On December 12, 2013 Bill C-4 "Economic Action Plan 2013
Act No. 2" received royal assent from the Parliament of
Canada. The very lengthy Bill, also known as the federal
government's omnibus budget legislation, focuses on economics
but also revises key federal labour laws.
Amendments to the Canada Labour Code will come into
effect on October 31, 2014 and are reviewed below.
The definition of "danger" within s.122(1) is being
repealed and replaced with the following:
"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 new and narrower definition removes previous language
referencing hazards, conditions, and activities that pose a
non-imminent threat to life or health. The definition of danger no
longer references hazards that my lead to chronic health
Redefining "danger" is particularly important when
viewed within the purview of work refusals. Section 128 of the
Canada Labour Code ("CLC") grants
workers the express right to refuse unsafe work under 3
(a) the use or operation of the machine or thing
constitutes a danger to the employee or to another employee;
(b) a condition exists in the place that
constitutes a danger to the employee; or
(c) the performance of the activity constitutes a
danger to the employee or to another employee.
Each of these scenarios requires the presence of a now
re-defined danger. As an employer it is important to
understand the new definition of danger does appear to limit the
types of hazards that trigger a worker's right to refuse unsafe
work, but employers will remain obliged to protect workers against
all risks that arise out of the
The work refusal provisions have been further amended with
respect to workplace response obligations. Employers will now be
required to immediately investigate the matter in the presence of
the employee and prepare a written report outlining the findings of
the investigation. This report will be forwarded to a workplace
health and safety representative or committee.
Previously, an employer was obliged to take immediate corrective
action if they agreed the work was unsafe to perform, and
investigate only if there was a continued work refusal. Under the
new language, a continued work refusal escalates the issue to a
workplace safety committee for further investigation. A report must
be produced by the investigating committee and the employer must
then review the report, determine whether a danger exists, and take
corrective action if necessary. If the employee continues the work
refusal, the employer must notify the Minister of Labour (the
previous version required notification of a health and safety
The focus of these amendments is on the internal management of
occupational health and safety issues and the promotion of the
Internal Responsibility System (IRS). Practically speaking, these
new provisions will require employers to designate a management
representative(s) to investigate and report on work refusals rather
than depending solely on a joint health and safety committee or
ministry of labour officers.
One piece of good news for employers is that the amendments have
also broadened the Minister's power to dismiss work refusals
without interrupting the worksite for an investigation. The new
s.129(1) allows the Minister to forego an investigation when the
matter would be more appropriately dealt with through other means
(i.e. Part I or III of the CLC); the matter is trivial,
frivolous or vexatious; or the employee's complaint is made in
bad faith. If the Minister (or a duly appointed representative)
decides not to proceed with an investigation then the employer will
be notified and the employee's right to refusal (without
reprisal) is extinguished.
The network of occupational health and safety rights and
obligations is often complex and difficult for employers to apply.
It is important to keep in mind that these amendments will only
affect federally regulated workplaces. The lawyers at CCP have
extensive knowledge of workplace health and safety issues and are
capable of assisting employers understand their obligations under
this new regime.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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