Health and Safety

BILL C-12
Amendments to the Canada Labour Code, Part II

Bill C-12, an act to amend the Canada Labour Code, Part II, received royal assent on June 29, 2000 and proclamation on September 30, 2000. Seven long years have passed since the we first started working on proposed amendments to the Canada Labour Code, Part II.

The PSAC played a leadership role on the legislative review committee where hundreds of proposals were put forth by labour, management and government representatives. These proposed changes were achieved after extensive discussions and most of the items were reached by consensus.

The Bill introduces many significant amendments to the Code. Its purpose is to realign responsibilities for workplace health and safety, placing a greater onus on employers and workers to work together to ensure a healthy and safe work environment. It also modernizes existing requirements, and provides a more favourable regulatory framework for the shift in onus to occur. Finally, the amendments will ensure that workplace health and safety concerns, on the whole, are identified and resolved in a more flexible and timely manner.
The key components of the Bill are described below and many of them represent significant union gains in health and safety.

New Title

We will be using the expression "health and safety" throughout the legislation. The purpose of this amendment was to place a greater emphasis on workplace health issues and to make the english expression more consistent with the commonly used French expression "santé et sécurité".

New Definition of "Danger"

The definition of "danger" has been expanded to include any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person.

Two new concepts are introduced:

• "potential hazard or condition" and

• "any current or future activity".

The addition of "current or future activity" as a potential source of danger is an important gain. This should bring about a more liberal interpretation of what constitutes a "danger" in the workplace since the existing jurisprudence which was used in determining what constituted "danger" will no longer be valid as a guide for future cases.

The addition of "potential hazard or condition" should also have a positive impact as "danger" should no longer be restricted to the concept of "immediate danger" which was always an obstacle when exercising the right to refuse dangerous work. The present definition still requires a reasonable expectation of an injury or illness before the hazard or condition can be corrected, or the activity altered (s.122(1)).

Preventive Measures - Hierarchy of Controls

Section 122(2) establishes a new concept of "Hierarchy of Controls" when dealing with health and safety controls in the workplace. This is a significant gain as this represents the resolution of a long standing conflict between employers and labour representatives over whether the "hierarchy of controls" should be a legislated requirement.

From the workers’ point of view, not all workplace controls are equal. Those controls which focus on the source of the hazard - elimination, substitution or isolation of the hazard - are generally the most effective means of preventing and controlling worker exposure. Where possible, controls at the source should be a union priority.

The priorities of employers, however, usually work in reverse. Management frequently believes it is cheaper or easier to control workers rather than control the hazard at the source. In dealing with management, the union strategy should be to try wherever possible to achieve controls from the top of the hierarchy.

Control at the source

• elimination of the hazard

• substitution of less dangerous material

• process redesign

• isolation or total enclosure

Control along the path

• local ventilation

• special methods

• better housekeeping

• general ventilation

Control at the worker

• personal protective equipment

• administrative controls

• rotating workers in a dangerous job

• medical monitoring

Establishment of Mandatory Policy Health and Safety Committees

Under section 134.1 of the Code, every employer who normally employs directly 300 workers or more is required to establish a policy health and safety committee. The purpose of the policy committee is to ensure that health and safety issues are addressed at the corporate level. This is the focal point of the federal jurisdiction’s approach to the internal responsibility system and a commitment to joint decision making. These committees can be very powerful since their decisions and actions could have a considerable impact in their respective workplaces.

The policy health and safety committee has a number of duties, including the following:

• to participate in the development of health and safety policies and programs (s.134.1(4)(a));

• to consider and expeditiously dispose of matters concerning health and safety raised by members or referred to it by a workplace committee or a health and safety representative (s.134.1(4)(b));

• to participate in the development and monitoring of a prevention program that also provides for the education of workers in health and safety matters (s.134.1(4)(c));

• to monitor data on work accidents, injuries and health hazards (s.134.1(4)(g));

• to participate in the planning of the implementation and in the implementation of changes that might affect occupational health and safety (s.134.1(4)(h)).

The policy committee also has certain powers, such as requesting from an employer any information it considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities in any of the employer’s workplaces (s.134.1(5));  and having full access to all government and employer reports, studies and tests relating to the health and safety of workers in the workplace; however, access to medical records will require the person’s consent (s.134.1(6)).

The policy committee meets during regular working hours at least quarterly (four times every year) and, if other meetings are required as a result of an emergency or other special circumstances, the committee will meet as required during regular working hours or outside those hours (s.134.1(7)).

Enhancement of the Powers and Functions

• Workplace Health & Safety Committees and Representatives

The duties of a workplace health and safety committee and health and safety representative have been greatly expanded. They include, for example, the following:

• to participate in the implementation and monitoring of a program for the prevention of hazards in the workplace that also provides for the education of workers in health and safety matters (s.135(7)(c));

• to assist the employer in investigating and assessing the exposure of workers to hazardous substances (s.135(7)(j));

• to inspect each month all or part of the workplace, so that it is inspected in its entirety at least once each year (s.135(7)(k)).

The provisions relating to health and safety representatives have been modified so that a representative is appointed in each workplace at which fewer than 20 workers are normally employed or for which an employer is not required to establish a workplace health and safety committee (s.136(1)).

A workplace committee or health and safety representative may request from an employer in respect of the workplace any information that the committee or representative considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities (s.135(8) and s.136(6)).

Common Provisions: Policy Committees & Workplace Committees

There are a few changes to the selection process of committee members. Of importance is the fact that members are to be selected by their union, in consultation with any workers who are not represented by any union (s.135.1(1)).

Of special interest is section 135.1(2) which states that the members of a policy committee may include persons who are not workers. This was added to allow, with the agreement of the parties, union officials who are not workers to be appointed as committee members. This provision is primarily aimed at policy committees where their expertise could be an asset.

Important new union responsibility

If the union fails to select a person to sit on the committee, a health and safety officer will notify in writing the local branch of the union, and will send a copy of the notification to the union’s national headquarters and to the employer, indicating that the committee is not established until a person is selected (s.135.1(4)).

If no person is selected, the employer will perform the functions of the committee until a person is selected and the committee is established (s.135.1(5)).

Important gains for committee members

The members of the committee are entitled to take the time required, during their regular working hours, to attend meetings or to perform any of their other functions, to prepare for the next meeting and for travel. Authorization by both chairpersons of the committee is required (s.135.1(10)).

Committee members are to be compensated by the employer for their many functions, whether performed during or outside the member’s regular working hours (s.135.1(11)).

Although listed under the specific duties of the employer, the employer must ensure the availability in the workplace of premises, equipment and personnel necessary for the operation of the policy and workplace committees (s.125(1)(z.07)).

Specific Duties of Employer

The specific duties of the employer have been significantly increased and are no longer restricted to workplaces controlled by the employer. They also apply to every work activity carried out by a worker in a workplace that is not controlled by the employer, to the extent that the employer controls the activity. Activities performed outside of the workplace and third party premises should now be covered (s.125(1)).

They include, among others, the following:

(note: the word "prescribed" means prescribed by regulation or determined in accordance with rules prescribed by regulation.)
make readily available to workers for examination, in printed or electronic form, a copy of the regulations (s.125(1)(e));

• to ensure that the workplace, work spaces, procedures as well as machinery, equipment and tools used by the workers meet prescribed ergonomic standards (s.125(1)(t) and s.125(1)(u));

• to ensure that members of policy and workplace committees and health and safety representatives receive the prescribed training in health and safety (s.125(1)(z.01));

• to respond as soon as possible to reports made by the workers (s.125(1)(z.02));

• to ensure the availability in the workplace of premises, equipment and personnel necessary for the operation of the policy and workplace committees (s.125(1)(z.07));

• to cooperate with the policy and workplace committees in the execution of their duties (s.125(1)(z.08));

• to develop health and safety policies and programs in consultation with the committee (s.125(1)(z.09));

• to respond in writing to recommendations made by committees within thirty days after receiving them, indicating what action, if any, will be taken and when it will be taken (s.125(1)(z.10));

• to provide to the committee a copy of any report on hazards in the workplace, including an assessment of those hazards (s.125(1)(z.11));

• to ensure that the committee inspects each month all or part of the workplace, so that every part is inspected at least once each year (s.125(1)(z.12));

• to investigate and assess worker exposure to hazardous substances in the manner prescribed, with the assistance of the committee (s.125.1(f)).

New Canada Occupational Health and Safety Regulations

Since many of the specific duties of the employer refer to prescribed standards, new regulations are being developed which will specify the legal requirements of employers on those standards.

For example, section 125(1)(z.03) and section 125(1)(z.04) call for a new prevention program regulation. The purpose of the regulation will be to establish a process for workplace parties in dealing with health and safety hazards before an injury or illness occurs. An education program within the prevention program regulation will also address specific training needs. The regulation is already being drafted with the full participation of the PSAC.

In response to the growing problem of workplace violence, section 125(1)(z.16) was added and requires the employer to take the necessary prescribed steps to prevent and protect against violence in the workplace. A new regulation is being drafted with the full participation of the PSAC.

Since sections 125(1)(t) and (u) refers to a prescribed ergonomic standards which will allow us to deal with ergonomic issues in the workplace, we will need to develop a new ergonomic regulation for the federal jurisdiction. We will continue to pressure the government to start working on this new regulation.

There is also an obvious need to update the current Safety and Health Committees and Representatives Regulations. We will also pressure the government to start reviewing this existing regulation.

New Duty for Workers

Under section 126(1)(j), every worker must report to the employer any situation that he/she believes to be a contravention of Part II of the Code by the employer, another worker or any other person. The employer is required to respond (see s.125(1)(z.02)) and a health and safety officer should intervene if a worker complains that the employer is not responding. Clearly worker complaints must be responded to and, more importantly, acted upon.

Creation of an Internal Complaint Resolution Process

An innovative internal complaint resolution process is established in section 127.1 by which the parties can address and attempt to resolve their workplace health and safety problems.

This internal occupational health and safety complaint resolution process will have to be used before other recourses available under Part II of the Code, except for the right to refuse dangerous work and the right of pregnant or nursing workers to temporarily withdraw from dangerous work. The process will include the following main steps:

Step 1: A worker who believes on reasonable grounds that there has been a contravention to the Code or that there is likely to be an accident or injury to health makes a complaint to the supervisor (s.127.1(1));

Step 2: The worker and the supervisor must attempt to resolve the complaint between themselves as soon as possible (s.127.1(2));

Step 3: Referral of an unresolved complaint on the initiative of either of them to a chairperson of the workplace committee to be investigated jointly (s.127.1(3));

Step 4: The persons who investigate the complaint must inform the worker and the employer in writing of the results of the investigation (s.127.1(4));

Step 5: The persons who investigate the complaint may make recommendations to the employer with respect to the situation that gave rise to the complaint, whether or not they conclude that the complaint is justified (s.127.1(5));

Step 6: If the complaint is found to be justified, the employer must in writing and without delay inform the persons who investigated of how and when it will resolve the matter and must take appropriate action (s.127.1(6));

Step 7: If the persons who investigate the complaint conclude that a danger exists, the employer must ensure that no worker is exposed to that danger until the situation is rectified (s.127.1(7));

Step 8: The worker or employer may refer a complaint to a health and safety officer in the following circumstances (s.127.1(8)):

(a) the employer does not agree with the results of the investigation;

(b) the employer has failed to take action to resolve the matter or to inform the persons who investigated the complaint of how and when it intends to proceed; or

(c) the persons who investigated the complaint do not agree as to whether the complaint is justified.

Step 9: The health and safety officer must investigate the complaint (s.127.1(9));

Step 10: After the investigation, the health and safety officer (s.127.1(10)):

(a) can issue directions to an employer or worker;

(b) can recommend that the employer and worker resolve the matter between themselves; or

(c) if the officer concludes that a danger exists, he/she must issue directions.

Right to Refuse Dangerous Work

A number of changes were made to section 128 which deals with the right to refuse dangerous work.

You can still refuse to work if you have reasonable cause to believe that something constitutes a danger to yourself or another worker or if a condition exists that constitutes a danger to yourself (s.128(1)(a) and (b)). You can now refuse to work if you have reasonable cause to believe that the performance of the activity by a worker constitutes a danger to yourself or to another worker (s.128(1)(c)).

Refusals to work are still not permitted in certain dangerous circumstances. Those circumstances include when the refusal to work puts the life, health or safety of another person directly in danger (s.128(2)(a)); or when the danger is a normal condition of employment (s.128(2)(b)). The concept of certain tasks being inherently dangerous has long been a union concern. This concept will need to be redefined in light of the new definition of "danger".
If you have a collective agreement which includes right to refuse language, you have to choose which process you are electing to follow before you exercise your right to refuse dangerous work. Therefore, when a worker reports to the employer that he/she refuses to perform dangerous work, the worker has to inform the employer whether he/she intends to exercise recourse under an applicable collective agreement or Part II of the Code. The selection of recourse is irrevocable unless the employer and worker agree otherwise (s.128(7)).

A worker also has the right to select a person from the workplace to be present during an investigation by the employer when a union member of the workplace committee or the health and safety representative is not available (s.128(10)).

Wages and benefits.

Workers affected by a stoppage of work arising from the internal complaint resolution process, the right to refuse or a direction of a health and safety officer to an employer are presumed to be at work until work resumes or until the end of their shift. The same applies to workers who are due to work on the next scheduled work period or shift, unless they have been given at least one hour’s notice not to attend work (s.128.1(1) and (2)). An employer may assign reasonable alternative work to workers who are deemed to be at work (s.128.1(3)).

Workers who are paid wages or benefits under these provisions may be required by the employer to repay those if it is determined, after all avenues of redress have been exhausted by the workers who exercised the right to refuse, that they exercised these rights knowing that no circumstances warranted such action. The burden of proof is clearly on the employer to show that the workers knew that there was no reasonable cause to believe that a hazard constituted a danger (s.128.1(4)).

To exercise the right to refuse dangerous work, one must comply with the following procedure:

Step 1: Report without delay the refusal to the employer (s.128(6));

Step 2: Selection of a remedy: the collective agreement or Part II of the Code (s.128(7));

Step 3: If the employer agrees that a danger exists, the employer must take immediate corrective action and inform the committee (s.128(8));

Step 4: If the matter is not resolved, report the continued refusal to the employer and to the committee (s.128(9));

Step 5: Immediate investigation by the employer in the presence of the worker and of the union representative on the committee (s.128(10));

Step 6: If still unresolved, report the continued refusal to the health and safety officer (HRDC-Labour) (s.128(13)).

Note: the employer must inform the committee of any steps taken to protect workers from the danger (s.128(14)).

Investigation by the HRDC-Labour Health and Safety Officer

Once the HRDC-Labour health and safety officer is notified of the continued refusal to work, the following procedure must be followed:

Step 1:On being notified that the worker continues to refuse to work, the health and safety officer must investigate the matter in the presence of the employer, the worker and, in most cases, a union member of the workplace health and safety committee (s.129(1));

Step 2: On completion of the investigation, the health and safety officer must immediately give written notification of the decision on whether the danger exists (s.129(4));

Step 3: Before the investigation and decision of the health and safety officer, the worker may be asked to remain at a safe location nearby or be assigned reasonable alternative work (s.129(5);

Step 4: If the health and safety officer decides that the danger exists, a directions must be issued and the worker may continue to refuse until the directions are complied with (s.129(6));

Step 5: If the health and safety officer decides that the danger does not exist, no continued refusal is allowed but the worker, or a person designated by the worker, can appeal the decision to an appeals officer within ten days (s.129(7)).

Pregnant and Nursing Workers

In addition to having the right to refuse dangerous work under Part II of the Code, a worker who is pregnant or nursing can cease, for a very short period, to perform her job with full pay and benefits if she believes that continuing any of her current job functions could pose a risk to her health or that of the foetus or child (s.132(1)).

The worker must consult with a qualified medical practitioner of her choice as soon as possible to establish whether there is such a risk (s.132(2)).

When a decision is made as to whether there is a risk or not, the worker can no longer cease to perform her job under these provisions (s.132(3)).

The employer can, in consultation with the worker, reassign her to another job that would not pose a risk to her health or to that of the foetus or child (s.132(4)).

During the period she ceases to perform her job under these provisions, the worker is considered to continue to hold the job and continues to receive the same wages and benefits, whether or not she has been reassigned to another job that does not pose the risk mentioned above (s.132(5)).

This section is only designed to cover a very short period extending from the moment when a pregnant or nursing worker believes she could be exposed to a dangerous workplace hazard and stops as soon as a medical certificate is issued by a qualified medical practitioner of her choice.

Coverage is then provided under sections 204, 205, 205.1 and 205.2 of the Canada Labour Code, Part III or the Treasury Board Policy, Chapter 13, Maternity-related Reassignment or Leave. The coverage provided under Part III of the Code and the Treasury Board Policy are limited to a right to job modification or reassignment to a safer job. If it is impossible to modify the job or reassign the pregnant or nursing worker, leave without pay is available.

The PSAC continues to pressure for improved protection for pregnant and nursing workers. There is still no commitment from the federal government in establishing a complete maternity protection regime similar to the one in Québec.

Complaint to the Board - Employer Action against Workers

Section 133 deals with worker complaints to the Canada Industrial Relations Board or the Public Service Staff Relations Board against an employer who has imposed disciplinary action on a worker after he/she exercised any right under the Code. The use of the protection awarded by this section is no longer restricted to the right to refuse or the investigation by the health and safety officer (s.128 or s.129).

In addition to the worker, any person designated by the worker can now file the complaint to the Board (s.133(1)). This will allow a union representative to file the complaint to the Board on behalf of the worker.

Section 133(6) clearly states that the burden of proof is imposed on the employer to satisfy the Board that its reasons for taking a particular action had nothing to do with the workers exercising their rights under the Code.

This section of the Code should be read in conjunction with section 147 (Disciplinary Action).

Health and Safety Officers

The new Code significantly enhances the powers of the HRDC-Labour health and safety officers.

They include, among others, the following:

• to take or remove, for testing, material or equipment if there is no reasonable alternative to doing so (s.141(1)(b));

• to direct any person not to disturb any place or thing for a reasonable period pending an examination, test, inquiry, investigation or inspection (s.141(1)(g));

• to direct the employer or a worker or a person designated by either of them to accompany the officer while the officer is in the workplace (s.141(1)(j)); and

• to meet with any person in private or, at the request of the person, in the presence of the person's legal counsel or union representative (s.141(1)(k)).

A health and safety officer can now issue a direction whether or not the officer is in the workplace at the time the direction is issued (s.141(2)).

A clear duty by the health and safety officer to investigate every death of a worker has been included in the Code (s.141(4)).

To ensure better communications, there is also a requirement on the health and safety officer to provide the employer and the workplace committee with a copy of the report within ten days after completing a written report on the findings of an inquiry or investigation (s.141(6)).

Inspections by the Heath and Safety Officer

A union member and an employer member of the workplace committee must accompany the health and safety officer when conducting an inspection of the workplace (s.141.1(1)(a)).

The inspection can proceed in their absence if they chooses not to be present (s.141.1(2)).

General Matters

No person can prevent a worker from providing information to an appeals officer or a health and safety officer (s.143.1).

No person can enter a workplace that is situated in a worker's residence without the worker's permission (s.143.2). This was done to protect the private dwelling of workers who choose to telework from their home.

Special Safety Measures

The power of the health and safety officer to issue a direction to terminate any ongoing contravention to any provision of the Code is still provided under section 145(1), and now includes recent contraventions also. This should address the problem expressed by many workers that the health and safety officer had to be present to witness the contravention for a direction to be issued.

In addition, a direction can be issued to take steps to ensure that the contravention does not continue or reoccur (s.145(1)(b)).

Appeals of Decisions and Directions

The regional safety officer is replaced by an appeals officer.

An employer, worker or union that feels aggrieved by a direction issued by a health and safety officer can appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing (s.146(1)). This is a significant increase of the previous time limit which was fourteen days.

The powers of the appeals officer have also been increased to not only vary, rescind or confirm the decision or direction but also to issue any direction that the appeals officer considers appropriate (s.146.1(1)).

Extensive additional powers and duties have been awarded to the appeals officer and they include, amongst others, the following:

• summon the attendance of witnesses and compel them to provide evidence under oath and to produce any documents and things that the officer considers necessary to decide the matter (s.146.2(a));

• examine records and make inquiries as the officer considers necessary (s.146.2(d));

• make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer’s opinion has substantially the same interest as one of the parties and could be affected by the decision (s.146.2(g));

• determine the procedure to be followed, while giving an opportunity to the parties to present evidence and make submissions (s.146.2(h));

• decide any matter without holding an oral hearing (s.146.2(i));
  order the use of a means of telecommunication that permits the parties and the officer to communicate with each other simultaneously (s.146.2(j)).

According to the Code, an appeals officer's decision is final and cannot be questioned or reviewed in any court (s.146.3). No order can be made, process entered or proceeding taken in any court to question, review, prohibit or restrain an appeals officer in any proceeding under the Code (s.146.4).

Both employers and labour representatives expressed serious concerns on the interpretation of this section. While we believe that, regardless of what is stated in this section, the Federal Court has jurisdiction, the appearance of total protection is disturbing and the Federal Court avenue may not be apparent to all who feel the appeals officer made an error.

PSSRB and CIRB

The appeals officer decision can no longer be appealed to the PSSRB or the CIRB. The only exception are complaints made under section 133 and 147 (Complaints When Action against Employees and Disciplinary Action).

Lost of wages when attending a proceeding

Finally, any worker who is a party to a proceeding, who attends at the proceeding, or who has been summoned by an appeals officer to attend, is entitled to be paid by the employer at the worker's regular rate of wages for the time spent at the proceeding that would otherwise have been time at work (s.146.5). In other words, if you would have been working during the proceedings, then you should be paid by the employer.

Appeal Process - Background Information

Originally, both employers and workers agreed that there should be a two-tier system for appeals in all cases, including discipline cases and appeals against health and safety officers’ directions. The first tier would be to the Appeals Officer and the second to the Canada Industrial Relations Board (CIRB). This procedure would allow easily resolvable issues to be dealt with at the first level, without the quasi-judicial procedure of the CIRB. The latter is necessary, however, so that all issues can be dealt with impartially and effectively, by a body external to HRDC-Labour. We envisaged a CIRB procedure similar to that laid down in the revised Part I of the Code: cases would be handled by a CIRB member with two part-time Board members to hear cases or a series of cases in health and safety.

The government rejected this procedure in favour of a single appeal to an Appeals Officer within HRDC-Labour.

Even then, the government has not done what it said that it would do. In a letter to labour and business from the then Assistant Deputy Minister (ADM) Nicole Sénécal dated July 12 1996, she stated that it was the government’s intention to "move the Appeals Officer function to a reformed CLRB as soon as that proves appropriate". The CLRB (now the CIRB) has been reformed as a result of the revised Part I of the Code, but Part II has not caught up with the new reality. Without an external appeal mechanism HRDC-Labour will be reviewing its own decisions. This violates the principle of natural justice. Fairness dictates that there should always be an external, independent review of an administrative decision.

In addition, some public service workers must currently submit their appeals to the PSSRB which has no particular expertise in health and safety matters. The appeal process should be made consistent in its application so that federal employers and workers are treated efficiently and uniformly by a Board with broad experience in health and safety matters.

What went forward in Bill C-12 is an appeal process which we believe is flawed and we hope there will be an opportunity to revisit this process in the very near future. The Minister of Labour did commit to revisit the appeal process as soon as possible and discussions with HRDC-Labour officials on this matter are still ongoing.

Disciplinary Action

The general prohibition section has also been amended. The section still says that no employer can dismiss, suspend, lay off or demote a worker, impose a financial or other penalty on a worker, or refuse to pay a worker remuneration in respect of any period of time that the worker would, but for the exercise of the worker’s rights under the Code, have worked (s.147).

The section protects from any disciplinary action the employer might take against a worker or threaten to take any such action against a worker who has provided information to a person engaged in the performance of duties under the Code regarding the conditions of work affecting the health or safety of the worker or of any other worker (s.147(b)).

It also awards the same protection to a worker who has acted in accordance with the Code or has sought the enforcement of any of the provisions of the Code (s.147(c)).

In addition to being a prohibition enforceable through the courts, a complaint can be made to the CIRB or the PSSRB by the worker or somebody acting on behalf of the worker. The Boards can hear the complaint under their own rules of procedure. It is important to note that the complaint can be made with respect to any prohibited action, especially in light of section 147(c). It is not limited to issues related to a worker's right to refuse dangerous work.

The burden of proof imposed on the employer is further stated in section 147.1(1). An employer can, after all the investigations and appeals have been exhausted by the worker who has exercised rights under sections 128 and 129, take disciplinary action against the worker who the employer can demonstrate has willfully abused those rights. It further clarifies the legal requirement previously stated in section 133(6) of the Code.

Offences and Punishment

Fines and penalties have been significantly increased with a maximum fine of $1,000,000 for offences resulting or likely to result in the death of, or serious illness or injury to a worker. Also included in the amendments is an imprisonment sentence for a maximum term of two years for some specific offences (s.148).

This change could have a serious impact on employers in the event of a prosecution. In the past, prosecutions have usually been filed following a fatality or serious, near fatal, injury. Given the increase in maximum penalties, the courts are likely to substantially increase fines when imposed.

Regulations under the Canada Labour Code, Part II

There are presently 18 regulations respecting occupational health and safety made under the Canada Labour Code, Part II. Many of them are in the process of being updated and you should consult with the HRDC-Labour regional office nearest you to ensure that you have the most current version of the regulations.

Here is the most current list we had as of September 2000:

Part I: Interpretation
Part II: Building Safety
Part III: Temporary Structures and Excavations
Part IV: Elevating Devices
Part V: Boilers and Pressure Vessels
Part VI: Lighting
Part VII: Levels of Sound
Part VIII: Electrical Safety
Part IX: Sanitation
Part X: Hazardous Substances
Part XI: Confined Spaces
Part XII: Safety Materials, Equipment, Devices and Clothing
Part XIII: Tools and Machinery
Part XIV: Materials Handling
Part XV: Hazardous Occurrence Investigation, Recording and Reporting
Part XVI: First Aid
Part XVII: Safe Occupancy of the Work Place
Part XVIII: Diving Operations

In addition to this list, there are the Safety and Health Committees and Representatives Regulations.

Three new regulations will be added in the near future:

• Prevention Program Regulations;

• Violence in the Workplace Regulations, and

• Ergonomics Regulations

Conclusion

The main purpose of the Canada Labour Code, Part II is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.

This legislation is the minimum standard of protection awarded to all federal jurisdiction workers. Knowledge and understanding of worker rights are key to fully exercising them. This protection can and must be further enhanced in collective agreements through the collective bargaining process.

The most important tool for exercising worker rights is the Policy and Workplace Health and Safety Committees. Union involvement on these committees will have a direct impact on the health and safety of all workers.

Written by:
Denis St-Jean
National Health and Safety Officer
Programs Section
Membership Services Branch
Public Service Alliance of Canada
September 2000