Canadian Occupational Safety

February/March 2015 11 Changes to Canada Labour Code impact right to refuse dangerous work More onus also placed on employers to investigate work refusals K ey amendments to the Canada Labour Code came into effect on Oct. 31. The amendments change the defi nition of "danger" and impose greater obligations for workplace parties when an employee exercises the right to refuse dangerous work. DANGER REDEFINED Prior to the most recent change, the code defi ned danger as "any existing or potential hazard or con- dition 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 condi- tion 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 federal government determined this defi ni- tion was unclear and a source of confusion. In the last 10 years, about 80 per cent of work refusals investigated by the Labour Program resulted in fi nd- ings of "no danger." Its response was to streamline the defi nition of danger to "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." Key to the revision was the removal of 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 that included risks of future harm arising from the hazard, condition or activity. This may mean an employee's right to refuse work has been restricted so that it does not include the right to refuse on the basis of anticipated or potential risk. This could have implications for situa- tions that may present a risk to future health, such as the exposure to hazard- ous substances. ENHANCED RESPONSIBILITIES FOR WORK REFUSALS The amendments introduced signifi cant changes to the procedure for respond- ing to a work refusal. The changes place greater emphasis on the internal respon- sibility system by removing the role of a health and safety offi cer and mandating that two workplace investigations of a work refusal be performed before refer- ring the matter to the minister of labour (as represented by the Labour Program). When presented with a work refusal, the employer is required to conduct an immediate investigation in the presence of the refusing employee and prepare a written report. The report should include the basis for the work refusal, a descrip- tion of the employer's investigation, the factors considered and the reason for the employ- er's decision that there is a danger or not — or the determination that the work refusal is not permit- ted under the Canada Labour 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. If the work refusal is not resolved following the employer's investigation, an investigation by the joint health and safety committee (JHSC) or rep- resentative must be conducted. An investigation by the committee must involve one representative from management and one who represents employees and a written report must be produced. The JHSC investigation is to be provided to the employer and, notably, the employer can provide supplemental information to the investigator. If this second investigation does not resolve the work refusal, the matter is referred to the Labour Program. The referral to the minister highlights another important change to the code. Prior to the Oct. 31 amendments, all work refusals were to be inves- tigated "without delay," meaning there was no discretion to decide not to investigate. However, the amendments now provide 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 triv- ial, 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, the refusing worker and the JHSC. If the assessment results in a direction being issued to the employer, then the employer, employee or 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, 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 within 30 days. In light of these amendments to the code, federally regulated employers should be reviewing their work refusal programs for consistency with the revised defi nition of "danger" and ensuring those who could be involved in responding to a work refusal have been trained on the changes to the code, including the updated defi nition of "danger" and procedural requirements for the internal investigations and reports. Employers should develop template or prece- dent report forms and ensure they are made available to supervisors, managers and the JHSC. Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (416) 777-8284 or jwarning@ mathewsdinsdale.com. Loretta Bouwmeester is a partner in Mathews Dinsdale & Clark's OHS and workers' compensation practices in Calgary. She can be reached at lbouwmeester@mathewsdinsdale.com or (403) 538-5042. 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