is made on the date the petition for certification is filed. However, with regard to a petition filed before 18 December 2003, the Commission may order a secret-ballot vote to be held if it believes this is required to verify the representativeness of the association concerned. To this end, it takes into account, apart from the date of the petition, the number of home childcare providers who are members of the association on the day of filing of the petition in relation to the number of home childcare providers to whom this Act applies who are currently operating in the territory concerned, the number of home childcare providers who were members of the association but no longer provide childcare in that territory and any other factor it judges pertinent.

2009, c. 36, s. 104.

105. Subject to section 104, any certification granted to an association representing home childcare providers under the Labour Code (chapter C-27), any pending petition for certification and any resulting recourse brought by an association or a home childcare provider before the Commission des relations du travail is without effect.

2009, c. 36, s. 105.

106. The Government may, by regulation made before 19 June 2010, enact any other transitional provision or measure for the administration of this Act.

Such a regulation is not subject to the publication requirement of section 8 of the Regulations Act (chapter R-18.1) or to the requirement of section 17 of that Act as regards its date of coming into force.

However, if the regulation so provides, it may apply from a date not prior to 19 June 2009.

2009, c. 36, s. 106.

107. A regulation made before 19 June 2010 for the purposes of section 58 may have a shorter publication period than that required under section 11 of the Regulations Act (chapter R-18.1), but not shorter than 20 days.

Such a regulation is not subject to the requirement of section 17 of that Act as regards its date of coming into force.

2009, c. 36, s. 107.

CHAPTER VII FINAL PROVISIONS

108. The Act respecting labour standards (chapter N-1.1) and the Act respecting occupational health and safety (chapter S-2.1) do not apply to home childcare providers to whom this Act applies.

However, sections 40 to 48 of the Act respecting occupational health and safety apply until the coming into force of the first regulation made under section 58.

2009, c. 36, s. 108.

109. The Commission de l’équité salariale, established by the Pay Equity Act (chapter E-12.001), may not receive a complaint from a home childcare provider to whom this Act applies.

2009, c. 36, s. 109.

110. The Minister of Families is responsible for the administration of this Act.

2009, c. 36, s. 110.

The Minister Responsible for Government Administration and Chair of the Conseil du trésor assumes responsibility for developing and coordinating a global collective negotiation strategy for the government administration. Order in Council 1638-2022 dated 20 October 2022, (2022) 154 G.O. 2 (French), 6513.

111. Sections 108 and 109 have effect as of 13 May 2009.

2009, c. 36, s. 111.

112. (Omitted).

2009, c. 36, s. 112.