This directive is deemed to be part of collective
agreements between the parties to the National Joint Council
(NJC) and employees are to be afforded ready access to this
directive.
In cases of alleged misinterpretation or misapplication arising out of this directive, the grievance procedure, for all represented employees, within the meaning of the
Public Service Labour Relations Act, will be in accordance with Section 14.0 of the
National Joint Council By Laws. For unrepresented employees, the departmental grievance procedure applies. (revised April 1, 2005)
This directive is effective on
January 1, 1994.
This directive incorporates the minimum requirements of the Canada Labour
Code, Part II and applies to all departments and other portions of the Public Service, as defined in Schedules I and IV of the
Financial Administration Act. (revised April 1, 2005)
In this directive:
danger (danger) means any
hazard or condition that could reasonably be expected to cause
injury or illness to a person exposed thereto before the hazard
or condition can be corrected;
safety and health committee
(comité de sécurité et de santé) means a committee
established pursuant to the Committees and Representatives
directive;
safety and health representative
(représentant pour la sécurité et la santé) means a person
appointed as a safety and health representative pursuant to the
Committees and Representatives directive;
safety officer (agent de
sécurité) means a person designated as a safety officer
pursuant to the Canada Labour Code, Part II, and includes
a regional safety officer;
work place (lieu de travail)
means any place where an employee is engaged in work for the
employee's department.
19.1 General
19.1.1 Where an employee, while at work, has
reasonable cause to believe that:
- the use or operation of a machine or thing constitutes a
danger to the employee or another employee; or
- a condition exists in any place that constitutes a danger to
the employee,
the employee may refuse to use or operate the
machine or thing or to work in that place.
19.1.2 An employee may not, pursuant to this
directive, refuse to use or operate a machine or thing, or to
work in a place where:
- the refusal puts the life, health or safety of another person
directly in danger; or
- the danger referred to in 19.1.1 is inherent in the
employee's work or is a normal condition of employment.
19.1.3 For purposes of 19.1.2(b), "inherent in
the employee's work" means employment risks normally related to a
specific task, trade or occupation. In such cases, an employee
shall be qualified, through knowledge, training and experience,
to perform the assigned work and wear or use the prescribed
safety materials, equipment, devices and clothing.
19.2 Employees on ships and aircraft
19.2.1 Where an employee on a ship or an aircraft
that is in operation has reasonable cause to believe that:
- the use or operation of a machine or thing on the ship or
aircraft constitutes a danger to the employee or another
employee; or
- a condition exists in a place on the ship or aircraft that
constitutes a danger to the employee,
the employee shall forthwith notify the person in
charge of the ship or aircraft of the circumstances of the danger
and the person in charge shall, as soon as practicable
thereafter, having regard to the safe operation of the ship or
aircraft, decide whether or not the employee may discontinue the
use or operation of the machine or thing or to work in that place
and shall inform the employee accordingly.
19.2.2 An employee who, pursuant to 19.2.1, is
informed that he or she may not discontinue the use or operation
of a machine or thing or to work in a place shall not, while the
ship or aircraft on which he or she is employed is in operation,
refuse, pursuant to this directive, to operate the machine or
thing or to work in that place.
19.2.3 For the purposes of 19.2.1 and 19.2.2:
- a ship is in operation from the time it casts off from a
wharf in any Canadian or foreign port until it is next secured
alongside a wharf in Canada; and
- an aircraft is in operation from the time it first moves
under its own power for the purpose of taking off from any
Canadian or foreign place of departure until it comes to rest at
the end of its flight to its first destination in Canada.
19.3 Reporting
19.3.1 Where an employee refuses to use or
operate a machine or thing or to work in a place pursuant to
19.1.1, or is prevented from acting in accordance with 19.2.2,
the employee shall forthwith report the circumstances of the
matter to his or her supervisor, or to the person in charge, and
to:
- a member of the safety and health committee, if any,
established for the work place affected; or
- the safety and health representative, if any, appointed for
the work place affected.
19.3.2 A department shall forthwith, on receipt
of a report under 19.3.1, investigate the report in the presence
of the employee who made the report and in the presence of:
- at least one member of the safety and health committee, if
any, to which the report was made under paragraph 19.3.1, who
does not exercise managerial functions;
- the safety and health representative, if any; or
- where no safety and health committee or safety and health
representative has been established or appointed for the work
place affected, in the presence of at least one person selected
by the employee.
19.4 Continuing refusal
19.4.1 Where a department disputes a report made
to it by an employee pursuant to 19.3.1, or where the department
takes steps to make the machine or thing or the place safe in
respect of which such report was made, and the employee has
reasonable cause to believe that:
- the use or operation of the machine or thing continues to
constitute a danger to the employee or another employee; or
- a condition continues to exist in the place that constitutes
a danger to the employee,
the employee may continue to refuse to use or
operate the machine or thing or to work in that place and the
department and the employee shall each notify a safety officer
that there is a refusal under the Canada Labour Code.
19.5 Investigation by a safety officer
19.5.1 An investigation by a safety officer, and
the subsequent decision of the safety officer, will be pursuant
to Section 129 of the Canada Labour Code and therefore not
part of this directive and not grievable.
19.6 Continued work
19.6.1 Prior to the investigation and decision of
a safety officer:
- the department may require that the employee concerned remain
at a safe location near the place in respect of which the
investigation is being made or assign the employee reasonable
alternate work; and
- the department shall not assign any other employee to use or
operate the machine or thing or to work in that place pending
resolution of the situation.
19.7 Safety officer direction
19.7.1 Where a safety officer decides pursuant to
Section 129 of the Canada Labour Code that there is a
situation of danger, and issues a direction in respect to that
danger, an employee may continue to refuse to use or operate the
machine or thing or to work in that place until the safety
officer's direction is complied with or until it is varied or
rescinded.
19.7.2 Where a safety officer decides that the subject of the refusal to work does not constitute a danger, the employee is not entitled under this directive or the
Canada Labour Code to continue to refuse to work, if an employee does not agree with the decision, sub-section 129(5) of the Code provides a mechanism for the employee to require the safety officer to refer that decision to the Public Service Labour Relations Board. (revised April 1, 2005)
19.8 Compensation
19.8.1 The fact that a department or employee has
complied with or failed to comply with any of the provisions of
this directive shall not be construed to affect any right of an
employee to compensation under any statute relating to
compensation for employment injury, or to affect any liability or
obligation of any department or employee under any such
statute.
19.9 General prohibition
19.9.1 No department shall discharge, suspend,
lay off or demote an employee or impose any financial or other
penalty on an employee or refuse to pay the employee remuneration
in respect of any period of time that the employee, but for the
exercise of his or her rights under this directive, would have
worked, or take any disciplinary action against, or threaten to
take such action against an employee because that employee:
- has testified or is about to testify in any proceeding taken
or inquiry;
- has provided information to a person engaged in the
performance of duties regarding the conditions of work affecting
the safety or health of that employee or any of his or her fellow
employees; or
- has acted in accordance with this directive or has sought the
enforcement of any of the provisions of this directive.
19.10 Right to complain
19.10.1 In addition to the redress procedures under this directive, Section 133 of the
Canada Labour Code provides a mechanism for an employee to complain to the Public Service Labour Relations Board that the department contravened provisions of the Code similar to those contained in paragraph 19.9. (revised April 1, 2005)
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