FAQ – Canada Labour Code, Part II changes

The Labour Program was asked these questions during consultations with Stakeholders. The Labour Program felt that providing the responses in a Question and Answer format would make it easier for employees and employers to understand the changes brought about to Part II of the Canada Labour Code.

1. What are the main amendments to Part II of the Canada Labour Code?

Most of the amendments to Part II of the Canada Labour Code (Code) relate to the refusal to work provisions. These amendments include: re-wording the definition of “danger” to make it easier for all parties to understand; requiring written investigation reports from both the employer and the Work Place Committee or Health and Safety Representative for unresolved refusals before these are reported to the Minister of Labour; and providing the Minister greater flexibility in how refusals are investigated.

The amendments also give the Minister of Labour authority to delegate the powers, duties and functions previously conferred on health and safety officers. Aside from increasing support to health and safety officers, this will have the added benefit of greater consistency in decision-making across the country.

2. Why did the Government of Canada amend Part II of the Canada Labour Code?

The amendments streamline processes in order to achieve better outcomes for businesses, workers and Canadians.

Over the past 10 years, the vast majority of refusals that health and safety officers investigated have ended with decisions of “no danger”, even after appeals. This suggests that the interpretation of “danger” was difficult for the work place parties to understand and apply as intended. Clarifying this definition ensures that work refusals are used only when employees are facing an imminent or serious threat to their life or health.

The amendments also reinforce the Internal Responsibility System by requiring the work place parties to formally and collaboratively investigate and address work place concerns. For refusals to work, workplace parties are required to conduct two internal investigations, and produce two written reports before the matter can be referred to the Labour Program. These requirements increase the likelihood of the work place parties resolving the refusal internally. For refusals that are not resolved internally, this will help the Labour Program more quickly understand the issues and render the appropriate decision.

Finally, the delegation of authorities will result in increased management support for health and safety officers. For instance, the new approach will provide health and safety officers additional guidance when making decisions and issuing directions that may have national implications under Part II of the Canada Labour Code.

This model of delegation is similar to the delegation of authorities in other programs across the public service such as the Privacy Act, Public Servants Disclosure Protection Act and the Transportation of Dangerous Goods Act.

3. Why was the definition of “danger” changed?

The previous definition of “danger” was difficult to understand and apply consistently. This difficulty contributed to decisions of “no danger” being rendered in approximately 80% of the refusals investigated by the Labour Program between 2003 and 2013. As a result, employers and employees often felt frustrated by the process.

Clarifying the definition of “danger” ensures that the refusal provisions are used only when employees have reasonable cause to believe that they are facing an imminent or serious threat to their life or health. Under the new definition of “danger”, employees retain their fundamental right to refuse dangerous work, while at the same time ensuring that the work refusal process is balanced and clear. Any employee concern that falls outside the interpretation of “danger” can still be addressed through the Internal Complaint Resolution Process and referred to the Labour Program, if necessary.

4. How do other occupational health and safety Canadian jurisdictions define “danger”?

Unlike the federal jurisdiction, most other jurisdictions do not define “danger”, or the equivalent term used in their legislation, such as “unusually dangerous”, “undue hazard”, “endanger”. In the absence of a prescribed definition, the common meaning of the word or term must be used. The new definition of “danger” brings its meaning more in line with the common understanding of the word and, therefore, closer to the terms used by other jurisdictions.

5. Under the new definition of “danger”, how will pregnant and nursing women be protected from dangerous work?

The amendments do not affect any of the rights granted to pregnant and nursing employees under section 132 of the Code. If a pregnant or nursing employee believes that any of her current job functions may pose a risk to her health, or the health of her child or fetus, she can cease to perform the job function until a qualified medical practitioner of her choice establishes whether the job function poses such a risk.

6. How will the amendments to the Code affect the rights and obligations of employers and employees?

The fundamental responsibility of the employer is to provide employees with a work place that is safe and healthy. This responsibility is not affected by the amendments to the Code. The most obvious new obligation is that, before a refusal can be referred to the Labour Program, separate investigations and written reports must be produced by the employer and the Work Place Health and Safety Committee / Representative. Under the previous Code, most refusals were resolved by work place parties before they came to the attention of the Labour Program. These changes will help work place parties to resolve even more refusals internally.

The amendments provide the Labour Program greater flexibility in how refusals are investigated. For example, the Labour Program may combine similar on-going refusals into a single investigation and decision or, they may decide on a new refusal by relying on the decision rendered in a previous and similar refusal. These amendments will allow the Labour Program to investigate refusals that have national implications more effectively.

7. Why would the Labour Program decline to investigate a work refusal?

Under the previous Code, all refusals were required to be investigated “without delay”, and the Labour Program did not have the discretion to decide not to investigate a refusal for any reason. Under the amended Code, the Labour Program may decide not to investigate a refusal if they believe that the refusal can be effectively dealt with under another Act, or where the refusal is trivial, frivolous, vexatious, or made in bad faith. By carefully exercising discretion on this issue, the Labour Program ensures that its resources are used as effectively as possible. Work place parties will also benefit, since they will be directed to the correct legislation that will most effectively apply to their work refusal, in cases where a decision has been made to not investigate.

8. Will employers and employees still have access to health and safety officers?

Yes. Although the term “health and safety officer” is no longer included in the Code, the position continues to exist within the Labour Program. In addition, health and safety officers have been delegated all of the enforcement powers they previously had, and will continue to be the primary contact point between the Labour Program and the work place parties. Health and safety officers will continue to be available 24/7 to respond to urgent situations that require immediate intervention, by calling 1-800-641-4049.

9. What information will be required on the Employer and Work Place Health and Safety Committee / Representative reports?

The Labour Program “Right to Refuse Dangerous Work” includes a link to a template that lays out the recommended format for work place parties to record information identified during a refusal to work investigation. This template: Workplace investigation reports on refusal to work is available in PDF format and has fields that can be filled, saved and printed. These reports identify the parties involved, clarify the reason for the refusal, and describe the two investigations and their findings. The reports also provide a chronology of the refusal. This information ensures that the matter has been fully investigated internally, and assists the Labour Program in any subsequent investigation.

10. When reporting a continued refusal, is the employer required to provide to the Labour Program the written decision that the employer provided to the employee under ss. 128(15) of the Code?

No. Unlike the requirement to provide the Labour Program a copy of the investigation report produced under ss. 128(7.1), the Code does not require the employer to provide the Labour Program a copy of the written decision it provided to the employee when reporting a continued refusal. However, the Labour Program may request a copy of this decision as part of its investigation.

11. When there are two separate but similar refusals, does the employer have to conduct two separate investigations and produce two separate reports?

Yes. Unlike the Labour Program, the employer cannot combine similar refusals, conduct a single investigation and render a single decision. The main reason for this is that the employer must investigate the refusal in the presence of the refusing employee (unless the employee chooses not to be present). In addition, the local work place health and safety committee / health and safety representative may also be required to investigate the matter if it is not resolved following the employer’s investigation. For these reasons, employers must still investigate each refusal separately and produce a separate report for each one, even if there are similarities between the refusals.

12. Can the employer rely on a previous refusal investigation if the employer believes the same issues are involved in the new refusal?

No. The employer is compelled to consider each refusal on its own merits; however, the employer can consider a previous refusal investigation when rendering a decision on the new refusal. The employer must still conduct a new investigation and produce a report on the new refusal.

13. What if the employer does not intend to conduct the investigation?

If the employer has not investigated, and does not intend to investigate the refusal, or to provide the Labour Program a copy of the Employer Report, a direction may be issued to the employer under ss. 145(1) of the Code, to cease contravening ss. 128.(7.1) and /or 128.(16). Until the employer complies with this direction and provides this report to the Labour Program, the Labour Program will not begin any assessment of the matter. In the meantime, the refusing employee may continue to refuse, and is protected against disciplinary action by the employer.

14. What if a refusal occurs after hours in a small workplace where the members of the Work Place Health and Safety Committee or Representative are not available? How will this situation delay the process?

It is the employer’s responsibility to ensure that the internal investigations by the employer and the work place health and safety committee / representative are completed within a reasonable timeframe. The Labour Program will not begin an assessment of the matter until these two investigations are completed and are provided the two reports.

15. If the refusing employee chooses not to be present during the investigation by the Work Place Health and Safety Committee / Representative, are these investigations still required to be conducted in the presence of the employer representative?

Yes. If the refusing employee chooses not to be present during the investigation by the work place health and safety committee / representative, these investigations must still be conducted in the presence of the employer representative.

16. Does the refusing employee receive a copy of the Employer Report and the Work Place Health and Safety Committee / Representative Report?

No. The Code does not require copies of these reports to be provided to the refusing employee, but the investigators may provide the employee a copy if they wish.

17. If the Labour Program decides not to investigate the refusal, is there an appeal process?

There is no prescribed process under the Code to appeal a Labour Program decision not to investigate a refusal. Any party wishing to appeal such a decision may request a judicial review in Federal Court, within 30 days of communication of the decision.

18. If an employee refuses to work, can the employer immediately assign a different employee to perform the work?

No. As per ss. 129(5), an employer can only assign a different employee to perform the refused work after the employer and the work place health and safety committee / representative have completed their internal investigations and provided their written reports to each other, and after the employer has reported the continued refusal to the Labour Program. In addition, the employer must ensure that any employee assigned to the refused work is qualified to perform the work, has been advised of the continued refusal, and will not be put in danger.

19. Can the same person represent the employer in both the employer investigation and the Work Place Health and Safety Committee investigation?

To allow for an unbiased investigation by the Work Place Health and Safety Committee, the person representing the employer on the Committee should not be the same person who conducted the original employer investigation.