Danger: Hazardous Work Area —Troubling Amendments to Health and Safety Legislation Take Effect

The right to work in a safe and healthy environment is a cornerstone of modern employment rights. One of the ways that governments ensure and promote the health and safety of workers is through legislation. For employees who work in federally regulated workplaces, the applicable legislation is the Canada Labour Code. The purpose of the occupational health and safety provisions of the Code is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.

On October 31, 2014, changes to the occupational health and safety provisions of the Code took effect. These changes have the potential to erode some of the key rights that workers had under the old version of the Code and may work against the Code’s stated purpose of preventing accidents and injury to health.

Application of the Canada Labour Code

The provisions of the Code apply to workers who are employed in federally regulated industries, including banks, railways, highway and air transport, radio and television broadcasting,  and (for some purposes) employees of the federal government as well as Crown corporations and agencies.

Occupational Health and Safety under the Canada Labour Code

The occupational health and safety provisions are contained in Part II of the Code. These provisions impose duties on employers and employees to ensure the health and safety of everyone in the workplace. The Code establishes three basic health and safety rights for employees:

1. The right to know about hazards in the workplace and information that will help protect employees’ health and safety;
2. The right to participate in health and safety processes in the workplace; and
3. The right to refuse unsafe work.

Amendments to the Canada Labour Code

The recent Code amendments contain a number of significant changes to the health and safety provisions. Perhaps the most significant changes are those which limit an employee’s ability to refuse unsafe work.

Definition of a workplace “danger” amended

The definition of danger is significant for accessing many of the rights contained in the Code, including the right to refuse unsafe work. Previously, “danger” extended to situations involving exposures that could result in chronic illness, disease or damage to the reproductive system. Under the new definition, for a situation to be a “danger”, there must be serious or imminent risk to life or health.

Increased powers to Minister to investigate, dismiss work refusals

Previously, if an employer investigated a work refusal and determined that there was a danger, it was mandatory for a health and safety officer to investigate the matter in the presence of the employee. The amendments create two significant changes to this process: first, it is now the Minister of Labour or the Minister’s delegate that performs the investigation. Second, and perhaps more significantly, the investigation is not mandatory—rather, the Minister can dismiss complaints without investigating if he or she is of the view that the matter can be dealt with under another procedure of the Code. The Minister can also dismiss a complaint without investigation if he or she is of the view that the matter is trivial, frivolous or vexatious or if the refusal to work is made in bad faith. If the Minister does not proceed with an investigation, the employee can no longer refuse to work.

The amendments may erode the right of workers to refuse unsafe work

The new provisions of the Code only recently came into effect and it is difficult to say exactly how workers will be affected. It remains to be determined whether the changes to the definition of danger will limit the circumstances in which workers can refuse work on the basis of a dangerous situation in the workplace, or whether courts will interpret “danger” in essentially the same way as under the old definition. While the implications of the change to the definition of danger are uncertain at this point in time, it does seem clear that the new powers of the Minister to dismiss complaints without investigation bestow wide-ranging discretion on the Minister. As an employee cannot continue to refuse to work if the Minister does not proceed with an investigation, the Minister’s ability to dismiss complaints without investigation could result in workers returning to unsafe conditions.  Worker advocates will be closely following how these amendments are interpreted and applied by employers and the courts.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]