Amendments to Federal Health and Safety Regime in Force October 31, 2014
Date: October 29, 2014
Important amendments to the health and safety regime in Part II of the Canada Labour Code (the “Code“), contained in the Economic Action Plan 2013 Act No. 2 (the “Act“), come into force on October 31, 2014. Among other things, the Act will amend the definition of danger which is central to the right of employees to refuse unsafe work, change the process through which work refusals are handled, and transfer the statutory authority of the Health and Safety Officers, who currently investigate work refusals, to the federal Minister of Labour.
In this FTR Now, we provide an overview of these amendments and discuss the implications for federally-regulated employers.
A NEW NARROWER DEFINITION OF DANGER
Part II of the Code provides employees with the right to refuse to work if there is reasonable cause to believe that work equipment, conditions, or tasks constitute a danger to the employee, or in the case of equipment or tasks, constitute a danger to another employee. The definition of danger is central to understanding the scope of the right to refuse unsafe work.
Danger is currently defined to include:
[…] 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.
The amendments in the Act will replace this broad definition of danger with a narrower definition which provides that a hazard, condition or activity must be an imminent or serious threat to health or safety before it will constitute a danger. Specifically, the 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.
This new definition inserts an immediacy and materiality threshold into the analysis of what constitutes a danger. It also removes references to chronic illness, disease, or damage to the reproductive system. This will limit the right to refuse situations where danger is an imminent or serious threat to life and excludes chronic illness, disease, or damage to the reproductive systems that does not meet these immediacy and materiality thresholds.
These changes have been criticized by organized labour as a dangerous roll-back in the right to refuse dangerous work. When the right to refuse work was added to Part II of the Code, it was qualified by a requirement that there be “imminent danger” before a work refusal would be justified. This limited the right to refuse to situations where the danger was looming or about to occur. The word imminent was removed and a definition of danger added to the Code in the 1980s. The definition of danger was broadened in the early 2000s to include any future activity that could cause illness or injury. In this sense, it may appear that the government is reverting to a more restrictive interpretation of what constitutes a danger.
However, the Minister of Labour has responded to this criticism by revealing that in the ten year period following the broadening of the definition of danger, more than 80% of work refusals have resulted in findings that there was no danger even after appeals. This suggests that the majority of work refusals are not made in truly dangerous circumstances, and that limiting the definition of danger may not unduly impact worker safety. Therefore, changing the definition of danger to limit the number of unjustified work refusals should give Health and Safety Officers more time for proactive workplace inspections and thereby enhance workplace safety.
A NEW PROCESS FOR WORK REFUSALS
In addition to amending the definition of danger and thereby limiting the circumstance in which an employee will be justified in refusing work, the Act changes the manner in which work refusals are processed.
Currently, where an employee exercises his or her right to refuse under the Code, and the employer disagrees about whether there is a danger, the employee may continue the refusal and report the matter to the employer and to the workplace committee or the health and safety representative, depending on the size of the workplace. The employer must then investigate in the presence of the employee and a representative from the workplace committee or the health and safety representative. If, despite the investigation and any steps the employer may take, the employee continues to refuse to work, the matter is reported to a Health and Safety Officer. The Health and Safety Officer investigates the work refusal, makes a determination about the presence of danger, and if necessary, issues directions about remedial steps that must be taken.
Under the newly amended work refusal process, employers will be required to prepare a written report if an employee continues to refuse after being informed that the employer does not agree about the presence of danger. If the matter is not resolved following the employer’s investigation and the written report, the employee may continue the work refusal and report the circumstances to the employer and to the workplace committee or the health and safety representative. The workplace committee or health and safety representative is then required to conduct an investigation, and prepare a written report to the employer setting out the results of the investigation and any recommendations. The employer must review the results of the investigation, and may request reconsideration and provide the investigators with additional information to take into account.
The employer must then decide whether danger exists such that it will take action to resolve it or whether there is no danger. If the employer decides that there is danger, the employer must resolve it and inform the workplace committee or health and safety representative of the actions taken to resolve it. If the employer finds that there is no danger, the employer must inform the employee who may continue to refuse to work, at which point the employer must report the work refusal to the Minister and not to a Health and Safety Officer, as was previously done. The employer must also give the written reports from the internal investigations to the Minister.
The Minister is required to investigate the work refusal unless the matter is trivial, frivolous or vexatious, made in bad faith, or could be resolved internally between the employee and employer or under the procedures under another Act of Parliament. If the Minister elects not to investigate, he or she will notify the employer, who in turn must notify the employee, and the workplace committee or the health and safety representative, and the employee is no longer entitled to continue to refuse. If the Minister elects to investigate the work refusal, the employee may continue to refuse work until the Minister issues a decision and directions.
These amendments create additional steps in the work refusal process and may represent a positive development in occupational health and safety. By requiring employers and the workplace committee or health and safety representatives to prepare written investigation reports, the circumstances giving rise to the refusal may be investigated more thoroughly. The written reports will also assist the Minister in investigating continuing work refusals, and fashioning appropriate directions to resolve dangerous situations. This should streamline the review of work refusals by the Minister and will hopefully lead to decisions being issued more quickly.
TRANSFER OF STATUTORY AUTHORITY FROM HEALTH AND SAFETY OFFICERS TO THE MINISTER
The amendments in the Act will also replace references to Health and Safety Officers in Part II of the Code with references to the Minister of Labour thereby transferring all statutory rights, obligations, and powers from Health and Safety Officers to the Minister.
This has been criticized by organized labour as a removal of the important role of Health and Safety Officers. However, the Code provides that the Minister may delegate certain rights, obligations, and powers to qualified persons, and it appears likely that the Minister will do so. It is unclear whether the Minister plans to delegate her duties to the current Health and Safety Officers, but this seems likely given their expertise under Part II of the Code. If this is done, it should have little practical effect on health and safety.
The net practical effect of the amendments on workplace health and safety should be minimal or even mildly positive. The critical response of organized labour may relate more to the manner in which the amendments were tabled than their effect on workplace health and safety. The amendments were contained in omnibus legislation, and received limited consideration during the legislative process. This approach was very different from the tripartite collaboration between employers, unions and government that went into developing much of the content of Part II of the Code, and may explain the reaction to the amendments by organized labour.
In preparation for the coming into force of these amendments, federally-regulated employers should familiarize themselves with the new definition of danger and the new work refusal process. After the amendments come into force on October 31, 2014, federally-regulated employers should amend their work refusal practices to align with the amended process and work with their workplace committees or health and safety representatives to implement the new process and educate employees about the changes.
If you have any questions about or would like assistance preparing your organization for the new amendments, please contact Shane D. Todd at 416.864.7026 or any member of Hicks Morley’s Occupational Health group.
 Treasury Board of Canada Secretariat, “Manager’s Handbook Canada Labour Code, Part II” (10 June 2013) online: <http://www.tbs-sct.gc.ca/hr-rh/osh-sst/clc-cct/clc-cct05-eng.asp>
 Carmelle Wolfson, “Feds proposed broad change to labour code”, OHS Canada (4 November 2013) online: <http://www.ohscanada.com/transportation-2/feds-propose-broad-changes-to-labour-code/1002697167/>.
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