8. The Right to Stop Work
The Occupational Health and Safety Act allows dangerous work to be stopped.
In most cases, it takes two certified members to direct an employer to stop dangerous work (joint stoppage). One must be a certified member representing workers; the other, a certified member representing the employer. In some special cases, a single certified member may have this right. This chapter explains how and when work can be stopped.
Dangerous Circumstances
Work can be stopped only in "dangerous circumstances" [section 44(1)]. This means a situation in which all of the following are true:
- the Act or the regulations are being contravened; and
- the contravention poses a danger or a hazard to a worker; and
- any delay in controlling the danger or hazard may seriously endanger a worker.
Limitations on the Right to Stop Work
The right to stop dangerous work does not apply to police, firefighters or those employed in correctional institutions [section 44(2)(a)].
The right to stop work does not apply to the following types of workplaces if a work stoppage would directly endanger the life, health or safety of another person [section 44(2)(b)]:
- hospitals, nursing homes, psychiatric institutions, rehabilitation facilities or similar institutions;
- residential group homes for persons with physical, mental or behavioural handicaps;
- ambulance services or first-aid clinics or stations;
- medical testing laboratories;
- any laundry, food service, power plant or technical service or facility used by one of the above.
See section 43(2)(d) of the Act for a complete list of workplaces.
Joint Right to Stop Work
If a certified member has reason to believe that dangerous circumstances exist, he or she may ask a supervisor to investigate. The supervisor must do so promptly and in the presence of the certified member who made the request. This certified member may be one representing either the workers or the employer [section 45(1)].
What happens if the certified member is not satisfied with the supervisor's investigation?
If the certified member believes that dangerous circumstances still exist, he or she may ask another certified member to investigate [section 45(2)]. The second certified member must do so promptly and in the presence of the first certified member [section 45(3)].
The second certified member must represent the other workplace party. For example, if the first certified member represents workers, the second must represent the employer.
In prescribed instances, a certified member who represents the employer but who is not available at the workplace may designate another person to act for him or her in a situation involving dangerous circumstances [section 45(9)].
What happens if both certified members agree that dangerous circumstances exist?
The certified members can direct the employer to stop the work or to stop using any part of the workplace or any equipment, machinery, tools, etc. [section 45(4)].
The employer must do so immediately, in a way that does not endanger anyone [section 45(5)].
After taking steps to remedy the dangerous circumstances, the employer can request the certified members who issued the stop-work direction, or an inspector, to cancel it [section 45(7)]. Only the certified members who issued the direction can jointly cancel it, unless a ministry inspector cancels it [section 45(8)].
What if the certified members do not agree with each other that dangerous circumstances exist?
If the certified members disagree, work cannot be stopped. However, either certified member may ask a ministry inspector to investigate. Following the investigation, the inspector will give a written decision to both certified members [section 45(6)].
Individual Right to Stop Work
The Act permits an individual certified member, in special cases, to stop work in dangerous circumstances. This individual right to stop work is granted by the Ontario Labour Relations Board.
Application to the Ontario Labour Relations Board (OLRB)
If any certified member in the workplace, or a ministry inspector has reason to believe that the joint right to stop work will not be sufficient to protect the workers from serious risk to their health or safety, he or she may apply to the OLRB for a declaration against the employer [section 46(1)].
Role of the OLRB
The OLRB must determine if the employer has failed to protect the health and safety of workers. In making a finding, the OLRB is guided by criteria that are prescribed in the Regulation respecting Unilateral Work Stoppage, O. Reg. 243/95 [section 46(6)].
If the OLRB finds that the procedure for joint stoppage of dangerous work is not sufficient to protect the workers, it may do one or both of the following:
- declare that the employer is subject to the procedure for individual stoppage of dangerous work (explained below) for a specified period [section 46(5)(a)];
- recommend to the minister that an inspector be assigned, for a specified period, to oversee the health and safety practices of the employer. The inspector can be assigned on a part-time or full-time basis [section 46(5)(b)].
If an inspector is assigned to a workplace, the employer must reimburse the government for the wages, benefits and expenses of the inspector [section 46(8)].
The decision of the OLRB on an application is final [section 46(7)].
Procedure for the Individual Right to Stop Dangerous Work
This procedure applies to an employer against whom the OLRB has issued a declaration. It also applies to an employer who has advised the joint committee, in writing, that he or she voluntarily adopts the following procedure [section 47(1)].
If a certified member finds that dangerous circumstances exist, he or she can direct the employer to stop work or to stop using any part of the workplace or any equipment, machinery, tools, etc. [section 47(2)].
The employer must do so immediately, in a way that does not endanger anyone [section 47(3)]. After stopping the work, the employer must promptly investigate, in the presence of the certified member [section 47(4)].
After taking steps to remedy the dangerous circumstances, the employer can ask the certified member, or an inspector, to cancel the direction [section 47(6)].
What happens if the certified member and the employer do not agree that dangerous circumstances exist?
In such a case, either party may ask an inspector to investigate. After conducting the investigation, the inspector will issue a written decision [section 47(5)].
Either the certified member or an inspector can cancel a stop-work direction [section 47(7)].
Responsible Use of the Right to Stop Work
Certified members are accountable for the responsible use of their authority to stop work in dangerous circumstances. They may be named in a complaint to the OLRB that they recklessly or in bad faith exercised, or failed to exercise, their power to stop dangerous work.
Who may make a complaint about a certified member?
Any worker in the workplace, an employer or a representative of the union (if there is one) can file a complaint about a certified member [section 49(1)]. The complaint must be filed not later than 30 days after the event that is the subject of the complaint [section 49(2)].
For example, an employer might complain to the OLRB about a worker certified member who refuses to agree with the employer certified member to cancel a stop-work direction after adequate remedial action has been taken. Or a union representative may complain that an employer certified member refused to agree to a stop-work direction in circumstances that were clearly dangerous. In either case, the complaint goes directly to the OLRB.
What can the OLRB decide?
The OLRB decides whether the complaint is valid and can make any order that it considers appropriate. This decision could include an order to de-certify the certified member [section 49(4)]. The decision of the OLRB is final [section 49(5)].
Are certified members paid while carrying out their duties?
The time spent by a certified member in carrying out duties is considered worktime. This includes any time spent in a stop-work situation or a work refusal. The certified member must be paid by the employer at the applicable rate [section 48(2)].
Can a certified member be disciplined by the employer?
Certified members are protected from employer reprisals in exactly the same way as workers who refuse unsafe work. If the member has acted in compliance with, or has sought the enforcement of, the Act or regulations, or has given evidence in a proceeding about the enforcement of the Act, he or she is protected from employer reprisals of any kind.
