Participation of the Work Place Health and Safety Committee or Representative – 935-1-IPG-004

Effective Date: October, 2014

1. Subject

The "right to participate" obligation contained in Sections 135 and 136 of the Canada Labour Code, Part II (Code).

2. Issue

The Labour Program of Employment and Social Development Canada (ESDC) has been asked on several occasions to provide guidance and clarification on the participation of the workplace health and safety committee (the Committee) or the health and safety representative (Representative).

Further, as of October 31, 2014, an additional responsibility for the Committee and Representative was added to the refusal to work process under Section 128, where the Committee or the Representative is required to investigate refusals to work when the employee disagrees with the outcome of the employer’s decision.

3. Question

What does the phrase "shall participate" as found in subsections 135(7) and 136(5) of the Code mean?

4. Interpretation

The term "shall participate" stated in subsections 135(7) and 136(5) of the Code requires the Committee or the Representative to be actively involved from the beginning to the completion of each of the activities identified in the following provisions:

  • paragraphs 135(7)(b) and (c), and 136(5)(d) and (e) of the Code:  Participate in the implementation and monitoring of programs for the prevention of work place hazards;
  • paragraphs 135(7)(d) and 136(5)(f) of the Code:  Participate in the development, implementation and monitoring of programs to prevent work place hazards if there is no policy committee in the organization;
  • paragraphs 135(7)(e) and 136(5)(g) of the Code:  Participate in all of the inquiries, investigations, studies, and inspections pertaining to the health and safety of employees;
  • paragraphs 135(7)(f) and 136(5)(m) of the Code:  Participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices, or materials, and, if there is no policy committee, participate in the development of the program;
  • paragraphs 135(7)(i) and 136(5)(i) of the Code:  Participate in the implementation of changes that may affect occupational health and safety, including work processes and procedures, and, if there is no policy committee, participate in the planning of the implementation of those changes;
  • paragraph 135(7)(l) of the Code:  Participate in the development of health and safety policies; and
  • programs, if there is no policy committee and paragraph 136(5)(k) of the Code:  Participate in the development of health and safety policies and programs.

Interpretation of "shall participate"

The term “shall participate” means that participation is mandatory.

The communication between employees and employers to co-operatively identify and solve occupational health and safety issues is the core of the Internal Responsibility System (IRS).

To participate is to be actively involved from the beginning to the completion of each of the activities where participation by the Committee or Representative is required by the Code. This participation includes meaningful consultation by the employer and effective communication between the employer and the Committee or Representative for the purpose of seeking advice or feedback. For example, by actively participating in the process of creating a hazard prevention program, the Committee or Representatives is supporting and facilitating the identification and assessment of work place hazards and that employees are protected against these hazards. The Committee or Representative participation may be through meetings, emails, phone call, or in person. The advice and feedback provided by the Committee or Representative will contribute to an efficient and complete hazard prevention program.

Participation of the Committee and Representative in investigations, studies, inquiries and inspections

Although the employer usually has the responsibility for conducting investigations, there is a mandatory obligation on the Committee or the Representative to take part and to be actively involved from the beginning to the completion of all investigations, studies, inquiries and inspections. This includes the meaningful discussion for the purpose of seeking advice by the employer or feedback provided by the Committee or Representative. In addition, the Committee or the Representative participation may include any necessary consultations with persons who are professionally or technically qualified who could advise the Committee or Representative on matters related to their responsibilities.

This consultation does not mean the Committee or Representative may hire consultants (although this is not prohibited), but that they may seek advice from persons who are professionally or technically qualified.

Impact of amendments to section 128 of the Code

The amendments to section 128 of the Code, which came into force on October 31, 2014, govern the Committee’s and the Representative’s role in refusal to work situations. Pursuant to subsection 128(10) of the Code (refer to section 128 of the Code for the entire refusal to work process), if the Committee or Representative receives notification from an employee of their continued refusal to work under subsection 128(9) of the Code, the Committee or Representative must investigate the matter immediately. In other words, this duty goes beyond participation, as the Committee or Representative is responsible for conducting an entire investigation into a refusal to work when the employee disagrees with the outcome of the employer’s decision.

Regulatory Responsibilities

The responsibility to investigate during a refusal to work situation and participation in investigations, inquiries, studies and inspections is set out in various provisions of the Code and in the Canada Occupational Health and Safety Regulations (COHSR) including:

  • The Code:
    1. Subsections 128(10), (10.1), and (10.2):  The Committee (at least half are employee members) or Representative is to investigate with the employee who is not satisfied with the employer's decision and continues to refuse to work;
    2. Subsection 128(14):  The employer is to notify the Committee or Representative of the actions taken to protect employees from the agreed upon danger;
    3. Subsection 128(16):  The employer is to immediately notify the Committee or Representative of its decision and the continued refusal to work by the employee;
    4. Subsection 129(1.1):  The Committee or Representative is to be notified by the employer in writing of the Minister's decision not to investigate the continued refusal to work.
  • COHSR:
    The employer is to notify the Committee or Representative of:
    1. any hazardous occurrence investigation (Section 15.4), of any proposed hazard investigation and name of the qualified person appointed to carry out that investigation in the case of possible exposure to a dangerous substance (Section 10.4);
    2. the preparation of an emergency evacuation plan of the work place as well as the preparation of emergency procedures (Sections 17.4 and 17.5);
    3. the developing, implementing, and monitoring a program for the prevention of hazards (where there is no policy committee) (Section 19.1);
    4. the employer's obligations for violence prevention in the work place (Section 20.1) (where there is no policy committee) and for providing a copy of the completed competent person investigation report (Section 20.9).
  • The Committee's procedures for participation:

    In establishing procedures for its operation, the Committee should consider:

    1. How the Committee will participate in investigations, studies, inquiries and inspections?
    2. Where participation by the Committee is required by the Code, who will participate? – one or more members of the Committee or someone delegated by the Committee?
      If one member is designated, it must be an employee member, otherwise at least half of the members must be employee members.
    3. How will participation be carried out when long distances are involved?
    The involvement of the Committee could be through various means of communication such as face to face (preferred), telephone, video conference, and email. There is also the possibility of assigning the responsibility to investigate to a qualified person who is on site and who will act on behalf of the Committee.

  • The Committee must remember their duties under the Code and make every attempt to come to a consensus regarding procedural/administrative issues. For situations where an employee (including an employee committee member) believes a procedural / administrative practice of the Committee is a contravention of the Code, the employee may initiate the Internal Complaint Resolution Process (Section 127.1 of the Code) to have this matter addressed. This process would involve initially raising the matter with the Committee to try to resolve it, similar to what is required under subsection 127.1(2) of the Code. However, if the matter is not resolved at this level, the employee may request that a formal investigation be conducted by two investigators appointed by the Committee Co-chairs as per subsection 127.1(3) of the Code.

Note

For general information on the Internal Complaint Resolution Process, refer to the Labour Program Pamphlet 3 entitled "Internal Complaint Resolution Process"

For general information on the Committee and Representative, refer to the Labour Program's Pamphlet 6B "Work Place Health and Safety Committees" and Pamphlet 6C "Health and Safety Representatives".

Brenda Baxter
Director General
Workplace Directorate
Employment and Social Development Canada – Labour Program