Changes to Federal OHS Law to Take Effect Oct. 31, 2014

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According to an order published in the Canada Gazette Part II, Vol. 148, No. 13 (see p. 219), changes to Part II of the Canada Labour Code introduced in Bill C-4 will take effect on Oct. 31, 2014. Part II of the Code governs workplace health and safety for employers and employees in industries under federal jurisdiction, such as banking, telecommunications, and interprovincial and international road transportation. The Order claims that these changes will let the Labour Program better focus its attention on critical issues affecting the health and safety of Canadian workers, while improving the quality and con­sistency of the decisions made by the Labour Program. Here’s an overview of the key changes.

KEY CHANGES

Definition of Danger: As of Oct. 31, Sec. 122(1) of the Code will define “danger” to mean 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 definition was intended to ensure that work refusals concern situations where a worker is faced with an imminent or serious threat to their life or health, not potential or speculative threats. The prior definition of “danger”—any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that’s likely to result in a chronic illness, in disease or in damage to the reproductive system—was much broader and didn’t have an immediacy or seriousness component.

Work Refusal Process: The definition of “danger” is a key element of the unsafe work refusal process, which will also change. A worker may refuse unsafe work if he has reasonable cause to believe that using machinery or a thing, performing an activity, or the presence of a condition constitute a danger to himself or co-workers. After Oct. 31, if a worker exercises his right to refuse, the employer must immediately investigate the matter in the worker’s presence. After the investigation is done, the employer must prepare a written report on its results. If the employer agrees that there’s a danger, it must take steps to address that danger. If the employer disagrees, the worker may continue his refusal and report the refusal to the JHSC, which must investigate and issue a written report on its investigation’s findings and any recommendations. If the employer disagrees with the JHSC’s conclusions and the worker continues the work refusal, the employer must now report it to the Minister of Labour. The Order explains that the purpose of changing this process was to ensure that employers and workers assess and address safety issues effect­ively, efficiently and in a collaborative manner before involving the Labour Program. (Why the focus on efficiency? According to the government, more than 80% of work refusals from 2003 to 2013 were determined—even after appeals—to be situations involving no danger.)

ANALYSIS

Most Canadian workplaces are regulated by provincial or territorial OHS law. But about 1.2 million employees work in workplaces covered by federal OHS law. So these changes will impact a sizable number of workers and employers. And they were criticized by some when they were first proposed in Bill C-4. For example, the Canada Labour Congress claimed that the new definition of “danger” is watered down and endangers workers and, taken with the new work refusal process, limits the right to refuse dangerous work. But the new federal approach is similar to and consistent with the one used in other jurisdictions in Canada. (See, “WORK REFUSALS: Answers to 10 Frequently Asked Questions.)