Changes to the Canada Labour Code have come into effect October 31, 2014. The Atlantic Provinces Trucking Association’s Transportation Summit had two employees from the Federal Labour Program speak to attendees about what they can expect from the program going forward.
The labour code has been amended to add a clearer definition of “danger” and change the process of how a work refusal is dealt with, confirmed Nathalie Lemay and Lorna MacMillan of the Labour Program.
Starting on Oct. 31, “danger” is now defined by the Labour Program as “when employees are facing an imminent or serious threat to their life or health.” Lemay says danger in the workplace will no longer be a question of perception.
“Starting (Oct. 31) when my officers are going to be doing inspections, when they look at a danger in the workplace they will be looking at if the danger is imminent,” she said.
Under the old approach, explain MacMillan, if an employee felt they were in danger at the workplace, they would go to their manager/supervisor and tell them they were refusing to work because of this danger. The employer would then have to do an assessment of that perceived danger and inform the Health and Safety Committee and an investigation would then take place with the employer and committee member present. At the end of the investigation, the employee would then be notified if either 1) a danger was found and would soon be rectified or 2) the employer holds the opinion that there is no danger and the employee would be told to return to work. If the employee was told to return to work but still felt they were in danger, they would launch a continued work refusal. At that point, the Labour Program would be contacted by the employer and would step in to investigation using the Canada Labour Code. At the end of that investigation, a Health and Safety Officer would determine if there was a danger or not and then measure to address the situation would occur – either the employer has to fix the danger or the employee has to return to work. The decision could be appealed by either party.
The new process was explained by Lemay. She said that employers now launch their own investigation once an employee refuses to work because of a danger in the workplace. The investigation needs to be documented by a written report. If the employee is not satisfied with the result of the written report, the matter is handed over to the Health and Safety Committee. An investigation will be launched by the committee and a report is written. The decision on whether or not the danger is imminent is decided upon and either the employer has to make a change or the employee has to return to work. If the employee is unsatisfied with the decision, they must go to the Labour Program and say they have a continued refusal.
The Labour Program is going to have more flexibility with the changes , said Lemay. Starting Oct. 31, the Labour Program has the right to decide whether or not they investigate once a continued refusal comes to their attention.
“If we find that (the dispute) should be resolved by another piece of legislation or (the refusal was made) trivial or in bad faith, we might decide not to investigate,” said Lemay. “In the past we had to investigate everything, now we might not investigate at all.”
In addition, officers no longer have to go on site for investigations because of the plentiful information provided in a detailed written report from the employer and/or if a previous decision on a similar refusal can be looked at as a sort of precedent.
1. If the refusal to work escalates to the Labour Program and they decide to investigate the matter on or off site, one of three conclusions would be reached:
2. There is a danger and the employer is given direction on how to fix this danger (Employers can appeal)
3. There is a danger but it’s part of the normal condition of employment (such as truck drivers driving on winter roads)
4. There is no danger and the employee had to go back to work.
Lemay said the changes were made to both speed up the investigation process for employers as well as to promote internal resolution between the employer and the employee.
“One of the major focuses of the code now is the internal resolution system,” said Lemay. “That means before we get involved the employers and employees work it out together. They get to resolve the issue before we step in.”
