OVERVIEW OF THE AMENDMENTS TO PART II OF THE CANADA LABOUR CODE 1. Definitions (subsection 122.(1)) Many definitions were created or redefined because of new terminology or new concepts adopted in the Code. appeals officer means a person who is designated as an appeals officer under section 145.1. danger means 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. health and safety officer means a person who is designated as a health and safety officer under section 140. health and safety representative means a person who is appointed as a health and safety representative under section 136. policy committee means a policy health and safety committee established under section 134.1. prescribe means prescribe by regulation of the Governor in Council or determine in accordance with rules prescribed by regulation of the Governor in Council. The appeals officer was formerly known as the Regional Safety Officer (RSO). This person hears appeals of all directions and decisions of no danger following a refusal to work. The definition of danger that existed previously went through a significant change. Where a hazard had to be present during an investigation of a refusal to work in the former Code, it can now be a potential hazard. For example, a dangerous condition may not be present when a health and safety officer responds to a refusal to work, but the officer may decide that there is a potential hazard or a condition where injury or illness may not follow immediately. The health and safety officer would therefore render a decision accordingly. A health and safety officer used to be called a safety officer under the Code. Health and safety representatives, formerly known as safety and health representatives, are appointed in companies where there are normally fewer than 20 employees. A policy committee must be established in companies where there are normally 300 or more employees. This is a new requirement under the Code. The term prescribed is used often in the Code even though some regulations have not yet been developed for many new requirements.
2 2. Methods of Communication (section 122.3) 3. Duties of Employers (sections 124 and 125) regional health and safety officer means a person who is designated as a regional health and safety officer under subsection 140(1). safety means protection from danger and hazards arising out of, linked with or occurring in the course of employment. work place committee means a work place health and safety committee established under section 135. (1) An employee with a special need shall be given any direction, notice, information, instruction or training that is required to be given to employees under this Part by any method of communication that readily permits the employee to receive it, including braille, large print, audio tape, computer disk, sign language and verbal communication. (2) For the purposes of this section, an employee has a special need if the employee is affected by a condition that impairs their ability to receive a direction, a notice, information, an instruction or training given by a method that would otherwise be sufficient under this Part. 124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. 125.(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity, This term is used mainly in the OSH regulations as the appropriate person to refer information to. This term was not defined in the former Code. It emphasizes the fact that safety includes the prevention of accidents and physical injuries to employees in connection with the work place or that are linked with employment. Work place committee was better known as the safety and health committee in the former Code. It is established at every work place where there are normally 20 or more employees. This new provision requires that employers and health and safety officers use whatever method of communication is necessary to ensure that employees with special needs understand the information that is being provided. The information may include a direction, a notice, training, instruction or other type of information. Employers have many additional duties that will impact on the manner in which occupational health and safety programs will be administered. Besides being responsible for the health and safety of employees in the work place, they are also responsible for making sure every work activity in a work place that is not controlled by the employer is conducted in a safe and healthy manner.
3 125.(1)(e) make readily available to employees for examination, in printed or electronic form, a copy of the regulations made under this Part that apply to the work place. 125.(1)(f) if a copy of the regulations is made available in electronic form, provide appropriate training to employees to enable them to have access to the regulations and, on the request of an employee, make a printed copy of the regulations available. 125.(1)(u) ensure that the work place, work spaces and procedures meet prescribed ergonomic standards. 125.(1)(x) comply with every oral or written direction given to the employer by an appeals officer or a health and safety officer concerning the health and safety of employees. 125.(1)(y) ensure that the activities of every person granted access to the work place do not endanger the health and safety of employees. 125.(1)(z) ensure that employees who have supervisory or managerial responsibilities are adequately trained in health and safety and are informed of the responsibilities they have under this Part where they act on behalf of their employer. 125.(1)(z.01) ensure that members of policy and work place committees and health and safety representatives receive the prescribed training in health and safety and are informed of their responsibilities under this Part. 125.(1)(z.02) respond as soon as possible to reports made by employees under paragraph 126.(1)(g). Regulations may be provided to employees in electronic form. If regulations are provided in electronic form, employees must be trained on how to use the medium for accessing the regulations. This new requirement will come into effect once regulations have been developed. However, it does not preclude the responsibility of the employer to ensure a healthy and safe work place. Directions may be issued by an appeals officer under specific circumstances and employers must comply with them as with any direction issued by a health and safety officer. This clause requires employers to take the necessary steps to ensure that actions of visitors or federal and provincial contractors do not endanger the health and safety of employees. Employers must ensure that supervisors and managers are trained in health and safety matters and that they are aware of their role when acting on behalf of their employer. When regulations come into effect, committee members and health and safety representatives as in the case of supervisors and managers, will also receive training in health and safety matters and be aware of their role as committee members or representatives. Employers must respond in a reasonable time frame to reports of hazardous circumstances made by employees.
4 125.(1)(z.03) develop, implement and monitor, in consultation with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative, a prescribed program for the prevention of hazards in the work place appropriate to its size and the nature of the hazards in it that also provides for the education of employees in health and safety maters. 125.(1)(z.04) where the program referred to in subparagraph (z.03) does not cover certain hazards unique to a work place, develop, implement and monitor, in consultation with the work place committee or the health and safety representative, a prescribed program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards. 125.(1)(z.05) consult the policy committee or, if there is no policy committee, the work place committee or the health and safety representative to plan the implementation of changes that may affect occupational health and safety, including work processes and procedures. 125.(1)(z.06) consult the work place committee or the health and safety representative in the implementation of changes that may affect occupational health and safety, including work processes and procedures. 125.(1)(z.07) ensure the availability in the work place of premises, equipment and personnel for the operation of the policy and work place committees. 125.(1)(z.08) cooperate with the policy and work place committees or the health and safety representative in the execution of their duties under this Part. Employers are required to put in place a program, to be developed by regulations, for the prevention of hazards in the work place and these programs must be developed, implemented and monitored in consultation with the policy committee or the health and safety committee when there is no policy committee. The size and nature of the work place will determine the type of prevention program needed. For work places not under an employer s control, the prevention program will address activities only to the extent that they are within the employer s control. This is a requirement for putting in place an additional prevention and education program for unique hazards in a work place. In planning the implementation of changes affecting occupational health and safety, including work processes and procedures, consultation must take place at the corporate level. This clause further requires that consultation has taken place at the employee level on the implementation of changes affecting occupational health and safety, including work processes and procedures. This clause requires that committees are provided the necessary resources to function efficiently. This paragraph calls for the willingness of the employer to work in cooperation with committees and/or representatives.
5 125.(1)(z.09) develop health and safety policies and programs in consultation with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative. 125.(1)(z.10) respond in writing to recommendations made by policy and work place committees or the health and safety representative within thirty days after receiving them, indicating what, if any, action will be taken and when it will be taken. 125.(1)(z.11) provide to the policy committee, and to the work place committee or the health and safety representative, a copy of any report on hazards in the work place, including an assessment of those hazards. 125.(1)(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year. 125.(1)(z.13) when necessary, develop, implement and monitor a program for the provision of personal protective equipment, clothing, devices or materials, in consultation, except in emergencies, with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative. The intent of this clause is to ensure the participation of policy committees in the development of occupational health and safety policies and programs. In the event that there is no policy committee, employers are to consult with the work place committees or the health and safety representatives. Policy committees generally deal with policies and programs that affect the whole enterprise and/or its various work places. The purpose of this requirement is to strengthen the internal responsibility system by encouraging dialogue between both parties until health and safety issues are resolved. The intent of this clause is to ensure that the employees are well informed of all hazards in the work place through their committees or representatives. The intent of this clause is to ensure that regular inspections of work places are performed. However, some work places are so large that it would be unreasonable to expect complete monthly inspections. It is left to the employer and the work place committee or the health and safety representative to establish their own monthly inspection schedule so that the entire work place is inspected annually. Where work activities require the use of personal protective equipment such as gloves, a smoke hood, etc. employers must consult the policy committee, if one exists, to develop, implement and monitor a program that will address the requirements of the work place.
6 125.(1)(z.14) take all reasonable care to ensure that all persons granted access to the work place, other than the employer s employees, are informed of every known or foreseeable health and safety hazard to which they are likely to be exposed in the work place. 125.(1)(z.15) meet with the health and safety representative as necessary to address health and safety matters. 125.(1)(z.16) take the prescribed steps to prevent and protect against violence in the work place. 125.(1)(z.17) post and keep posted, in a conspicuous place or places where they are likely to come to the attention of employees, the names, work place telephone numbers and work locations of all of the members of work place committees or of the health and safety representative. 125.(1)(z.18) provide, within thirty days after receiving a request or as soon as possible after that, the information requested from the employer by a This provision ensures that every person who enters the work place is informed of existing or potential hazards. This provision reiterates that the employer must keep in communication with the health and safety representatives, when required, in companies where there are no policy or work place committees. This requirement provides authority to make regulations to take the necessary action for ensuring that employees are protected from violence in the work place. This provision ensures that employees may easily contact a member of the work place committee or the health and safety representative. The employer is exempted from this paragraph if they control (a) a single work place where less than 20 employees are normally employed and all those employees and the H&S representative normally work at the same time and in the same location; or (b) a single work place where only one employee is normally employed. This provision requires that all matters related to occupational health and safety are dealt with expeditiously. policy committee by a work place committee...or by a health and safety representative... 125.(1)(z.19) consult with the work place committee or the health and safety representative on the implementation and monitoring of programs developed in consultation with the policy committee. Employers must involve, at a local level, work place committees or health and safety representatives in the implementation of programs that are developed in consultation with the policy committee.
7 4. Duties of Employees (section 126) Employees must ensure their own health and safety at work by using the safety materials that are provided by the employer, by following prescribed procedures and complying with instructions, by cooperating with committee members or health and safety representatives, etc. 5. Policy Health and Safety Committees (section 134) 126.(1) While at work, every employee shall (j) report to the employer any situation that the employee believes to be a contravention of this Part by the employer, another employee or any other person. 126.(3) No employee is personally liable for anything done or omitted to be done in good faith by the employee when the employee is assisting the employer, as requested by the employer, in providing first aid or in carrying out any other emergency measures. 134.1(1) For the purposes of addressing health and safety matters that apply to the work, undertaking or business of an employer, every employer who normally employs directly three hundred or more employees shall establish a policy committee... (2) An employer who normally employs directly more than twenty but fewer than three hundred employees also may establish a policy committee. (3) An employer may establish more than one policy committee with the agreement of (a) the trade union, if any, representing the employees, and (b) the employees, in the case of employees not represented by a trade union. Where employees only had to report hazardous situations to the employer under the former Code, they now have the legal obligation to report contraventions of the Code, of which they have knowledge, to their employer. This duty aims to increase the involvement of employees in the preventative aspect of health and safety in their work place. Employees are also protected from personal liability when assigned any role under the Code, such as first aid attendant or fire warden. One of the employer s additional duties is to establish a policy health and safety committee. As mentioned earlier, this committee must be established in companies that have 300 or more employees. It is formed at the corporate level to deal with health and safety matters for the well-being of the whole company. Nothing prevents a company with more than 20, but less than 300 employees, from establishing a policy committee. However, once established, they must adhere to this section of the Code. Large companies may also choose to establish more than one policy committee, for specialized groups of employees for example.
8 (4) A policy committee (a) shall participate in the development of health and safety policies and programs; (b) shall consider and expeditiously dispose of matters concerning health and safety raised by members of the committee or referred to it by a work place committee or a health and safety representative; (c) shall participate in the development and monitoring of a program for the prevention of hazards in the work place, that also provides for the education of employees in health and safety matters; (d) shall participate to the extent that it considers necessary in inquiries, investigations, studies and inspections pertaining to occupational health and safety; (e) shall participate in the development and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials; (f) shall cooperate with health and safety officers; (g) shall monitor data on work accidents, injuries and health hazards; and (h) shall participate in the planning of the implementation and in the implementation of changes that may affect occupational health and safety, including work processes and procedures. The policy committee s principal role is to participate in the development of health and safety policies and programs with the employer at the corporate level. Policy committees deal with corporate level issues as well as issues referred to it by a work place committee or health and safety representative. Policy committees participate in the development and monitoring of a prescribed program for the prevention of hazards in the work place, including the education of employees in health and safety matters. Policy committees have the authority to participate in inquiries, investigations, etc. Policy committees also participate in the development and monitoring of programs for the provision of personal protective material. In Transport Canada, Civil Aviation, health and safety officers are called Civil Aviation Safety Inspectors-Occupational Health and Safety or CASI-OH&S for short. Policy committees are required to monitor data regarding work accidents, injuries and health hazards relating to the work places they represent. Policy committees are required to participate in the planning of the implementation and implementation of changes in the work place. It is the employer s prerogative to initiate change. The change must have a health and safety dimension before the committee may participate.
9 6. Work Place Health and Safety Committees (section 135) (5) A policy committee may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment of activities in any of the employer s work places. (6) A policy committee shall have full access to all government and employer reports, studies and tests relating to the health and safety of the employees in the work place, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person s consent. (7) A policy committee shall meet during regular working hours at least quarterly and, if other meetings are required as a result of an emergency or other special circumstances, the committee shall meet as required during regular working hours or outside those hours. 135.(1) For the purposes of addressing health and safety matters that apply to individual work places,...every employer shall, for each work place controlled by the employer at which twenty or more employees are normally employed, establish a work place health and safety committee... Policy committees may request from the employer any information needed to identify hazards in the work place. The employer is obligated under the Code, in paragraph 125.(1)(z.18), to provide such information when it is requested. This clause gives the policy committee full access to all government and employer reports, studies and tests relating to health and safety again under paragraph 125.(1)(z.18). However, it cannot have access to the medical records of employees without the employee s consent. It is mandatory for policy committees to meet at least quarterly, and as required to deal with any urgent or special matters. Every work place with 20 or more employees is required to have a work place committee (formerly known as the safety and health committee). A company that has many work places where 20 or more employees work at one time, (as is the case of air operators who have multiple bases) must have a work place committee for each work place. This committee enjoys the same powers as the policy committee, when there is no policy committee, with some very important additions. Even though the aircraft is considered as the work place of aircrew, a work place committee does not have to be established. Aircrew (pilots and flight attendants mainly) may be represented in a work place committee at the operations base.
10 (7)(c) where the program referred to in paragraph 134.1(4)(c) does not cover certain hazards unique to a work place, shall participate in the development, implementation and monitoring of a program for the prevention of those hazards, that also provides for the education of employees in health and safety matters related to those hazards; (d) where there is no policy committee, shall participate in the development, implementation and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters related to those hazards; (e) shall participate in all of the inquiries, investigations, studies and inspections pertaining to the health and safety of the employees, including any consultations that may be necessary with persons who are professionally or technically qualified to advise the committee on those matters; (f) shall participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials and, where there is no policy committee, shall participate in the development of the program; (g) shall ensure that adequate records are maintained on work accidents, injuries and health hazards related to the health and safety of employees and regularly monitor data relating to those accidents, injuries and hazards. (h) shall cooperate with health and safety officers; (i) shall participate in the implementation of changes that may affect occupational health and safety, including work processes and procedures and where there is no policy committee, shall participate in the planning of the implementation of those changes; Work place committees are required to advise on the implementation and monitoring of prevention programs for hazards unique to their work places. The work place committee develops programs for activities unique to that specific work place. This duty is normally fulfilled by the policy committee, but in companies where there is no policy committee, the work place committee will assume the responsibility. Policy committees may choose to participate in inquiries, investigations, studies and inspections, but work place committees are required to do so. The work place committee participates in the implementation and monitoring of programs for the provision of personal protective equipment, clothing, devices or materials developed by the policy committee. However, when there is no policy committee, it will participate in the development of such programs. Work place committees do not maintain records but are required to ensure that the employer is keeping such records. Again in this context, we are referring to CASI-OH&S. Work place committees are to participate in the activities stipulated in this clause and carry out functions normally carried out by the policy committee where none exists, as mentioned earlier.
11 (j) shall assist the employer in investigating and assessing the exposure of employees to hazardous substances; (k) shall inspect each month all or part of the work place, so that every part of the work place is inspected at least once each year; and (l) where there is no policy committee, shall participate in the development of health and safety policies and programs. (8) A work place committee, in respect of the work place for which it is established may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities. (9) A work place committee, in respect of the work place for which it is established shall have full access to all government and employer reports, studies and tests relating to the health and safety of the employees, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person s consent. (10) A work place committee shall meet during regular working hours at least nine times a year at regular intervals and, if other meetings are required as a result of an emergency or other special circumstances, the committee shall meet as required during regular working hours or outside those hours. Work place committees are to help in the investigation and assessment of exposure of employees to hazardous substances. One of the work place committee s major additional duties is to inspect each month all or part of the work place so that every part of the work place is inspected at least once a year. The objective of these inspections is to ensure the health and safety of employees at all times. Since aircraft are also considered as work places pursuant to the Code, they are governed by this provision. Aviation companies with a large fleet of aircraft will need to establish an inspection schedule based on a risk assessment and the availability of resources. Again, where there is no policy committee, the work place committee will assume the responsibility of participating in the development of health and safety policies and programs. This is standard authority for identifying hazards specific to the work place. This provision gives work place committees full access to government and employer reports, studies and tests relating to the health and safety of employees represented by that committee. In the former Code, work place committees had to meet at least twelve times a year. The new requirement is to meet at least nine times a year at regular intervals. This offers more flexibility to companies whose operations slow down during a certain time of the year.
12 7. Health and Safety Representatives (section 136) 8. Internal Complaint Resolution Process (section 127.1) 136.(1) Every employer shall, for each work place controlled by the employer at which fewer than twenty employees are normally employed or for which an employer is not required to establish a work place committee, appoint the person...as the health and safety representative for that work place. (3) If a trade union fails to select a person..., a health and safety officer may so notify in writing the local branch of the trade union. The officer shall send a copy of the notification to the trade union s national or international headquarters and to the employer. (4) The employer shall perform the functions of the health and safety representative until a person is selected... Health and safety representatives are appointed in companies where there are fewer than 20 employees, or where an employer is not required to establish a work place committee (when an employer is exempted from the requirement to establish a committee). In the former Code, a representative had to be appointed in companies with 5 to 19 employees. Health and safety representatives are selected by the trade union or co-workers in work places where there is no union. If the employees or union fail or refuse to appoint a representative, a health and safety officer may notify the local branch of the problem in writing and must send a copy of the notification to the union s headquarters. This may trigger some effort on the part of the unions to appoint a representative or representatives for a work place committee. If the employees or union fail or refuse to appoint a representative, the employer must assume the responsibilities of the representative. Health and safety representatives enjoy the same powers as the members of a work place committee and work directly with the employer on health and safety matters. The internal complaint resolution process provides a mechanism for the work place parties to resolve complaints internally with little or no intervention from the health and safety officer (CASI- OH&S in Transport Canada, Civil Aviation). This is now a mandatory process and failing to follow it is considered a contravention.
13 127.1(1) An employee who believes on reasonable grounds that there has been a contravention of this Part or that there is likely to be an accident or injury to health arising out of, linked with or occurring in the course of employment shall, before exercising any recourse available under this Part, except the rights conferred by sections 128, 129 and 132, make a complaint to the employee s supervisor. (2) The employee and the supervisor shall try to resolve the complaint between themselves as soon as possible. (3) The employee or the supervisor may refer an unresolved complaint to a chairperson of the work place committee or to the health and safety representative to be investigated jointly (a) by an employee member and an employer member of the work place committee; or (b) by the health and safety representative and a person designated by the employer. (4) The persons who investigate the complaint shall inform the employee and the employer in writing, in the form and manner prescribed, if any is prescribed, of the results of the investigation. (5) The persons who investigate the complaint may make recommendations to the employer with respect to the situation that gave rise to the complaint, whether or not they conclude that the complaint is justified. (6) If the persons who investigate the complaint conclude that the complaint is justified, the employer, on being informed of the results of the investigation, shall in writing and without delay inform the persons who investigated the complaint of how and when the employer will resolve the matter, and the employer shall resolve the matter accordingly. This is the first step in the resolution of a complaint. The employee informs his or her supervisor of the contravention. The internal complaint resolution process does not apply to refusals to work (under sections 128 and 129) or to pregnant and nursing employees (under section 132). The first step will result in the supervisor correcting the contravention or will trigger the internal complaint resolution process. Once the process is in motion, committee members are appointed to investigate the unresolved complaint. The intent of this clause is to help increase the reliance on an internal responsibility system, as well as reduce the need for government intervention in the work place. The persons who are investigating the complaint must inform all parties of the results of their investigation. If a form has not been prescribed by regulation, any form is acceptable. Even though it is found that there is no contravention to the Code, employers may be recommended to remedy a situation that lead to the complaint. The employer is not obligated to adopt the recommendation but should be encouraged to give justifiable reasons for not adopting it. If it is revealed that there is a contravention to the Code, the employer must resolve the matter in a reasonable time frame.
14 (7) If the persons who investigate the complaint conclude that a danger exists as described in subsection 128(1), the employer shall, on receipt of written notice, ensure that no employee may use or operate the machine or thing, work in the place or perform the activity, that constituted the danger until the situation is rectified. (8) The employee or employer may refer a complaint that there has been a contravention of this Part to a health and safety officer in the following circumstances: (a) where the employer does not agree with the results of the investigation; (b) where the employer has failed to inform the persons who investigated the complaint of how and when the employer intends to resolve the matter or has failed to take action to resolve the matter; or (c) where the persons who investigated the complaint do not agree between themselves as to whether the complaint is justified. (9) The health and safety officer shall investigate, or cause another health and safety officer to investigate, the complaint referred to the officer under subsection (8). (10) On completion of the investigation, the health and safety officer (a) may issue directions to an employer or employee under subsection 145(1); (b) may, if in the officer s opinion it is appropriate, recommend that the employee and employer resolve the matter between themselves; or (c) shall, if the officer concludes that a danger exists as described in subsection 128(1), issue directions under subsection 145(2). In a case where the persons investigating the complaint observe a dangerous situation or determine that there could be potential danger, they have the authority to require that the employer stop the operation and not use the equipment until it has been repaired. Essentially, this amounts to lock out privileges being granted to the work place parties. If the employer disagrees, a health and safety officer may be notified, but the equipment must be locked out first. This provision clearly sets out the conditions in which a health and safety officer may be called in when the internal complaint resolution process has failed. The health and safety officer will investigate or have another health and safety officer investigate the matter. Once the health and safety officer has investigated the matter, he or she will take appropriate action. If the matter does not involve an infraction or a situation of danger, then it should be referred back to the work place parties to resolve.
15 9. Right to Refuse Dangerous Work (section 128) (11) For greater certainty, nothing in this section limits a health and safety officer s authority under section 145. 128.(1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that... (c) the performance of the activity by the employee constitutes a danger to the employee or to another employee. 128.(3) If an employee on a ship or an aircraft that is in operation has reasonable cause to believe that (c) the performance of an activity on the ship or aircraft by the employee constitutes a danger to the employee or to another employee, the employee shall immediately notify the person in charge of the ship or aircraft of the circumstances of the danger and the person in charge shall, as soon as is practicable after having been so notified, having regard to the safe operation of the ship or aircraft, decide whether the employee may discontinue the use or operation of the machine or thing or cease working in that place or performing that activity and shall inform the employee accordingly. This provision clarifies that a health and safety officer s power and duty to issue directions is not limited to the internal complaint resolution process. The most important change in the right to refuse dangerous work process is the addition of an internal process for resolving a continued refusal to work. Also, in addition to the operation of a machine or a condition, the performance of an activity that can constitute a danger is also taken into account. The refusal to perform an activity also applies on a ship or an aircraft.
16 128.(7)Where an employee makes a report under subsection (6) the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time, if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise. 128.(8) If the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it. 128.(9) If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative. 128.(10) An employer shall, immediately on being informed of the continued refusal under subsection (9), investigate the matter in the presence of the employee who reported it and of (a) at least one member of the work place committee who does not exercise management This provision applies to employees who have a collective agreement by which to resolve the refusal to work. If the collective agreement is chosen over the process stipulated in the Code, the employee cannot revert back to the Code unless the parties agree to it. The intent of this provision is to remedy potential dangers quickly and inform the work place committee or the health and safety representative of the action taken. The intent of this provision is to ensure that the subject of a refusal is resolved internally to the satisfaction of both parties. As long as the refusal process was followed from the beginning, the employee may continue to refuse to work under the Code. Subsections 128.(9) to 128.(12) describe the internal process for resolving a continued refusal to work. Paragraph (c) is a new provision that allows the employee who is continuing to refuse to work to choose another employee to investigate the matter with him or her and the employer if a committee member or health and safety representative is not available.
17 functions; (b) the health and safety representative; (c) if no person is available under paragraph (a) or (b), at least one person from the work place who is selected by the employee. 128.(11) If more than one employee has made a report of a similar nature under subsection (9), those employees may designate one employee from among themselves to be present at the investigation. 128.(12) An employer may proceed with an investigation in the absence of the employee who reported the matter if that employee or a person designated under subsection (11) chooses not to be present. 128.(13) If an employer disputes a matter reported under subsection (9) or takes steps to protect employees from the danger, and the employee has reasonable cause to believe that the danger continues to exist, the employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity. On being informed of the continued refusal, the employer shall notify a health and safety officer. 128.(14) An employer shall inform the work place committee or the health and safety representative of any steps taken by the employer under subsection (13). In cases where more than one employee refuses for a similar situation (not a group refusal), this provision allows one of the affected employees to participate in the investigation of a continued refusal on behalf of the group. The employer s investigation must not be delayed if the employee foregoes the opportunity to be present. This ensures the timely and effective investigation of reported dangers. If the process described in subsections 128.(9) to 128.(12) does not provide the desired results, and the affected employee still refuses to work, the employer will notify a health and safety officer. In the spirit of effective internal communication, the employer will inform the work place committee or the health and safety representative that a health and safety officer was notified.
18 128.1(1) Unless otherwise provided in a collective agreement or other agreement, employees who are affected by a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during the stoppage until work resumes or until the end of the scheduled work period or shift, whichever period is shorter. 128.1(2) Unless otherwise provided in a collective or other agreement, employees who are due to work on a scheduled work period or shift after a shift during which there has been stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during their work period or shift, unless they have been given one hour s notice not to attend work. 128.1(3) An employer may assign reasonable alternative work to employees who are deemed under subsection (1) or (2) to be at work. This deals with other employees who are affected by a work stoppage due to a refusal to work or a health and safety officer s direction to stop work. It requires that these employees continue to receive their wages and benefits until the refusal is settled, or until the end of their work shift, whichever is shorter. This is limited to one shift. In a refusal to work, employees of the next shift who cannot perform their work because of the refusal will be compensated as though they were working if they are already at work, unless they have been notified not to report to work at least one hour beforehand. This clause provides flexibility to the employer while the refusal to work is being investigated.
19 128.1(4) Unless otherwise provided in a collective agreement or other agreement, employees who are paid wages or benefits under subsection (1) or (2) may be required by the employer to repay those wages and benefits if it has been determined, after all avenues of redress have been exhausted by the employee who exercised rights under section 128 or 129, that the employee exercised those rights knowing that no circumstances existed that would warrant it. 129.(1) On being notified that an employee continues to refuse to use or operate a machine or thing, work in a place or perform an activity under subsection 128(13), the health and safety officer shall without delay investigate or cause another health and safety officer to investigate the matter in the presence of the employer, the employee and one other person who is (a) an employee member of the work place committee; (b) the health and safety representative; or (c) if a person mentioned in paragraph (a) or (b) is not available, another employee from the work place who is designated by the employee. 129.(2) If the investigation involves more than one employee, those employees may designate one employee from among themselves to be present at the investigation. Under this provision, employees affected by a work stoppage, resulting from another employee s refusal to work, may be required to repay wages and benefits paid during the stoppage, if it is determined the employee s refusal was knowingly unwarranted. When a health and safety officer is notified of a continued refusal to work that was not resolved internally, the officer will investigate the matter with the employer, the employee and an employee representative or another person selected by the employee. This measure resembles the process for resolving a continued refusal internally as described earlier. As seen earlier, in cases where more than one employee has refused to work in a similar situation, one employee may represent all the other employees in an investigation.
20 129.(3) A health and safety officer may proceed with an investigation in the absence of any person mentioned in subsection (1) or (2) if that person chooses not to be present. 129.(4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether the danger exists and shall immediately give written notification of the decision to the employer and the employee. 129.(5) Before the investigation and decision of a health and safety officer under this section, the employer may require that the employee concerned remain at a safe location near the place in respect of which the investigation is being made or assign the employee reasonable alternative work, and shall not assign any other employee to use or operate the machine or thing, to work in that place or to perform the activity referred to in subsection (1) unless (a) the other employee is qualified for the work; (b) the other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal; and (c) the employer is satisfied on reasonable grounds that the other employee will not be put in danger. Same situation as in subsection 128.(12). The investigation must not be delayed if one of the parties chooses not to be present. The health and safety officer must inform the employer and employee immediately of his or her decision. If the officer decides that a danger exists, a direction must be issued to the employer. If the officer decides that there is no danger, the employee must go back to work. The employer may decide to assign the employee who is refusing to work alternative work, or assign another employee to the refusing employee s work, if the other employee is aware of the refusal and the reasons surrounding the refusal, and if the other employee is qualified to perform the work safely.
21 10. Right of Redress (section 147.1) 129.(6) If a health and safety officer decides that the danger exists, the officer shall issue the directions under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are varied or rescinded under this Part. 129.(7) If a health and safety officer decides that the danger does not exist, the employee is not...to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision in writing to an appeals officer within ten days after receiving notice of the decision. 147.1(1) An employer may, after all the investigations and appeals have been exhausted by the employee who has exercised rights under sections 128 and 129 (right to refuse dangerous work), take disciplinary action against the employee who the employer can demonstrate has wilfully abused those rights. (2) The employer must provide the employee with written reasons for any disciplinary action within fifteen working days after receiving a request from the employee to do so. The only change in this provision is the addition of the performance of an activity that was addressed earlier. There is a significant change in the appeal process in cases of refusal to work. A request by an employee to appeal a decision of no danger rendered by a health and safety officer is now referred to an Appeals Officer (formerly the Regional Safety Officer). These cases are no longer referred to the Canadian Industrial Relations Board or the Public Service Staff Relations Board. An employer who believes that an employee wilfully abused the rights associated to a refusal to work may take disciplinary action against that employee when the employer can demonstrate that the employee abused the rights. The employee must be informed of the reasons for the disciplinary action within a reasonable time frame.