When the exception is the rule, should we take exception to the rules?

The government is planning a revision of the Act respecting Labour Standards (ALS), as announced by the Minister responsible for Labour last February at the conclusion of the Rendez-vous national sur la main-d’œuvre [national discussion on the labour force]. As a result, functionaries working for labour unions and employers are in the process of preparing their demands, to influence that process. However, we must assume that substantive changes to the legal framework governing internships will be left by the wayside unless student associations, mobilization committees, and affinity groups can organize a sufficiently combative response and force the issue onto the table. At the same time, we also need to consider what it is we can realistically hope to achieve by doing so. This reflection text takes a closer look at that very question.

Article 3 of the ALS:

“[Application of the Act] This Act does not apply: […]

(5) to a student who works during the school year in an establishment selected by an educational institution pursuant to a job induction program approved by the Ministère de l’Éducation, du Loisir et du Sport or the Ministère de l’Enseignement supérieur, de la Recherche, de la Science et de la Technologie”

Article 2 of the Regulation respecting Labour Standards:^[1]

“The minimum wage established in this Division does not apply to the following employees: […]

(2) trainee under a programme of vocational training recognized by law”.

The first provision acts to exclude individuals who are undertaking internships as part of their academic programs from the province’s labour standards as a whole. This affects every intern enrolled in a university, collegial, or professional program.

The second provision specifically targets anyone undertaking an internship for the purpose of acceding to a professional order, such as articling law students or engineering interns, and exempts them from the requirement to provide a minimum wage. People in that situation, when employed, can still demand that the ALS’ other protections be respected (such as overtime pay) and can make complaints to the CNESST [the Commission on Labour Standards, Equity, Health, and Safety] to force their employer to pay them the wage they had agreed upon. They simply can’t force their employer to pay them the minimum wage set by Quebec’s government.

In preparation for the government’s review of the ALS, the Montreal Coalition for Paid Internships adopted a demand for “the repeal of the exceptions in the Regulation respecting Labour Standards, ensuring that internships are excluded from it” ^[2] at its first meeting (UQAM; June 3, 2017). The underlying goal behind this demand was to try and ensure that all internships would be remunerated and to stop those “offering” internships from being able to decide whether they want to remunerate interns or not. But what impact would this demand actually have, if implemented? To do so, it is worth reviewing what, exactly, the ALS does.

In effect, the Act sets out the minimal working conditions that must be respect for any individual who is: 1) undertaking specific work, 2) under the direction and supervision of an employer, 3) and is entitled to a remuneration for this work.^[3] All three of these conditions must be met for an individual to be covered by these labour standards.

As such, the ALS does not actually establish an obligation to pay a wage for any and all work. Rather, it sets out the framework and processes that must be respected in a labour relation in which a wage ^[4] is paid or provided for. It is actually the agreement (or work contract) entered into by the intern and their employer that establishes whether they are “entitled to a wage,” ^[5] and not the ALS.

This helps us to understand why unpaid internships for individuals in a professional program are not illegal, even though these interns are recognized as employees under Article 2, (2) of the RLS. If the Act truly included an inherent entitlement to a wage, these interns would all have to be paid (even if below minimum wage). This is not the case.^[6] In summary, workers are granted the legal protections of the ALS because they are paid for their labour; they aren’t paid for their labour because of the Act’s legal protections.

Still, the ALS may create some legal obligation to pay a wage if an individual can prove that they are acting as an employee but aren’t being paid—a very different situation from volunteering. To show this, an intern would have to demonstrate that they’re in a subordinate relationship to an employer who is directing both the means and methods of their work and that they had to be available for work shifts. Although such a demonstration would certainly be possible^[7], aspects of certain internships could be shown to differ substantially from the structure of traditional employment. Right away, several elements—such as the role of educational establishments in supervising students and their limited availabilities due to the requirements from a concomitant course load—could lead to questions or obstacles in the recognition of interns as employees.

On the other hand, in cases where an intern agrees to work for free and their relationship to the employer is limited to the execution of that internship, it would be difficult to reconcile the argument that they are “entitled to a wage” with the rights and obligation set out in the Civil Code of Quebec^[8]. Specifically, the conditions initially agreed to by the parties of an agreement or contract (in this case the employer and intern) cannot be modified unilaterally—that is, by only one of the parties involved—while the contract is being executed.^[9]

As it stands, it is exactly those interns who are accomplishing work that could qualify them legally as employees who are currently being blocked from demanding a remuneration through the CNESST, as a result of the exception given in the ALS. Nonetheless, even if we were to imagine a scenario in which that exception is removed, we could expect several issues to arise: an individualization of the struggle, through individual and punctual analyses of internships; the (further!) division of working conditions for interns; an inconsistent access to information; long delays for judicial proceedings; inconsistent interpretations and explications of the rules; the failure of certain claims; etc.

Finally, if we consider the precarious situations of most students, it is certain that many would continue to accept to work under less favourable conditions so as to complete their studies as quickly as possible. Being “entitled to a wage” will force many interns to demand what they’re owed from their employer, or through the appropriate authority, without actually doing away with unpaid internships.

The removal of one or both of these exceptions/provisions cannot accomplish the desired goal—a remuneration of all internships. Collectively, we would still have to work to have internships recognized as labour, deserving of a wage, and to dissociate it from the dominant concept that “an intern is not an employee because their services are not required; they are simply there to learn.”^[10]

Undergraduate law students at UQAM^11 have also proposed analyzing the situation of internships from the perspective of various general principles of law, such as the restriction on enriching oneself at the expense of another without justification^[11] or an individual’s right to dignity^[12] and protection against discrimination^[13]—in this case against young people, students, inexperienced workers, or precarious individuals. These legal protections could lead to a recognition of the work accomplished by interns and could eventually lead to more important legislative changes that would resolve the absence of a legal framework governing internships.

It goes without saying that these issues could most easily be solved if universities and professional orders took responsibility for the internships they require, particularly as regards ensuring that all of the work accomplished during an internship is properly remunerated. They have the power and the opportunity—some might even say the duty—to resolve this injustice. Their first step in doing so should be the non-recognition of unpaid internships. There’s almost no point in mentioning that the government also has the power to accomplish this goal unilaterally, through its control over academic programs and professional orders.

Given these realities, it would be best not to get bogged down in a struggle that is purely judicial. A recognition of the work accomplished by interns will inevitably require a combative political campaign—one that exerts sufficient pressure on the government and forces it into action. It will also require an ideological struggle to change the dominant mindset around internships. We have far greater chances of shifting legislation in our favour if we can succeed in creating a context in which this form of labour is widely recognized as real work and in which significant political pressure is being placed on those in power.

Camille Marcoux

Translated by: Gene Morrow

Cet article a été publié dans le numéro de l’automne 2017 du CUTE Magazine.
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