Introduction

“The right to refuse unsafe work and the ‘internal responsibility system’
represent a fundamental shift in ideology over how workplace health and safety
is governed. Using qualitative data, Gray provides a grounded critique of this
shift and demonstrate that the right to refuse is continually evolving though
its everyday applications: the local definition of what constitutes risk is
constantly being negotiated. Even when workers do not formally use this right
to deal with a hazard they still, nonetheless, engage in the local construction
of how this safety right is conceptualized, defined and exercised.” (Gray, 2002)

 

Everyone in the workplace, that
includes workers and employers is responsible for their own safety and the
safety of the co-workers. This is the foundation of Internal Responsibility System (Gray, 2002) that forms the underlying philosophy of the
occupational health and safety legislation in all Canadian jurisdictions. This
system will essentially, create an employee-employer partnership in ensuring a
safe and healthy workplace and entrusts the responsibility on everyone in the
workplace. The legal right to refuse unsafe work is one element of the Internal
Responsibility System. The right to refuse unsafe work appears to have the
support of the power of law and seems to fully protect workers from having to carry
out jobs that they believe are dangerous. But the system of internal
responsibility stipulates that workers take responsibility for their own safety
while at work. Thus the two represent a fundamental change in ideology over how
workplace safety is managed.

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The Internal Responsibility System
that relies on responsible workers is affected by social interaction within a
workplace and the overall social relations of production. Safety is just one of
the many factors that determine whether an employee will exercise his/her legal
right. Any formal safety refusal has an inherent confrontational nature about
it. If the employee wants a good working relationship with the employer and
does not want to get into a possible conflict, he/she will lean towards a
less-confrontational method of refusing.

The
three broad pathways for refusing dangerous work, that differentiate the
various types of strategies that workers use to negotiate safety, are:

1.    
Formal
confrontational,

2.    
Informal
confrontational, and

3.    
Informal
non-confrontational

Even though workers possess the right
to refuse unsafe work, they may not formally use their employee right, but they
still greatly influence the way safety right is conceptualized, defined and
exercised. The general types of legal awareness of workers who refuse unsafe
jobs are ‘before’, ‘with’ and ‘against’ the law as mentioned by Garry C Gray in
his research paper.

The two main characteristics of the ‘before the law’ form of legality is
that the law is characterised by its impartiality and individuals are more
likely to use the law if they can justify to themselves that some kind of
collective harm exists. The individual nature of the right to refuse unsafe
work might therefore be in practical conflict with how some individuals
generally understand the appropriate use of the law. This explains why some
people may avoid using their formal right to refuse unsafe work.

In the ‘with the law’ form of legal consciousness, the law is described and
played as a game. The legal right of refusing unsafe work is mostly not exerted
by an employee because of the historical conflict and present day
confrontations that happens after the refusal. This results in workers relying on
informal ways of refusing. In the event of a confrontation, the matter is dealt
within and resolved privately in the organization as required by the internal
responsibility system, thus replacing the ‘practice’ of legal consciousness by
encouraging workers and those with managerial authority to involve in the
practice of “internal game playing”. This could be both direct like, misusing
the legal loopholes in the procedural aspects of workplace refusals and
indirect such as, making subtle threats of potential job loss or transfer. Some
workers can play with the law better than others and thus the informal
non-confrontational way of refusing is the most predominant method used by
workers.

The ‘against the law’ form of legality is developed over time and
through experience for many of the situations which the workers confront regularly
at work. In this form, the workers will not formally use the law; instead they
rely on actions such as privately refusing, avoidance and involving in other
silent and hidden resistant practices.  This
gradually becomes a routine because they are repeated so often thus losing the initial
intent of refusal to work.

Legislations across Canada

Workers generally have four rights under the
Occupational Health and Safety Act (OHSA): the right to know the potential
hazards, the right to participate in identifying the health and safety hazards,
the right to refuse unsafe work, and the right to stop dangerous work. The
contentious one among the four is the Act that allows worker the right to
refuse work that he or she believes is unsafe to himself or his co-worker.

Every province has regulations governing the right
to refuse unsafe work and they vary slightly from province to province. The legal
right achieved by the labour movement to provide a safe workplace by the
employer and the right for a healthy and safe workplace for the workers has
gained great importance throughout Canada. The legal rights and obligations of a
worker to refuse unsafe work is in Part II of the Canada Labour Code (laws-lois.justice.gc.ca/eng/acts/L-2/page-22.html,
1985).
The definition of danger in the Labour Code reads as:

“danger
means any hazard, condition or activity that could reasonably be expected to be
an imminent or serious threat to the life or health of a person exposed to it
before the hazard or condition can be corrected or the activity altered”

The legislation provides all workers the right
to refuse work on reasonable grounds they believe that could compromise their
safety, and/or the safety of others; however exercising the right to refuse is a
serious issue and cannot be taken casually. This typically involves a sequence
of steps to identify and resolve the unsafe or dangerous work. Sections of
legislation which refer to the “right to refuse” work in each jurisdiction
are listed below (cupe.ca/orders/refusing-unsafe-work-fact-sheet, 2015): 

Alberta

Occupational Health and Safety Act, Sections 35
and 36

British Columbia

Workers’ Compensation Act, Occupational Health
and Safety Regulation – Section 3.12 and 3.13

Manitoba

Workplace Safety and Health Act, Sections 42
and 43

New Brunswick

Occupational Health and Safety Act, Sections 19
to 23

Newfoundland and Labrador

Occupational Health and Safety Act, Sections 45
to 49

Nova Scotia

Occupational Health and Safety Act, Sections 43
to 45

Ontario

Occupational Health and Safety Act, Sections 43
to 50

Prince Edward Island

Occupational Health and Safety Act, Sections 28
to 31

Quebec

Act Respecting Occupational Health and
Safety, Sections 12 to 31

Saskatchewan

Saskatchewan Employment
Act, Section 3-31

Canada

Canada Labour Code, Part II, Sections 128
to 131

 

Some of the similarities and difference in
legislation among the provinces are summarized as below (cupe.ca/orders/refusing-unsafe-work-fact-sheet,
2015):

According to Section 35 of the Occupational
Health and Safety Act in Alberta,
the worker can refuse unsafe work if he or she believes there is imminent danger
to himself/herself and to others. The worker cannot be disciplined or dismissed according
to Section 36 of the act for conforming with the legislation.

In British
Columbia, the Act (OHSR, Section 3.12) states that the worker must not
carry out unsafe work or any work process or operation of any tool or equipment
that would lead to workplace hazard to self or others. According to the
Workers’ Compensation Act (Occupational Health and Safety Regulation, Section
3.13), the worker cannot be disciplined
for complying with the regulations.

If the work is considered to be dangerous to
the worker’s health and to his/her co-workers, Section 43 of the Workplace
Safety and Health Act allows the worker to refuse work in Manitoba. Section 42 of the act states that the worker cannot be threatened or discriminated against for conforming with the legislation

According to Section 19 of the Occupational
Health and Safety Act, a worker in New
Brunswick has the legal right to refuse work if there is a reason to
believe that an act is likely to compromise the safety and health of himself
and others. According to section 24 of the act, no worker can be discriminated against, threatened, or coerced for acting in accordance with the legislation.

A worker in Newfoundland and Labrador has the legal right to refuse unsafe work
according to Section 45 of OHSA, if there is reasonable ground to believe that
the work, tool or equipment is dangerous to the health and safety to the worker
and others in the workplace. Section 49 of the Act states that the worker
cannot be discriminated against
through dismissal, discipline, or reduction of either wages or benefits for complying with the
legislation.

In Nova
Scotia, according to Section 43 of the OHSA, if there is sufficient ground
to be certain that a work condition, equipment, material or any aspect of the
work is dangerous to the safety and health of the worker, he or she has the
legal right to refuse work. The worker according to section 45 of the act
cannot be threatened or victimised through dismissal, reprimand or reduction of either wages or benefits
for complying with the legislation.

Ontario’s OHSA Section 43(3) states that any equipment
or workplace condition that is likely to endanger the health and safety, the
worker has the right to refuse work. Few workers and certain circumstances are
excluded from this regulation which are listed in Section 43(1) and (2) of the
OHS Act. According to Section 50 of the OHS act, the worker cannot be threatened, discharged, disciplined, intimidated or forced for complying with the legislation.

If there is a defensible reason to be certain
that the work will cause harm to the health and safety of the worker and
others, Section 28 of the Occupational Health and Safety Act in Prince Edward Island allows the worker
to refuse work. Section 29 of the act states that the worker cannot be threatened or discriminated against, intimidated
or coerced for complying with the
legislation.

For a worker in Quebec, Respecting Occupational Health and Safety (ROHSA), Section
12 of the Act states that on reasonable grounds if the work appears to
compromise the health and safety or physical well-being of the worker and
others, he/she has the legal right to refuse work. Sections 30 highlights that
in such circumstances the worker cannot be dismissed,
suspended, transferred, or penalized
for complying with the legislation. Also, the worker has the right to
protective reassignment under certain situations.

Saskatchewan also has similar regulation like other provinces.
Section 3-31 of the Saskatchewan Employment Act allows the legal right of
refusal to work under reasonable grounds if a worker deems that the act or a
series of acts is dangerous to the health and safety at workplace. In Section
3-35 of the act, the worker cannot be
discriminated against for complying with the legislation.

Workers in the Federal Sector have the
right to refuse work, according to Section 128 in Part II of the Canada Labour
Code, if there is reasonable grounds to believe that the work performed will
put the safety and health of worker and others in danger. Certain categories
like workers on ships and aircraft operations are exempted from this Act according
to Section 128 (3-5). According to the Section 147 of the code, no worker can
be dismissed, suspended, or penalized
for complying with the legislation.

The essence of the legislation to refuse and
report unsafe work in every province and federal sector in Canada is very close
in their interpretation and application. On the contentious issue of the right
to refuse unsafe work, most employers have the concerns of this right being
misused to settle non-health and safety issues. Employers also question the
subjective assessment mentioned in the Act, under which the worker must only
have “reason to believe” that work is unsafe to qualify for initial investigation.
Employers normally oppose the “susceptible worker” policy, in which workplace situations
can be considered unsafe for a particular worker with a special susceptibility,
rather than the normal worker.

Trips and fall at workplace can be attributed
to both the employers having an unsafe workplace and the employee not being
careful. There is often disagreement between the employer and workers about the
work place hazards. As mentioned in the article “Right to Refuse Dangerous
Work” (Peter Bowal & Aleksandar Gvozdenovic, 2015), there has to be a
dialogue between both parties, assess workplace hazards and understand the
implications of not following the legislations.

Recognizing and declaring
dangerous work

Health and safety hazards exist
everywhere. An unsafe work, confined work space, work involving equipment, all
work that has danger to the health or safety of the personnel need to be
identified and proper measure to protect the worker needs to be put in place by
the employer. The five major workplace hazards are:  Physical, Ergonomic, Biologic, Chemical &
Psychological Hazards. Some of these hazards are visible and easy to identify
whether it is unsafe to execute. Some hazards occur over a period of time due
some routine body postures. Other hazards occur due to improper contact of
chemical or infectious objects. Employers, in such cases should have mandatory
assessments to review and identify unsafe working conditions to avoid legal
liabilities.  The hazard assessment should
be carried out to identify existing and potential hazards for every job and
every task at a work site. Once the hazards are identified and risk level is
assigned, appropriate precaution and control measures need to be put in place.

The procedure and situations to refuse work
differs from province to province. The process by which the worker can exercise
the right to refuse work involves certain steps which is more or less same in
every province. The general procedure followed are (Alberta.ca »
Labour » Occupational Health & Safety>Section 35 Existence of imminent
danger, 2013):

·       The first step the worker has to take is
report to the immediate supervisor about his or her intention to refuse work as
he/she believes it is unsafe. Simply stating that something is unsafe is enough
to start the work refusal process. It has to be rationally defensible to
believe the work to be unsafe.

·        If the
work situation cannot be corrected immediately, the worker, supervisor and
Joint Health and Safety (JHSC) member will initiate the investigation process.

·       The worker will resume work only if the
workplace is fully made safe and mutually agreed by the employer and worker.

·       If the condition cannot be made safe, a
government health and safety inspector is brought in to investigate the
situation. The inspector will provide a decision in writing.

·       The employer should not assign any other
worker to the job without informing them about the work refusal and the reason
for refusal.

·       If the worker is not satisfied with the report
of the investigating officer, he/she can appeal for a review within 30 days.

The flow chart from the Canadian Labour Code
summarizes the sequence of process followed in the event of refusing unsafe
work (Part
II of the Canada Labour Code (Occupational Health and Safety), 2015).

 

 

Consequences of refusing
unsafe work

Employment and Social Development
Canada enforces the Canada Labour Code which notifies the employees and
employers of their legal right and obligations if a refusal of work take place
in the workplace. According to the code, the employer is defined as “a person
who employs one or more employees and includes an employers’ organization and
any person who acts on behalf of an employer” (Part
II of the Canada Labour Code (Occupational Health and Safety), 2015)

If an employer or supervisor receives
notification that an employee has used the legal right and refused to carry out
unsafe work, an investigation should immediately be conducted to assess the
imminent danger, in the employee’s presence. The investigation can also take
place in the absence of the employee if he/she agrees to it. The work cannot be
re-assigned to any other employee while the investigation is on. Once the
investigation is completed, the employer has to prepare a written report stating
the outcome of internal investigation.

If the employer agrees that there is
a danger based on the investigation results, the employer should take urgent
action to protect the employees from that danger and should inform the work
place committee or representative about the corrective action taken. Once the
corrective measures are taken and the employee is satisfied, he or she can
return to work.

If the employee disagrees with the
decision taken by the employer after the investigation, the employee can
continue to refuse the work, which then should be immediately reported to the
employer and to the work place committee or representative. The work place
committee or representative will then immediately initiate an investigation in
the employee’s presence. The investigation will be conducted in an unbiased
manner by a team consisting of one member representing the employees and one
member representing the employer. When the investigation is completed, the work
place committee or representative will give a written report with the
investigation results and any recommendations to the employer. If the employer
wishes to provide any additional information to have the report reviewed, and
if the workplace committee or representative finds them as appropriate to be
taken into account, they can provide a revised report to the employer.

If the employer decides that the
danger exists after reviewing the work place committee’s report, the employer
should take immediate corrective action to protect the employees and this
should be reported to the work place committee. Once the corrective measures
are taken and the employee is satisfied, he or she can return to work.

If the employer decides that the
danger exists but the refusal cannot be permitted under ss. 128.(2) “as it puts
lives, health or safety of another person directly in danger or the danger is a
normal condition of employment”, then the employer should let the employee know
about this in writing and if the employee agrees to it, then he or she can
return to work.

If the employee disagrees with the
decision taken by the employer, the employee should inform the employer that
the refusal to work would continue. The employer will then immediately report
it to the Minister of Labour and the work place committee or representative. A
copy of the two earlier investigation reports is also provided to the Minister.

The Minister, upon receiving the
report about the continued refusal, will decide if the refusal can be more
effectively addressed by some other legislation or is “trivial, frivolous or
vexatious, or made in bad faith” in which case, the Minister will not proceed
with an investigation and will provide his decision in writing to the employee
and the employer. The employee no longer has the right to refuse to work. If
the employee is not satisfied by the Minister’s decision, the employee can file
a judicial review application with the Federal Court within thirty days after
the decision.

If the Minister proceeds with an
investigation, this will be done in the presence of the employer, employee and
a member of the work place committee appointed by the employees. While the
Minister’s investigation is on, the employee can continue the refusal to work;
and the employer may bring in another qualified employee to do the same work. The
employer has to inform this employee of the continued refusal and the reasons
for it and assure that he/she will not be exposed to danger. If there is a
previous or ongoing investigation for this employer which involves almost the
same issues, the Minister can consider whether or not to trust the previous
investigation findings. The Minister can also consider if this investigation
can be combined with any ongoing investigation so that a single decision can be
handed out. The Minister will then conduct an investigation and will give a
written report with the decision to the employer and the employee.

If the Minister determines that unsafe
situation exists at work, the Minister will issue appropriate directions regarding
the work. The employee can continue to refuse to work until the working
situations have met the terms as in the directions or until they are modified
or cancelled.

If the Minister decides that the
danger exists but the refusal cannot be permitted under ss. 128.(2) “as it puts
lives, health or safety of another person directly in danger or the danger is a
normal condition of employment”, then the Minister should provide this decision
in writing, and the employee is no longer entitled to refuse work.

If the Minister decides that the
danger does not exist, then the Minister should provide this decision in
writing, and the employee is no longer entitled to refuse work.

After providing the Minister’s
written decision, a copy of the written report will also be provided to the
employee, employer and the work place committee or representative within 10
days of its completion.

If the employee is not happy with the
Minister’s decision that no danger exists or the refusal is not permitted under
ss. 128.(2), the employee can appeal in writing to an appeals officer within 10
days after receiving the decision.

If any employer, employee or trade
union is not happy with the Minister’s direction, they can appeal in writing to
an appeals officer within 30 days after the direction was issued.

Discipline for refusing
work believed to be unsafe

An employee cannot be disciplined or
dismissed if the refusal to dangerous work was in compliance with the
legislation and regulations. However, if the employer can prove that an
employee has deliberately misused his right to refuse dangerous work,
disciplinary action can be taken against that employee, once all the
investigations and appeals have been completed. The reasons for the
disciplinary action should be provided in writing to the employee within 15
working days of the employee’s request. The employee can make a complaint
regarding the disciplinary action within 90 days to the Canada Industrial
Relations Board. If the employee is a public servant, he/she can complain to
the Public Service Labour Relations Board (PSLRB). If the board receives a
complaint that an employee is penalized for exercising the right to refuse
unsafe work, then the employer will have to demonstrate before the Board that
the decision is not related to the incident of refusing work by the employee. The
final decision will be taken by the Board or PSLRB; but, if the employee is not
satisfied, he/she can appeal the Board’s decision to the Federal Court.

 

Conclusion

Despite the Federal and Provincial
legislations that governs workplace health and safety in Canada, every year
many Canadians are still injured and killed in their workplace. Safety of
workers should be enforced by the government and laws should encourage
employers to act more responsibly. Right to refuse dangerous work has proved as
a deterrent in Canadian workplace against unsafe work practices. Majority of
Canadian workers are shielded against acts of retaliation by employers for
declining to perform unsafe work.

The most glaring inadequacy in this
legislation is the lack of standards to determine the rationality of any worker’s
claim of an unsafe work. Employers are at time forced to retrieve due to the
stringent legislation which seems to favour the worker. Legislations are meant
to be followed and not to be bypassed.

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