Overview of Part II of the Canada Labour Code

An Overview of the Occupational Health and Safety Provisions of the Canada Labour Code

The purpose of Part II of the Canada Labour Code is to prevent work place accidents and injuries. Below is an overview of the main provisions. CLC: 122.1

Application

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Jurisdiction

Occupational Health and Safety in the federal jurisdiction has been consolidated under the Canada Labour Code. The jurisdiction of the Code covers the following interprovincial and international industries:

• railways;
• highway transport;
• telephone and telegraph systems;
• pipelines;
• canals;
• ferries, tunnels and bridges;
• shipping and shipping services;
• radio and television broadcasting and cable systems;
• airports;
• banks; and
• grain elevators licensed by the Canadian Grain Commission, and certain feed mills and feed warehouses, flour mills and grain seed cleaning plants.

As well, the occupational Health and Safety provisions of the Code cover the federal public service and about 40 Crown corporations and agencies; employment in the operation of ships, trains and aircraft; and the exploration and development of petroleum on lands subject to federal jurisdiction. CLC:  123

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NOTE: Part II of the Canada Labour Code does not apply to certain undertakings regulated by the Atomic Energy Control Act. CLC: 123.1

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Employers' Duties

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Employers shall ensure the Health and Safety of employees, while they are at work, by complying with the standards in the Canada Occupational Safety and Health Regulations. Employers must make sure that the following items meet the standards set out in the Regulations:

• buildings, structures (permanent or temporary), guards, guard rails, barricades, etc.;
• protective devices, machinery, tools, vehicles, and mobile equipment;
• boilers, pressure vessels, escalators, elevators, electrical generation equipment, electrical distribution systems;
• levels of ventilation, lighting and noise; and
• entry into, exit from and occupancy of the work place.

Employers will provide the following according to the Regulations:

• first aid, sanitary and personal facilities, and health services;
• safe drinking water;
• safety materials, equipment, devices and clothing for every person who has access to the work place; and
• information, training and supervision to ensure the Health and Safety of employees in the work place. The Code requires that each employee be made aware of every known or foreseeable hazard in the area where he or she works.

As well, employers are required to

• provide a Health and Safety committee or representative with information considered necessary to identify existing or potential hazards;
• post in an accessible place a copy of Part II of the Canada Labour Code, a statement of the employer's Health and Safety policy, and any other material as directed by a safety officer;
• maintain Health and Safety records in the prescribed manner;
• provide the Health and Safety committee or representative with a copy of any written directions or reports from a safety officer, and post them for the information of all employees;
• ensure that every employee is made aware of every known or foreseeable safety or health hazard in the work area, including bomb threats, threats of violence, noise hazards, radiation hazards, airborne contaminants, etc.;
• comply with prescribed standards relating to fire safety and emergency measures;
• investigate, record and report all known accidents, occupational diseases and other hazardous occurrences;
• ensure that every employee or visitor knows how to use any protective clothing or equipment required in the work areas to be occupied or visited; and
• comply with every oral or written direction given to the employer by a safety officer concerning the Health and Safety of employees.

In addition, employers will follow prescribed standards to ensure

• that concentrations of hazardous substances are controlled;
• that all hazardous substances are stored and handled safely; and
• that all hazardous substances, other than controlled products*, are identified.

Subject to the Hazardous Materials Information Review Act, employers will also ensure

• that each controlled product* in the work place, or each container in the work place in which a controlled product is contained, has a label applied to it that discloses prescribed information and has displayed on it all applicable hazard symbols;
• that a material safety data sheet (MSDS) for each controlled product in the work place is made available to each employee.

With any controlled product in the work place, employers must provide information from the MSDS, (such as the chemical identity), to any physician or medical professional who requests that information, in order to make a medical diagnosis or apply medical treatment to an employee in an emergency. Any confidential information about the controlled product which is provided to a medical professional must be kept confidential. CLC: 124, 125, 125.1, COSHR

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* Controlled products are defined under the Controlled Product Regulations issued under the Hazardous Products Act. They are products which meet any criterion for inclusion in one of the six classes: compressed gases, flammable and combustib le material, oxidizing material, poisonous and infectious material, corrosive material, and dangerously reactive material.

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Coal Mines

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In any work place above or below ground that is used in the operation of the mine and is under control of the employer of mine employees, employers shall

• submit approved plans and procedures to the Coal Mining Safety Commission, established in accordance with the Canada Labour Code, Part II;
• permit inspection and tests to be carried out on behalf of the employees in any part of the coal mine and on any machinery;
• use approved safety standards for all machinery;
• conduct a personal search of every person who is not an employee, who is granted access to the underground portion of the coal mine; and
• conduct a personal search of their employees at intervals, for the purpose of preventing alcohol, articles for use in smoking, and drugs other than drugs prescribed. CLC: 125.3

Employees' Duties

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Employees are responsible for taking all reasonable and necessary precautions to ensure their own Health and Safety and that of anyone affected by their work. Employees shall undertake the following:

• comply with employer instructions concerning Health and Safety, with a safety officer's directions, and with prescribed procedures concerning Health and Safety;
• be obliged to cooperate with persons acting under the authority of the Code;
• report any hazard in the work place to the employer. Specifically mentioned in the Code is the requirement to report all accidents or hazardous occurrences; and
• use safety materials, equipment, devices and/or clothing either furnished by the employer or prescribed by a Regulation. CLC: 126

Employees' Rights

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The Canada Labour Code provides employees with three rights:

• The Right to Know
• The Right to Participate
• The Right to Refuse Dangerous Work

The Right to Know

Through the provisions of the Code, employees have the right to know about known or foreseeable hazards in the work place and to be provided with the information, instruction, training and supervision necessary to protect their Health and Safety.

Through their Health and Safety committees or representatives, employees have the right to have access to government or employer reports relating to the Health and Safety of employees, but shall not have access to medical records of any person except with that person's consent. CLC: 125

The Right to Participate

As Health and Safety representatives or committee members, employees have the right and the responsibility to participate in identifying and correcting job­related Health and Safety problems. CLC:  135

The Right to Refuse Dangerous Work

An employee, at work, has the right to refuse dangerous work if he or she has reasonable cause to believe that

• the use or operation of a machine or thing presents a danger to the employee or a co-worker; or
• a condition exists at work that presents a danger to him or herself.

However, in order for an employee to be protected by the Code when exercising the right to refuse, the employee must follow the proper procedure. The right to refuse is explained in greater detail below. CLC:  128

Refusing Dangerous Work

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Legal Rights

Under Part II of the Canada Labour Code, employees have the right to refuse dangerous work without risking their jobs or wages. The employee must have reasonable cause to believe that the use of certain equipment or exposure to some condition in the work place will result in danger to the employee or to another employee. CLC:  127

Exceptions to the Right to Refuse

Several limitations apply to the right to refuse dangerous work.

An employee may not refuse to work under the occupational Health and Safety provisions of the Code if the refusal puts the life, health or safety of another person directly in danger or if the perceived danger is inherent in the employee's work or is a normal condition of the job.

As well, the procedure for refusing dangerous work differs for employees on an operating ship or aircraft. Such an employee wishing to refuse work must report the matter without delay to the person in charge of the craft. The person in charge may decide whether to allow the refusal depending on the operational safety of the ship or aircraft. If the refusal is not allowed, the matter can be dealt with when the ship or aircraft arrives at its first destination in Canada. The employee may then exercise the right to refuse, as described below. CLC:  127(2)

Procedures for Refusing Dangerous Work

Report to Employer

The first step for an employee exercising the right to refuse dangerous work is reporting his/her refusal immediately to his/her supervisor and to the safety and health representative or a member of the Health and Safety committee.

Investigation by Employer

The employer must then investigate the refusal in the presence of the employee and either a non­management member of the Health and Safety committee, or the Health and Safety representative. If there is no representative or committee, the investigation must take place in the presence of at least one person chosen by the employee refusing to work.

Continued Refusal

Where the employer decides that there is no danger or takes steps to correct the danger and the employee has reasons to believe that a danger still exists, the employee may continue to refuse. In this case, both the employer and the employee must contact a safety officer.

Reassignment of Employee and Task

Until the safety officer arrives, investigates and makes a decision, the employer cannot assign the work in question to another employee unless that other employee has been informed of the refusal. Meanwhile, the employee who refused to work may be asked by the employer to remain in a safe place nearby or may be assigned to reasonable alternate work.

Investigation and Decision by a Safety Officer

In the presence of the employer and the employee (or the employee's representative), the safety officer investigates the work refusal, decides whether a danger exists, and informs the employer and employee of this decision.

Result of Decision

If the safety officer decides that a danger does exist, he or she issues a direction to the employer to correct the situation. The employee can continue to refuse the work until the employer complies with the direction.

If the safety officer decides that a danger does not exist, the employee no longer has the right to refuse under the protection of the Code. However, the employee may appeal the decision of the safety officer.

Appeals

Requests for a review of the decision of a safety officer may be made to the safety officer, requiring him or her to have the decision reviewed by the Canada Labour Relations Board or, for the public service, the Public Service Staff Relations Board. The request must be made in writing within seven days of receiving notification of the safety officer's decision. CLC: 129

It is important for you to know that

• while a direction is being reviewed, the employer must still comply with the direction; and
• until your employer has complied with the direction, you don't have to do the job in question.

If an employer takes action against an employee for refusing to do dangerous work

The Canada Labour Code gives the employee the right to complain to the Canada Labour Relations Board about improper dismissal, lay off, suspension or other penalty.

An employee has 90 days from the time of such an action to make a complaint to the Board. In order to be protected by the Code, you must have followed the procedure.

If you complain to the Board that disciplinary action has been taken against you because you used your right to refuse, it will be up to your employer to prove that this is not so.

The Board will make the final decision to resolve the situation.

However, you can appeal the Board's decision to the Federal Court.

REMEMBER

It is very important to follow the procedure when you refuse to do dangerous work.

In order to exercise your right to refuse, you must have reasonable cause to believe that a condition at work is a danger to you or that the use of a machine or thing at work presents a danger to you or to another employee.

The right to refuse dangerous work should not be abused. It is there to protect you.

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