Advisory Circulars

Commercial & Business Aviation

OVERVIEW OF THE AMENDMENTS TO
PART II OF THE CANADA LABOUR CODE

Subject:  9. Right to Refuse Dangerous Work (section 128)

AMENDED CODE EXPLANATION/APPLICATION
128.(1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that...
(c) the performance of the activity by the employee constitutes a danger to the employee or to another employee.
The most important change in the right to refuse dangerous work process is the addition of an internal process for resolving a continued refusal to work. Also, in addition to the operation of a machine or a condition, the "performance of an activity" that can constitute a danger is also taken into account.
128.(3) If an employee on a ship or an aircraft that is in operation has reasonable cause to believe that.
(c) the performance of an activity on the ship or aircraft by the employee constitutes a danger to the employee or to another employee, the employee shall immediately notify the person in charge of the ship or aircraft of the circumstances of the danger and the person in charge shall, as soon as is practicable after having been so notified, having regard to the safe operation of the ship or aircraft, decide whether the employee may discontinue the use or operation of the machine or thing or cease working in that place or performing that activity and shall inform the employee accordingly.
The refusal to perform an activity also applies on a ship or an aircraft.
128.(7)Where an employee makes a report under subsection (6) the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time, if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise. This provision applies to employees who have a collective agreement by which to resolve the refusal to work. If the collective agreement is chosen over the process stipulated in the Code, the employee cannot revert back to the Code unless the parties agree to it.
128.(8) If the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it. The intent of this provision is to remedy potential dangers quickly and inform the work place committee or the health and safety representative of the action taken.
128.(9) If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative. The intent of this provision is to ensure that the subject of a refusal is resolved internally to the satisfaction of both parties. As long as the refusal process was followed from the beginning, the employee may continue to refuse to work under the Code. Subsections 128.(9) to 128.(12) describe the internal process for resolving a continued refusal to work.
128.(10) An employer shall, immediately on being informed of the continued refusal under subsection (9), investigate the matter in the presence of the employee who reported it and of
(a) at least one member of the work place committee who does not exercise management functions;
(b) the health and safety representative;
(c) if no person is available under paragraph (a) or (b), at least one person from the work place who is selected by the employee.
Paragraph (c) is a new provision that allows the employee who is continuing to refuse to work to choose another employee to investigate the matter with him or her and the employer if a committee member or health and safety representative is not available.
128.(11) If more than one employee has made a report of a similar nature under subsection (9), those employees may designate one employee from among themselves to be present at the investigation. In cases where more than one employee refuses for a similar situation (not a group refusal), this provision allows one of the affected employees to participate in the investigation of a continued refusal on behalf of the group.
128.(12) An employer may proceed with an investigation in the absence of the employee who reported the matter if that employee or a person designated under subsection (11) chooses not to be present. The employer's investigation must not be delayed if the employee foregoes the opportunity to be present. This ensures the timely and effective investigation of reported dangers.
128.(13) If an employer disputes a matter reported under subsection (9) or takes steps to protect employees from the danger, and the employee has reasonable cause to believe that the danger continues to exist, the employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity. On being informed of the continued refusal, the employer shall notify a health and safety officer. If the process described in subsections 128.(9) to 128.(12) does not provide the desired results, and the affected employee still refuses to work, the employer will notify a health and safety officer.
128.(14) An employer shall inform the work place committee or the health and safety representative of any steps taken by the employer under subsection (13). In the spirit of effective internal communication, the employer will inform the work place committee or the health and safety representative that a health and safety officer was notified.
128.1(1) Unless otherwise provided in a collective agreement or other agreement, employees who are affected by a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during the stoppage until work resumes or until the end of the scheduled work period or shift, whichever period is shorter. This deals with other employees who are affected by a work stoppage due to a refusal to work or a health and safety officer's direction to stop work. It requires that these employees continue to receive their wages and benefits until the refusal is settled, or until the end of their work shift, whichever is shorter. This is limited to one shift.
128.1(2) Unless otherwise provided in a collective or other agreement, employees who are due to work on a scheduled work period or shift after a shift during which there has been stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during their work period or shift, unless they have been given one hour's notice not to attend work. In a refusal to work, employees of the next shift who cannot perform their work because of the refusal will be compensated as though they were working if they are already at work, unless they have been notified not to report to work at least one hour beforehand.
128.1(3) An employer may assign reasonable alternative work to employees who are deemed under subsection (1) or (2) to be at work. This clause provides flexibility to the employer while the refusal to work is being investigated.
128.1(4) Unless otherwise provided in a collective agreement or other agreement, employees who are paid wages or benefits under subsection (1) or (2) may be required by the employer to repay those wages and benefits if it has been determined, after all avenues of redress have been exhausted by the employee who exercised rights under section 128 or 129, that the employee exercised those rights knowing that no circumstances existed that would warrant it. Under this provision, employees affected by a work stoppage, resulting from another employee's refusal to work, may be required to repay wages and benefits paid during the stoppage, if it is determined the employee's refusal was knowingly unwarranted.
129.(1) On being notified that an employee continues to refuse to use or operate a machine or thing, work in a place or perform an activity under subsection 128(13), the health and safety officer shall without delay investigate or cause another health and safety officer to investigate the matter in the presence of the employer, the employee and one other person who is
(a) an employee member of the work place committee;
(b) the health and safety representative; or
(c) if a person mentioned in paragraph (a) or (b) is not available, another employee from the work place who is designated by the employee.
When a health and safety officer is notified of a continued refusal to work that was not resolved internally, the officer will investigate the matter with the employer, the employee and an employee representative or another person selected by the employee. This measure resembles the process for resolving a continued refusal internally as described earlier.
129.(2) If the investigation involves more than one employee, those employees may designate one employee from among themselves to be present at the investigation. As seen earlier, in cases where more than one employee has refused to work in a similar situation, one employee may represent all the other employees in an investigation.
129.(3) A health and safety officer may proceed with an investigation in the absence of any person mentioned in subsection (1) or (2) if that person chooses not to be present. Same situation as in subsection 128.(12). The investigation must not be delayed if one of the parties chooses not to be present.
129.(4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether the danger exists and shall immediately give written notification of the decision to the employer and the employee. The health and safety officer must inform the employer and employee immediately of his or her decision. If the officer decides that a danger exists, a direction must be issued to the employer. If the officer decides that there is "no danger", the employee must go back to work.
129.(5) Before the investigation and decision of a health and safety officer under this section, the employer may require that the employee concerned remain at a safe location near the place in respect of which the investigation is being made or assign the employee reasonable alternative work, and shall not assign any other employee to use or operate the machine or thing, to work in that place or to perform the activity referred to in subsection (1) unless
(a) the other employee is qualified for the work;
(b) the other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal; and
(c) the employer is satisfied on reasonable grounds that the other employee will not be put in danger.
The employer may decide to assign the employee who is refusing to work alternative work, or assign another employee to the refusing employee's work, if the other employee is aware of the refusal and the reasons surrounding the refusal, and if the other employee is qualified to perform the work safely.
129.(6) If a health and safety officer decides that the danger exists, the officer shall issue the directions under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are varied or rescinded under this Part. The only change in this provision is the addition of the performance of an activity that was addressed earlier.
129.(7) If a health and safety officer decides that the danger does not exist, the employee is not...to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision in writing to an appeals officer within ten days after receiving notice of the decision. There is a significant change in the appeal process in cases of refusal to work. A request by an employee to appeal a decision of "no danger" rendered by a health and safety officer is now referred to an Appeals Officer (formerly the Regional Safety Officer). These cases are no longer referred to the Canadian Industrial Relations Board or the Public Service Staff Relations Board.
 
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