Employees on shift during work stoppage

128.1 (1) Unless otherwise provided in a collective or other agreement, employees who are affected by a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during the stoppage until work resumes or until the end of the scheduled work period or shift, whichever period is shorter.

Employees on next shift

(2) Unless otherwise provided in a collective or other agreement, employees who are due to work on a scheduled work period or shift after a shift during which there has been a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during their work period or shift, unless they have been given one hour's notice not to attend work.

Alternative work

(3) An employer may assign reasonable alternative work to employees who are deemed under subsection (1) or (2) to be at work.

Repayment

(4) Unless otherwise provided in a collective or other agreement, employees who are paid wages or benefits under subsection (1) or (2) may be required by the employer to repay those wages and benefits if it has been determined, after all avenues of redress have been exhausted by the employee who exercised rights under section 128 or 129, that the employee exercised those rights knowing that no circumstances existed that would warrant it.

Investigation by health and safety officer

129. (1) On being notified by the employee or the employer that the employee continues to refuse to use or operate a machine or thing, to work in a place or to perform an activity under subsection 128(12) , a health and safety officer shall without delay investigate or cause another health and safety officer to investigate the matter in the presence of the employer, the employee and an employee member of the work place committee or the health and safety representative or, if a member of the work place committee or the health and safety representative is not available, another employee from the work place designated by the employee.

Employees' represen-
tative if more than one report

(2) If the investigation involves more than one employee who continues to refuse to use or operate a machine or thing, to work in a place or to perform an activity in similar circumstances, the employees may designate one employee from among those who continue to refuse to be present at the investigation on their behalf.

Absence of employee

(3) A health and safety officer may proceed with an investigation under subsection (1) in the absence of the employee who continues to refuse if that employee or a person designated under subsection (2) is unable to be present or chooses not to be present at the investigation.

Decision of health and safety officer

(4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether or not the danger exists and shall immediately give written notification of the decision to the employer and the employee.

Continuation of work

(5) Before the investigation and decision of a health and safety officer under this section, the employer 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 alternative work, and shall not assign any other employee to use or operate the machine or thing, to work in that place or to perform the activity referred to in subsection (1) unless that other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal and the employer is satisfied on reasonable grounds that the other employee will not be put in danger.

Decision of health and safety officer re danger

(6) If a health and safety officer decides that the danger exists, the officer shall give the direction under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, to work in that place or to perform that activity until the direction is complied with or until it is varied or rescinded under this Part.

Appeal

(7) If a health and safety officer decides that the danger does not exist, the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, to work in that place or to perform that activity , but the employee, or a person designated by the employee for the purpose , may appeal in writing to an appeals officer within ten days after receiving notice of the decision of the health and safety officer.

When collective agreement exists

130 . The Minister may, on the joint application of the parties to a collective agreement if the Minister is satisfied that the agreement contains provisions that are at least as effective as those under sections 128 and 129 in protecting the employees to whom the agreement relates from danger to their health or safety, exclude the employees from the application of those sections for the period during which the agreement remains in force.

Compensa-
tion under other laws not precluded

131. The fact that an employer or employee has complied with or failed to comply with any of the provisions of this Part shall not be construed as affecting any right of an employee to compensation under any statute relating to compensation for employment injury or illness , or as affecting any liability or obligation of any employer or employee under any such statute.

Pregnant and Nursing Employees

Cease to perform job

132. (1) In addition to the rights conferred by section 128 and subject to this section, an employee who is pregnant or nursing may cease to perform her job if she believes that, by reason of the pregnancy or nursing, continuing any of her current job functions may pose a risk to her health or to that of the foetus or child.

Consult medical practitioner

(2) The employee must consult with a qualified medical practitioner, as defined in section 166, of her choice as soon as possible to establish whether continuing any of her current job functions poses a risk to her health or to that of the foetus or child.

Provision no longer applicable

(3) Without prejudice to any other right conferred by this Act, by a collective or other agreement or by any terms and conditions of employment, once the medical practitioner has established whether there is a risk as described in subsection (1), the employee may no longer cease to perform her job under subsection (1).

Employer may reassign

(4) For the period during which the employee does not perform her job under subsection (1), the employer may, in consultation with the employee, reassign her to another job that would not pose a risk to her health or to that of the foetus or child.

Status of employee

(5) The employee, whether or not she has been reassigned to another job, is deemed to continue to hold the job that she held at the time she ceased to perform her job functions and shall continue to receive the wages and benefits that are attached to that job for the period during which she does not perform her job under subsection (1).

Complaints when Action against Employees

Complaint to Board

133. (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 or 147.1 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

Time for making complaint

(2) The complaint shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint.

Restriction

(3) A complaint in respect of the exercise of a right under section 128 or 129 may not be made under this section unless the employee has complied with subsection 128(6) or a health and safety officer has been notified under subsection 129(1), as the case may be , in relation to the matter that is the subject-matter of the complaint.

Exclusion of arbitration

(4) Notwithstanding any law or agreement to the contrary, a complaint referred to in subsection (1) may not be referred by an employee to arbitration or adjudication .

Duty and power of Board

(5) On receipt of a complaint made under subsection (1), the Board may assist the parties to the complaint to settle the complaint and shall, if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint.

Burden of proof

(6) A complaint made under subsection (1) in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.

Board orders

134. If, under subsection 133(5), the Board determines that an employer has contravened section 147 or 147.1 , the Board may, by order, require the employer to cease contravening that section and may, if applicable, by order, require the employer to

    (a) permit any employee who has been affected by the contravention to return to the duties of their employment;

    (b) reinstate any former employee affected by the contravention;

    (c) pay to any employee or former employee affected by the contravention compensation not exceeding the sum that , in the Board's opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to that employee or former employee; and

    (d) rescind any disciplinary action taken in respect of, and pay compensation to any employee affected by, the contravention, not exceeding the sum that , in the Board's opinion, is equivalent to any financial or other penalty imposed on the employee by the employer.

Policy Health and Safety Committees

Establish-
ment mandatory

134.1 (1) For the purposes of addressing health and safety matters that apply to the entire work, undertaking or business of an employer, every employer who normally employs directly three hundred or more employees shall establish a policy committee composed of members appointed in accordance with section 135.1.

Exception

(2) An employer who normally employs directly more than twenty but fewer than three hundred employees also may establish a policy committee.

More than one committee

(3) An employer may establish more than one policy committee with the agreement of

    (a) the employees, if the employees are not represented by a trade union; or

    (b) the trade union representing employees, after it has consulted with any employees who are not so represented.

Powers and duties of policy committee

(4) A policy committee

    (a) shall consider and expeditiously dispose of matters concerning health and safety raised by members of the committee or referred to it by a work place committee or a health and safety representative;

    (b) shall participate in the development and monitoring of programs for the prevention of hazards in the work place, including the education of employees in health and safety matters;

    (c) shall, as requested by the work place committee or the health and safety representative, participate in inquiries, investigations, studies and inspections pertaining to occupational health and safety;

    (d) shall participate in the assessment of the need for personal protective equipment or clothing;

    (e) shall cooperate with health and safety officers;

    (f) shall monitor data on work accidents, injuries and health hazards;

    (g) shall participate in the planning of the implementation and in the implementation of changes, including work processes and procedures, that may affect occupational health and safety;

    (h) may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities in any of the employer's work places;

    (i) shall have full access to all government and employer reports, studies and tests relating to the health and safety of employees in the work place, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person's consent; and

    (j) shall participate in the development of health and safety policies and programs.

Meetings of committee

(5) A policy committee shall meet during regular working hours at least quarterly and, if other meetings are required as a result of an emergency or other special circumstances, the committee shall meet as required whether or not during regular working hours.

Work Place Health and Safety Committees

Establish-
ment mandatory

135. (1) For the purposes of addressing health and safety matters that apply to individual work places, and subject to this section, every employer shall, for each work place controlled by the employer at which twenty or more employees are normally employed, establish a work place committee composed of members appointed in accordance with section 135.1 .

Exception

(2) An employer is not required to establish a committee under subsection (1) for a work place that is on board a ship in respect of employees whose base is the ship.

Exemption by Minister

(3) On the request of an employer and if the Minister is satisfied, after taking into account any factors the Minister considers appropriate, including the factors set out in subsection (4) , that the nature of work being done by employees at the work place is relatively free from risks to health and safety, the Minister may, by order, on any terms and conditions that are specified in the order , exempt the employer from the requirement to establish a work place committee.

Factors to be considered

(4) The following factors are to be taken into account for the purposes of subsection (3):

    (a) the risk of occupational injury or illness from hazardous substances or other conditions known to be associated with the type of activity conducted in that type of work place;

    (b) whether the nature of the operation of, and the processes and equipment used in, the work place are relatively free from hazards to health and safety in comparison with similar operations, processes and equipment;

    (c) the physical and organizational structure of the work place, including the number of employees and the different types of work being performed; and

    (d) during the current calendar year and for the two calendar years immediately before it,

      (i) the number of disabling injuries in relation to the number of hours worked in the work place,

      (ii) the occurrence of incidents in the work place having serious effects on health and safety, and

      (iii) the number of directions issued in respect of contraventions of paragraph 125(1)(c) or (z.3) or 125.1(f) or contraventions of this Part that had serious consequences in respect of the work place.

Exemption if collective agreement

(5) If, under a collective agreement or any other agreement between an employer and the employer's employees , a committee of persons has been appointed and the committee has, in the opinion of a health and safety officer, a responsibility for matters relating to health and safety in the work place to such an extent that a work place committee established under subsection (1) for that work place would not be necessary,

    (a) the health and safety officer may, by order, exempt the employer from the requirements of subsection (1) in respect of that work place;

    (b) the committee of persons that has been appointed for the work place has, in addition to any rights, functions, powers, privileges and obligations under the agreement, the same rights, functions, powers, privileges and obligations as a work place committee under this Part; and

    (c) the committee of persons so appointed is , for the purposes of this Part, deemed to be a work place committee established under subsection (1) and all rights and obligations of employers and employees under this Part and the provisions of this Part respecting a work place committee apply, with any modifications that the circumstances require, to the committee of persons so appointed.

Powers and duties of committee

(6) A work place committee, in respect of the work place for which it is established,

    (a) shall consider and expeditiously dispose of complaints relating to the health and safety of the employees;

    (b) shall participate in the development, implementation and monitoring of programs for the prevention of hazards in the work place, including the education of employees in health and safety matters;

    (c) shall participate in all inquiries, investigations, studies and inspections pertaining to the health and safety of the employees, including any consultations that may be necessary with persons who are professionally or technically qualified to advise the committee on those matters;

    (d) shall participate in the development, implementation and monitoring of programs for the provision of personal protective equipment or clothing;

    (e) shall ensure that adequate records are maintained on work accidents, injuries and health hazards and the disposition of complaints related to the health and safety of employees and regularly monitor data relating to those accidents, injuries, hazards and complaints;

    (f) shall cooperate with health and safety officers;

    (g) shall participate in the planning of the implementation and in the implementation of changes, including work processes and procedures, that may affect occupational health and safety;

    (h) may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities;

    (i) shall have full access to all government and employer reports, studies and tests relating to the health and safety of the employees, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person's consent;

    (j) shall assist the employer in identifying and assessing the concentration and level of hazardous substances to which employees may be exposed;

    (k) shall carry out monthly inspections of parts of the work place so that the whole work place is inspected in the course of every year; and

    (l) shall participate in the development of health and safety policies and programs.