THE EMPLOYERS' EDGE
Safety First: Work Stoppage Procedures under the Occupational Health and Safety Act
The Occupational Health and Safety Act (OHSA) provides for two procedures that allow for the stoppage of work in response to health and safety concerns. The first, is a “work refusal”, which can be initiated by an employee or employees. The second is a “bilateral work stoppage”, which can only be initiated by a certified member of a joint health and safety committee where “dangerous circumstances” exist in the workplace. While any work refusal or bilateral stoppage should be assessed on its own facts, the general procedures are as follows.
Section 43 of the OHSA provides the process for a work refusal as follows:
An employee may refuse to perform work where they have reason to believe that:
(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;
(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself;
(b.1) workplace violence is likely to endanger himself or herself; or
(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.
- Upon refusing, the worker must promptly report the refusal to the employer (s 43(4));
The employer must immediately investigate in the presence of the worker, and, if any,
(a) a committee member who represents workers,
(b) a health and safety representative, or
(c) a worker selected by the trade union that represents the worker, or if there is no union, is selected by the workers to represent them (s 43(4));
- Until completed, the worker must remain in a safe place that is as near as reasonably possible to the workstation, or available to the employer for the purposes of the investigation (s 43(5));
- If, following the investigation or response from the employer, the worker has reasonable grounds to believe that it is still unsafe, then the refusal may continue and the employer, the worker, or a person on behalf of the employer or worker must notify an inspector (s 43(6));
- The inspector will investigate the refusal in consultation with the relevant parties (s 43(7));
Pending the inspector’s investigation and decision, the worker, during normal working hours, must remain in a safe place and available for the purposes of the investigation (s 43(10);
- During this time, subject to collective agreement language, an employer may (a) assign the worker reasonable alternative work, or, where that is not practical and subject to the no reprisal language of OHSA, give other reasonable directions (s 43(10.1))
Pending the inspector’s investigation and decision, no worker can be assigned to use or operate the equipment, machine, device or thing or to work in the area being investigated unless the worker has been advised of the refusal and the reasons therefore in the presence of:
(a) a committee member who represents workers and, if possible, who is a certified member;
(b) a health and safety representative; or
(c) a worker who because of his or her knowledge, experience and training is selected by the trade union that represents the worker or, if there is no trade union, by the workers to represent them (s 43(11) & (12)).
- Following their investigation, the inspector will decide whether the circumstances leading to the refusal are likely to endanger the worker or another person (s 43(8));
- The inspector’s decision will be provided in writing as soon as is practicable to the employer, the worker, and if applicable, the person mentioned in step two above (s 43(9)).
Bilateral Work Stoppage
In addition to the work refusal provisions, sections 44 - 46 of the OHSA provide procedures for a bilateral work stoppage where “dangerous circumstances” exist in the workplace. Under s 44 of the OHSA:
“dangerous circumstances” means a situation in which,
(a) A provision of [OHSA] or the regulations is being contravened,
(b) The contravention poses a danger or a hazard to a worker, and
(c) The danger or hazard is such that any delay in controlling it may seriously endanger a worker.
The process for a bilateral work stoppage is similar to that of a standard work refusal, except the process is initiated by a “certified member” (CM) of the joint health and safety committee. The process provides:
- That a CM who has reasons to believe that “dangerous circumstances” exist may request that a supervisor investigate promptly and to be present for the investigation (s 45(1));
- The CM may request a second CM representing the other workplace party investigate if the original CM has reason to believe the dangerous circumstances persist (s 45(2));
- The second CM shall promptly investigate in the presence of the first CM (s 45(3));
If both CMs find that dangerous circumstances exist, then they may direct the employer to stop the work or the use of any part of a workplace or of any equipment, machine, device, article or thing and the employer must immediately comply (s 45(4) & (5));
- After taking steps to remedy the situation, the employer may request cancellation of the direction, and the CMs may do so jointly (s 45(7) & (8))
If the CMs do not agree about whether dangerous circumstances exist, either may request an investigation by an inspector and the inspector must provide a written decision (s 45(6));
- After taking steps to remedy the situation, the employer may request the inspector to cancel any direction given by the inspector (s 45(7) & (8))
If you are faced with a work refusal, bilateral work stoppage or have questions about the procedures described above, the lawyer’s at CCPartners are available to assist you. Click HERE for a link to CCP’s COVID-19 Blog series, catch our webinars and podcasts on YouTube and SoundCloud or wherever you listen to podcasts, or contact any of our team members to answer you workplace questions.