Unsafe Work Refusals Narrower After October 31 for Federal Workers
Amendments to the Canada Labour Code (CLC) introduced by the federal government in its omnibus Budget Bill C-4 last year are set to take effect on October 31, 2014. All of the amendments concern Part II of the CLC addressing Occupational Health and Safety.
While there are a number of changes to Part II the CLC, the most significant changes concern the threshold and procedure underlying unsafe work refusals, which seek to enhance the internal responsibility system shared between employees and employers in ensuring a safe workplace. In a Consultation Paper published by the Department of Finance, the federal government stated that the amendments arose in large part because "over 80% of refusals to work in the last 10 years – from 2003 to 2013 – have been determined to be situations of no danger, even after appeals."
Accordingly, the definition of “danger” underlying an employee’s right to refuse to perform unsafe work has been narrowed significantly, removing the concept of “potential” dangers. Currently the definition of “danger” under the CLC is:
“any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.”
As of October 31, 2014, “danger” will be defined as:
“any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”
Note that the new definition of "danger" under the CLC will be similar to its previous definition, prior to 2000, at which point the CLC was amended to include the current concepts of "potential dangers".
The CLC amendments also include the elimination of "health and safety officers" (to be replaced with the Minister or its appointees) and changes to the procedures applicable to investigations of unsafe work refusals, including:
- upon being notified by an employee of a refusal to perform unsafe work, an employer will now expressly be required to investigate and prepare a written report (whereas currently, employers are obligated to “take immediate action” and no written report is required);
- if the work refusal continues after the employer's initial investigation, employer and employee representatives must investigate collaboratively and prepare a further written investigation report (whereas currently the onus is on the employer to engage the workplace safety committee or employee representative in an investigation and no written report is necessary);
- an employer is now permitted to provide the employer/employee investigators of an unsafe work refusal with further information following the preparation of the joint written report, and to ask them to reconsider their report in light of the new information (no such procedure currently exists);
- the employer must provide all written investigation reports to the Minister if the employee continues to refuse to perform work claimed to be unsafe (no such requirement currently exists);
- the Minister may refuse to further investigate a claim of unsafe work following the workplace investigations, which the employee may not appeal (currently, the health and safety officer is obligated to further investigate when an employee continues to refuse to perform work following the secondary investigation and the officer’s decision is subject to appeal); and
- an employee may not continue to refuse to perform work once the circumstances have been investigated by the employer and employee representatives and the Minister has either agreed that no danger exists, or has refused to further investigate the matter (currently, the CLC requires the health and safety officer to determine that no danger exists before an employee can be required to perform work).
The CLC retains its prohibition against disciplinary action by an employer against an employee exercising his or her rights under the CLC to refuse to perform unsafe work:
147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee
(a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;
(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or
(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.
Although objections have been voiced by employees' rights groups regarding the amendments to the CLC, in light of the statistics regarding valid unsafe work refusals and the significant costs and work disruptions associated with investigating claims of unsafe work, the amendments may come as no surprise to some.