Date: 2007/03/07 (Revised)
This directive establishes operational procedures to govern health and safety officers' responses to refusals to work under section 128 and section 129 of the Canada Labour Code Part II.
This directive applies to health and safety officers (HSOs) and all other officials of the Labour Program of Human Resources and Social Development Canada (HRSDC) in the regions and headquarters with respect to refusals to work in case of danger. It specifies the procedure to be used, starting with the initial contact with the employee and employer up to and including the final settlement of the dispute when the file can be closed.
This OPD is to be read and applied in conjunction with other relevant IPGs and OPDs, which are noted in the relevant sections as well as at the end of this OPD.
The official of the Labour Program who receives notification of a refusal to work (i.e. Duty Officer, Manager etc.) inquires into federal jurisdiction and if the refusal is based on an occupational health and safety concern. The official then refers the refusal to work to a HSO without delay unless:
When the employer is clearly within provincial jurisdiction the official of the Labour program will give reasonable assistance to the caller in contacting the appropriate provincial department or agency.
The refusal to work may continue to the point of being investigated by a HSO only if the preliminary criteria discussed in 5 "Preliminary Inquiry" below, are met. Prior to conducting this preliminary inquiry, the HSO asks the person reporting the refusal to confirm that:
The employer or employee reporting the refusal may then determine that the notification was premature or improper and withdraw such notification. Note: Only the employee who is refusing to work can withdraw the notification on the basis of the ss.128(2) exclusions.
If the employee chooses to withdraw the notification, the HSO records this activity in LA2000 under the ERA module as counselling.
If the notification is not withdrawn, the HSO conducts a preliminary inquiry. When proceeding with the inquiry and investigation, the HSO avoids being drawn into other disputes between the parties.
To facilitate the preliminary inquiry, the HSO first:
(See Refusal to Work Registration Form HRSDC LAB/TRAV1069 (1994-10-001) B Lab/Trav795 (Appendix A), Qs10-12.)
Until the HSO completes the preliminary inquiry, the employee has the right to refuse, and all the provisions of the Code relating to this right continue to apply (regarding payment of wages, re-assignment of duties etc).
Note: OPD 905-1 Response to the Right to Refuse Dangerous Work-New Procedure Memorandum: (PDF Document 270 KB)
The inquiry is conducted on site unless circumstances otherwise indicate that it would be more appropriate to conduct it over the telephone. This is determined if possible, in consultation with the TA. An HSO who is unable to obtain sufficient information by telephone to determine the preliminary criteria, conducts an on-site investigation. For any telephone inquiry, the procedures outlined in OPD6.1.3 are to be followed.
If not already completed, the Health and Safety Officer ensures that the "Refusal to Work Registration" form (Appendix A) is filled out, and confirms the information provided by the parties and has them sign the form. (This form serves as the basis for the inquiry and any investigation, and is also used by the Appeals Officer.)
During the inquiry, the HSO notes and gathers in a bound and numbered notebook, all of the relevant information and facts.
The Preliminary Inquiry Report (Appendix G) is completed during the course of the inquiry. It addresses three categories of preliminary criteria:
The right to refuse under the Canada Labour Code applies only to employees whose employer is under federal jurisdiction.
Although no specific words need to be used to exercise the right, the Code requires the refusal to be based on occupational health and safety concerns, particularly a reasonable belief in the existence of danger.
Unionized employees may be governed by a collective agreement rather than the Code in one of two ways. First, the Minister may have granted the parties a section130 exclusion from the right to refuse under the Code. Second, in a particular work refusal, an employee may elect under ss.128(7) to exercise his rights under a collective agreement rather than the Code, and the employee may change such election only with the employer's consent.
The employee is required to notify the employer and the workplace committee or representative of the refusal (ss.128(6) and (9)), while the employer is required to conduct an internal investigation (ss.128(10)).
If the notification came from an employee who did not notify the employer of the refusal, the HSO informs him that the investigation can start only after the parties have tried to resolve the matter internally according to ss.128(6) to 128(14) of the Code. The HSO asks the employee to report the circumstances of the refusal immediately to his employer, as required by ss.128(6).
An employee's failure to report the matter to the employer may indicate lack of awareness of the relevant provisions of the Code, therefore the HSO should summarize the key points, noting that:
The HSO does not question the "quality" of the investigation made under ss.128.(10). However, if the employer did not, and does not intend to do the investigation required under the Code, the health and safety officer may issue a direction to the employer under ss.145(1) to cease contravening ss.128(10) (see OPD-700-5, Response to Non-Compliance with the Canada Labour Code).
There is no right to refuse if the refusal puts the life or health and safety of another directly in danger (Paragraph128(2)(a)). Such refusals are rare. The HSO asks the employer, the employee and an employee member of the workplace committee or the health and safety representative if this is the case. If nobody answers in the affirmative, he proceeds to determining the next exclusion. If the matter is disputed, the HSO should obtain from each party its rationale with any supporting documents or other information. If the matter is not clear, the HSO should consult with the TA before making a determination. The rationale should be briefly provided.
The determination of the existence of the normal condition of employment ("NCE") exclusion is based on IPG-070, Normal Condition of Employment. Appendix G guides the HSO through the following three key steps in the inquiry:
The applicability of the exclusion is examined in light of the employee's rationale for refusing to work. This is taken from Question12 of the refusal to work registration form HRSDC LAB1069 (1994-10-001) B LAB/TRAV795. The HSO then ascertains and records the position of the parties, who should have addressed the issue of normal condition during the internal resolution process.
The HSO obtains and considers the following information:
Based on the information obtained above, and in light of the parties' positions, the HSO determines how the activity or task in question is normally performed with respect to:
The HSO then determines whether the circumstances on which the refusal is based diverge from these circumstances on more than a minimal basis. If they do, the normal condition of employment exclusion does not apply and the Code gives the employee the right to refuse.
If they do not diverge, the HSO verifies that none of the circumstances on which the refusal is based contravene the employer's specific duties under s.125 and s.125.1 of the Code and the related regulations. If they do contravene, they are not considered to be normal conditions of employment so the Code gives the employee the right to refuse.
Upon completion of Appendix G and the conclusion of the inquiry, the HSO immediately notifies the employer and employee and workplace committee or health and safety representative of the determination and:
If Any of the Preliminary Criteria Are Not Met: In this case, there is no investigation into the existence of danger and the employee has no right under the Code to continue to refuse to work. The HSO finalizes the Assignment in LA2000 with the appropriate Result Code to indicate the reason that the refusal is not permitted. Within 10 days of completing the Preliminary Inquiry Report, the HSO provides a copy to the employee, employer and workplace committee or health and safety representative. (See cover letter Appendix G(i)– to be developed)
Note:: If it has been determined that there is no right to continue to refuse but the employee's individual medical condition is a factor, the HSO will inform the employer of his duty to accommodate.
In appropriate circumstances, the HSO informs the employee that he may initiate a complaint through the Internal Complaint Resolution Process (ICRP) and that, if the issue is not resolved at the workplace level, the matter may then be referred to the Labour Program without resorting to the refusal to work provisions.
An HSO who is of the opinion that there are contraventions to the Code may take appropriate action under the Compliance Policy (OPD700-2) and OPD700-5, Response to Non-Compliance with the Canada Labour Code, Part II.
After the HSO has determined that the preconditions to the employee exercising his right to refuse have been met, he investigates the existence of danger.
The HSO will refer to the Refusal to work Registration Form (Appendix A).
Note: If the employee, after providing the essential information under Q12 (i.e., the Statement of Refusal to Work) refuses to sign the form or decides to withdraw it during the investigation, the HSO nevertheless completes the investigation and renders a decision on danger. This is because ss.129(1) makes it mandatory for the HSO to investigate qualified refusals to work and does not impose formalities such as a signed form.
During the investigation, the HSO:
Continues to note and gather in a bound and numbered notebook the relevant information and facts.
Note: The HSO will use relevant information already obtained in the Preliminary Inquiry (see especially 5.5.2) but also obtain additional information focusing on danger, such as photographs, samples, readings, measurements, depositions, information on any past incidents.
Medical certificates may be relevant documents for determining whether the danger was caused by a machine or condition at the work place or by the employee's own medical condition. If so, the HSO uses Appendix D to seek the employee's consent to the release of information.
The HSO includes in the Investigation Report and Decision (Appendix B):
Bearing in mind the nature of an investigation pursuant to ss.129(1), a telephone investigation may be carried out in exceptional circumstances. For example, if the refusal to work takes place in a remote part of the country, the telephone may be the only readily available means at the health and safety officer's disposal to be rapidly informed of the refusal and help the parties in solving the issue.
Before conducting an investigation over the telephone, the HSO ensures he has access to the necessary equipment in order to receive the required documents at the time of the investigation. This may require that he proceed to Labour Program offices. During any telephone investigation, the HSO takes all reasonable measures to carry out a four-way conversation with the employer, the employee and the employee's representative to clearly establish the identity of those speaking.
Pursuant to ss.129(4), on completion of the investigation the HSO decides whether or not danger exists as defined in s.122(1) of the Code. IPG-062 Definition of Danger provides guidance on this subject. The HSO completes Appendix H, "Assessment of Danger and Points to Consider When Issuing a Direction under 145(2)(a) or 145(2)(a) & (b)" prior to rendering the decision and it forms part of the Investigation Report.
The HSO bases his decision on:
The HSO immediately notifies the employer and the employee in writing of his decision, as required under ss.129(4), and as elaborated below.
The Code specifies the consequences of a decision of danger or no danger. Additionally, the HSO should provide the parties with relevant information.
In cases of danger, the HSO issues directions to the employer under subsection145(2) and to the employee under subsection145(2.1). The directions constitute written notification under subs.129(4).
Note: If a situation is a danger only to a particular employee due to a medical condition, a solution limited to that employee's situation is appropriate. As with all directions, the HSO will not direct a specific solution.
Before issuing a direction, the HSO:
Upon issuing the direction under ss.145(2) the HSO:
For a decision of No Danger, the "Letter of No Danger" (see Appendix B(ii)) serves as the written notification of the officer's decision. The HSO gives this Letter to the employer and employee immediately before leaving the work place.
Note: In the case of a group refusal the written notification (Appendix B(ii)) may be provided to the chosen representative, and copies to the individuals concerned for appeals purposes. The HSO clearly establishes the date on which each employee receives the HSO's written decision of No Danger. (This is important for appeal purposes.)
Upon providing the Letter of No Danger, the HSO also:
Note: Even if there is no danger, an HSO who is of the opinion that there are contraventions to the Code may take appropriate action under the Compliance Policy (OPD700-2) and OPD700-5, Response to Non-Compliance with the Canada Labour Code, Part II. However, unlike a danger direction, a direction under subs.145(1) should not require immediate action or protection of employees.
Note: If the HSO issues a direction he will close the refusal to work assignment and open an Inspection Specific assignment in LA2000.
Appeals are to be made directly to the Canada Appeals Office on Occupational Health and Safety (CAO-OHS). If an employer or employee sends a request for an appeal to the HSO, the HSO immediately forwards it to the CAO-OHS along with the cover letter in Appendix C.
Upon the request of the Appeals Office, the HSO provides it with copies of the relevant documents.
The determination that the refusal to work is not permitted due to the preliminary criteria not being met, cannot be appealed. The employee may, however, seek judicial review before the Federal Court (contact information is provided in the letter to accompany such a decision, at Appendix G(i)). If the HSO or another officer in the Region receives a Notice of Motion to seek judicial review, the TA-OHS and Regional Director shall be informed and it should be referred to headquarters. Copies of the relevant documents will be provided to the court, if requested.
If an employee complains that disciplinary action has been taken against him as a result of his refusal, the HSO informs the employee and the employer of the protection provided by s.133 of the Code and the employee's right to make a complaint to the Board. The HSO may counsel on the provisions of Part II, to avoid unnecessary complaints or references to the Board.
The HSO nevertheless provides the employee with the necessary information for the employee to contact the Board. The HSO does not decide if the complaint is admissible, since that right belongs to the Board. The employee has 90days to address his complaint to the Board in writing.
The HSO completes the written investigation report and appendices and sends a copy to the employer, employee(s) and the work place committee along with other appropriate appendices that were completed.
The HSO finalizes and closes the Refusal to Work Assignment file in LA2000 when either a decision of no danger is rendered, or when compliance is achieved for any AVCs or directions issued by the HSO, regardless of whether or not an appeal has been filed.
The HSO includes in the Assignment file the following documents:
If an appeal is filed, the HSO initiates in LA2000 a Follow-Up Assignment when he is contacted by the Appeals Office. The HSO records all time spent preparing for the appeal, and includes the Appeal decision when rendered, in the Follow-Up Assignment.
Note: If a direction has been issued, the HSO or another, if assigned, initiates the appropriate activity to ensure that compliance is achieved within the appropriate time frames.
The manager of the HSO Compliance and Operations Unit is responsible for evaluating, periodically reviewing and, where necessary, amending this directive, and ensuring uniform application in all Regions.
The Labour Program Regional Directors and Operational Managers are responsible for coordinating its implementation and ongoing application in their respective region and/or offices.
The HSOs are responsible for:
Human Resources and Social Development Canada