OH&S Month Part 2: Unsafe Work Refusals, Now Narrower for Federal Workers

In every jurisdiction in Canada, employees and employers share the responsibility for ensuring a safe and healthy work environment. In British Columbia, employers are required by the Workers Compensation Act [WCA], to ensure the health and safety of their employees and others working at their work place, which includes investigating safety risks and advising employees of same, and taking steps to eliminate or mitigate identified risks. Likewise, employees have obligations to protect their own and others' health and safety, including reporting fit to work, wearing protective equipment, following safety procedures, and reporting any safety risks.

One aspect of the complementary obligations of employers and employees to ensure a safe work environment is the internal responsibility system regarding unsafe work, which involves the employee's right to refuse to perform unsafe work and the employer's obligation to investigate and remedy any unsafe work. In British Columbia, this right is set out in section 3.12 of the Occupational Health and Safety Regulation [Regulation], which states in part:

“A person must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.”

The test for whether a refusal is valid is whether the worker has a reasonable cause to believe the work creates an undue health and safety hazard, with "hazard" being defined as "a thing or condition that may expose a person to a risk of injury or occupational disease", therefore including "potential" hazards.

Federal employees have a similar right to refuse unsafe work under section 128 of the Canada Labour Code [CLC] which, like the Regulation, involves specific procedures that must be followed when an employee refuses to perform work that is claimed to be unsafe. At present, the procedures under provincial and federal legislation are similar, and generally include:

  1. An employee must immediately repeat his or her refusal to perform unsafe work to his or her supervisor or employer.
  2. The supervisor/employer must immediately investigate and either promptly remedy the unsafe condition or inform the employee that the refusal is invalid.
  3. If the employee continues to refuse, the supervisor or employer must investigate in the presence of the employee and either a member of the Joint Health and Safety Committee or Worker Representative, an employee selected by the trade union, or if no committee or union, another reasonably available employee.
  4. If the refusal is still not resolved, the supervisor/employer and employee must notify a health and safety officer, who must immediately investigate.

Once an employee has excercised his or her right to refuse to perform unsafe work, both the WCA and Regulation and the CLC prohibit an employer from taking any discriminatory or retaliatory action against the employee.

In response to concerns about unjustified work refusals under the CLC, the federal government introduced amendments to the CLC in its omnibus budget Bill C-4 last year, narrowing the circumstances in which a federal employee may refuse to conduct unsafe work and amending the investigation process to enhance the internal responsibility of employers and employees to ensure a safe working environment. Currently, the definition of "danger" under the CLC, like the definition of "hazard" in British Columbia, is relatively expansive:

“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 more narrowly 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.”

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 is expressly required to investigate and prepare a written report;
  • 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;
  • the employer must provide all written investigation reports to the Minister if the employee continues to refuse to perform work claimed to be unsafe;
  • the Minister may refuse to further investigate a claim of unsafe work following the workplace investigations; 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.

In a Consultation Paper published by the Department of Finance in connection with Bill C-4, 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."

It is interesting to 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".

Although objections have been voiced by workers' 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, it is no surprise that the federal government has taken action to address these concerns. Although BC legislation also addresses potential hazards, we are not aware of any calls for similar changes to the legislation in British Columbia.

We'll be sure to keep you updated of any further developments in the federal and provincial spheres.

occupational health and safety trade unions workers compensation

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