Chapter 2-19 - Refusal to Work Directive

Title: 

Refusal to Work Directive (Chapter 2-19)*
Treasury Board Manual - Occupational Safety
and Health

Author/Information: 

Human Resources Branch
Treasury Board Secretariat
Telephone: (613) 957-2400

Last Revision: May 8, 1995

Alternative Formats: This publication is available in alternative formats.

This Directive was developed in partnership by employer and bargaining agent representatives at the National Joint Council. Its provisions form part of the collective agreements of the participating parties under the By-Laws of the National Joint Council. The provisions also apply to persons not covered by collective agreements as indicated in the Directive or by employer policy.

For more information on the National Joint Council, visit their web site at
http://www.njc-cnm.gc.ca.

Note: You will require Internet capability to access the above site.

Table of Contents

General

Collective agreement

Grievance procedure

Effective date

Application

Definitions

Requirements

General

Collective agreement

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.

Grievance procedure

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)

Effective date

This directive is effective on January 1, 1994.

Application

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)

Definitions

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.

Requirements

19.1 General

19.1.1 Where an employee, while at work, has reasonable cause to believe that:

1. the use or operation of a machine or thing constitutes a danger to the employee or another employee; or
2. 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:

1. the refusal puts the life, health or safety of another person directly in danger; or
2. 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:

1. the use or operation of a machine or thing on the ship or aircraft constitutes a danger to the employee or another employee; or
2. 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:

1. 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
2. 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:

1. a member of the safety and health committee, if any, established for the work place affected; or
2. 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:

1. 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;
2. the safety and health representative, if any; or
3. 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:

1. the use or operation of the machine or thing continues to constitute a danger to the employee or another employee; or
2. 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:

1. 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
2. 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:

1. has testified or is about to testify in any proceeding taken or inquiry;
2. 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
3. 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)

Date Modified: 2005-04-15