NIAGARA FALLS, Ont. – The federal government wants to be more efficient and spend less money ensuring workplaces are safe.
On October 31, 2014 amendments to the Canada Labour Code Part II took effect. These changes were initially introduced by the government in the 2013 Economic Action Plan. Kathy Salmon, who is the manager of the southwest district for Employment and Social Development Canada (ESDC) attended the Fleet Safety Council’s 23 Annual Education Conference, which was held in Niagara Falls, Ont., to brief attendees about the updates and explain the reasoning behind them.
“The work refusal process has been updated to reinforce the internal responsibility system which is the cornerstone of the Canada Labour Code Part 2. We are hoping the residual effects of that will cost us less money to enforce the Canada Labour Code and take care of these work refusals and hopefully it will reduce the tax burden,” said Salmon, adding that “the means of conducting inspections of the workplace has been modified to allow for investigations without visiting the workplace either by electronic means or by telephone.”
But before any health and safety inspectors begin looking at any business, the company must first take its own actions to rectify any workplace situation that has been cited by an employee as being dangerous.
“Now danger means 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. Some people had a little bit of trouble with this definition when it first came out because they thought it was a little too simplistic. The new definition is going to continue to provide protection from all hazards, whether the impact is going to be immediate, such if somebody is not wearing fall protection or whether it will be over a long term, such as if somebody is exposed to asbestos and they are going to get a long-term illness from that, it will still cover those eventualities,” said Salmon.
Once an employee makes a report to an employer that the workplace situation is dangerous and he or she is refusing to participate in working activities because of the danger, then the employer is forced to take the next step.
“The new process will allow for two internal investigations to take place. One will be by the employer and one by the workplace health and safety committee or health and safety rep. The employee is allowed to participate in either process. We are building on the internal responsibility system. What our department wants and what the government of Canada wants is for workplaces to work out their own issues,” she explained.
The employer must look into the situation and prepare a report about what danger (if any) exists and what (if anything) will be done to rectify the situation. If that that doesn’t resolve the issue, then the company’s health and safety committee or health and safety representative is required to conduct an independent investigation and issue a report based on the findings.
After that, if there is still no resolution of the issue, the employer must make one of the following three decisions:
There is a danger and immediate actions must be taken
A danger exists, but the refusal to work is not permitted as that action will put others in danger or that the danger is just a normal condition of the work
There is no danger.
“If the employee disagrees with the employer’s decisions, the employer has to notify the regulator and provide the two reports to the regulator. And the right to refuse work again continues,” said Salmon. “The regulator will come in and see there is a continued refusal to work going on. They are going to decide whether or not to investigate.”
If the investigator determines the refusal to work was made because of trivial, frivolous or vexatious reasons or it was uttered in bad faith (i.e. during a labour negotiation) the investigation will not proceed. If it is determined that a different agency—for example a human rights tribunal—could best handle the complaint, there will be no investigation.
“There are no appeal rights to this portion. If either the employer or the employee don’t agree, they make an application for judicial review under the Federal Courts Act,” explained Salmon.
“Once the regulator determines they will do an investigation, a delegated official will be assigned. It could health and safety officer, or it could be somebody else that’s qualified.”
According to Salmon, one of the amendments allowed the minister to delegate full investigated authority to people who aren’t trained health and safety officers.
“The health and safety officers were actually quite worried when this legislation came out because we hadn’t had a heads up at all. They were nervous they were going to lose their jobs if we didn’t need health and safety officers anymore,” she said.
“There are lots of organizations and people throughout the country that can also be trained to be delegates of the minister, learn the training the health and safety officers learn, and then it maybe it won’t be necessary for us to have as many people up in the Great White North. It might be for a particular issue or circumstance where a certain expertise is required that we will be using other people other than actual employees of the program. All of that has not been entirely flushed out yet, but as we learn more, we will know how it will work a little bit better.”
No matter who is delegated to investigate, that person will have the responsibility to issue a finding of danger being present or no danger being present.
“If either party disagrees with the determination, they may submit an appeal to the occupational health and safety tribunal for review. That is the same as before.”
Along with changes to the investigative process, there are other new aspects into dealing with work refusals introduced by the amendments. Now work refusals can be grouped and handled as a single case if they involve similar complaints about the same organization.
She added that businesses should be aware that there have been changes to the Part III, as well which deals with Labour Standards.