by Jeremy Warning
Although decried by organized labour, key amendments to Part II of the Canada Labour Code (the Code) came into effect on Oct. 31, 2014. These amendments change the definition of “danger” in the Code and provide expanded obligations for the workplace parties when an employee exercises the right to refuse dangerous work. Organized labour been vocal in its position that redefining the term “danger” will diminish health and safety in federally regulated workplaces. The Canadian government has explained that change was motivated by the need for clarity in the definition. The government has noted that, in the 10-year period from 2003 to 2013, approximately 80 percent of work refusals investigated by the Labour Program resulted in findings of “no danger” — a statistic that includes decisions that were appealed.
Process changes criticized
Organized labour has also been critical of the change to the work refusal process because it removes reference to health and safety officers and provides the Labour Program with the discretion not to investigate a work refusal. The federal government has explained that the changes to the work refusal process are designed to engage the internal responsibility system more completely which, it is anticipated, will result the resolution of a greater number of work refusals without the need for involvement by the Labour Program. Regardless of how the changes are viewed, it is clear that the changes to the process around work refusals are significant and will require action by employers to ensure compliance.
In this article we discuss and comment on the nature of the changes in substance and process to the right to refuse work under the Code.
Definition changed twice
Since 1984, the Code has contained a definition of “danger.” The definition has been changed on two occasions: the first in 2000 and the latest on Oct. 31, 2014. Prior to the most recent change, the Code defined “danger” as:
- 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 noted above, the federal government determined that this definition was unclear and a source of confusion. The remedy was to streamline the definition of “danger” such that, on and after Oct. 31, 2014, it 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
The revised definition is similar, but not identical to, the definition of danger that existed prior to 2000. Notably, the revision removed the words “existing or potential” and “current or future” that had been used to describe the nature of the hazard, condition or activity constituting a danger. The revision has also removed wording which included risks of future harm arising from the hazard, condition or activity. The upshot is that it may be that an employee’s right to refuse work has been restricted such that it does not include the right to refuse on the basis of anticipated or potential risk. This could have implications for circumstances that present a risk to future health such as the exposure to hazardous substances. Indeed, prior to the 2000 amendments, “danger” was interpreted to be an emergency measure to address an immediate health and safety risk.
Interpretation of terms
With regard to the Code, the definition of danger therein establishes that, for a danger to exist, there must be a reasonable expectation that the hazard or condition will cause injury or illness to the person exposed thereto before the hazard or condition can be corrected. […]. The […] right to refuse is an emergency measure where the danger perceived is immediate, as opposed to future or anticipated, […]. Canada Post Corporation v. C.U.P.W. (Sept. 19, 2000), Dec. No. 00-016 at p. 5 (O.H.S.T.C.).
The revised wording does suggest that a “danger”, for the purposes of the Code, is an immediate hazard or risk. Interpreting “danger” in that manner is consistent with the Interpretation, Policy and Guideline (IPG) about the term “danger”, which is meant to guide the interpretation and application of certain provisions of the Code. The IPG indicates that an “imminent threat” is one that is “on the point of happening”. The IPG also sets out that a “serious threat” means “a substantial threat to health or life [which includes injury and illness] and includes potential substantial threat”. There is no elaboration on the meaning of “substantial”. It, therefore, remains to be seen precisely how these terms will be interpreted and applied and whether the right to refuse work has been truncated as suggested by organized labour.
Enhanced workplace responsibilities
In addition to a potential substantive change to the right to refuse work, the amendments introduced significant changes to the procedure for responding to a work refusal. The changes place greater emphasis on the internal responsibility system by removing the role of a health and safety officer and mandating that two workplace investigations of a work refusal be performed before referring the matter to the Minister of Labour (as represented by the Labour Program). The amendments also provide the Labour Program with the discretion to determine whether it will investigate a particular work refusal.
Upon the exercise of a work refusal, the employer is required to conduct an immediate investigation in the presence of the refusing employee. At the conclusion of its investigation the employer is required to prepare a written report. The Code does not prescribe a particular form or style of the written report. However, a template for the report is available online and requires information on matters including the basis for the work refusal, a description of the employer’s investigation, the factors considered, and the reason for the employer’s decision that there is a “danger”, there is no “danger”, or the work refusal is not permitted under the Code (because it puts the life, health or safety of another person directly in danger or the alleged danger is a normal condition of employment).
Workplace committee involvement
If the work refusal is not resolved following the employer’s investigation, an investigation by the workplace committee or health and safety representative must be conducted. An investigation by a workplace committee must involve one representative from management and one who represents employees. Like the employer’s investigation, a written report must be created following the investigation. Again, no specific form is prescribed and a precedent is available online. The precedent suggests that the written report should detail the nature of the investigation, the factors considered, and the reason for the decision. However, it also provides for recommendations to the employer.
The workplace committee/health and safety representative investigation is to be provided to the employer and, notably, the employer can provide supplemental information to the investigator(s). The investigator(s) may issue a revised report after considering the supplemental information. If this second investigation does not resolve the work refusal, then the matter is referred to the Labour Program. Importantly, if the employer and committee/representative reports have not been completed, the Labour Program will not begin its assessment.
Changes provide new discretion
The referral to the Minister highlights another important change to the Code. Prior to the Oct. 31, 2014, amendments, all work refusals were to be investigated “without delay”, meaning there was no discretion to decide not to investigate. However, the amendments now provide a discretion such that the Labour Program may decide not to investigate a work refusal if the refusal can be effectively dealt with under another Act, or where the refusal is trivial, frivolous, vexatious, or made in bad faith. If the Labour Program does not investigate the refusal, the employee cannot continue the work refusal and must return to work.
Following its assessment of the matter, the Labour Program will resolve the work refusal with a written report to the employer, refusing worker, and the work place committee/health and safety representative. If the assessment results in a direction being issued to the employer, the employer, employee or trade union may appeal that decision within 30 days. If the assessment of the Labour Program is that no danger exists or the work refusal is not permitted, then an employee has 10 days to appeal that decision. If the Labour Program does not investigate the work refusal, the refusing employee may seek judicial review of that decision but must do so within 30 days of receiving the decision.
Steps for employers
In light of these amendments to the Code, federally regulated employers should be reviewing their work refusal programs for consistency with the revised definition of “danger” and ensuring that those who could be involved in responding to a work refusal have been instructed on the changes to the Code. This should include the updated definition of “danger” and the updated procedural requirements for the internal investigations and reports. It is also advisable that employers develop template or precedent report forms and ensure that they are made available to supervisors, managers and the work place committee/health and safety representative so that they are available if and when needed.
Jeremy Warning practices occupational health and safety, employment and labour law with Mathews, Dinsdale & Clark LLP in Toronto.