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Bill C-12

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Employees on next shift

(2) Unless otherwise provided in a collective agreement 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 at least 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 agreement 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 is 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 that an employee continues to refuse to use or operate a machine or thing, work in a place or perform an activity under subsection 128(13), the health and safety officer shall without delay investigate or cause another officer to investigate the matter in the presence of the employer, the employee and one other person who is

    (a) an employee member of the work place committee;

    (b) the health and safety representative; or

    (c) if a person mentioned in paragraph (a) or (b) is not available, another employee from the work place who is designated by the employee.

Employees' representa-
tive if more than one employee

(2) If the investigation involves more than one employee, those employees may designate one employee from among themselves to be present at the investigation.

Absence of any person

(3) A health and safety officer may proceed with an investigation in the absence of any person mentioned in subsection (1) or (2) if that person chooses not to be present.

Decision of health and safety officer

(4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether 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, work in that place or perform the activity referred to in subsection (1) unless

    (a) the other employee is qualified for the work;

    (b) the other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal; and

    (c) 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 issue the directions under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are 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, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within ten days after receiving notice of the decision.

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.

Compensation 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 may 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. On being informed of the cessation, the employer, with the consent of the employee, shall notify the work place committee or the health and safety representative.

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 agreement 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 the job.

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 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 128(13), 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 made under this section may not be referred by an employee to arbitration or adjudication.

Duty and power of Board

(5) On receipt of a complaint made under this section, 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 this section 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, 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 the 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 work, undertaking or business of an employer, every employer who normally employs directly three hundred or more employees shall establish a policy health and safety committee and, subject to section 135.1, select and appoint its members.

Exception

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

More than one committee

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

    (a) the trade union, if any, representing the employees; and

    (b) the employees, in the case of employees not represented by a trade union.

Duties of policy committee

(4) A policy committee

    (a) shall participate in the development of health and safety policies and programs;

    (b) 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;

    (c) shall participate in the development and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters;

    (d) shall participate to the extent that it considers necessary in inquiries, investigations, studies and inspections pertaining to occupational health and safety;

    (e) shall participate in the development and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials;

    (f) shall cooperate with health and safety officers;

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

    (h) shall participate in the planning of the implementation and in the implementation of changes that might affect occupational health and safety, including work processes and procedures.

Information

(5) A policy committee 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.

Access

(6) A policy committee shall have full access to all of the 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.

Meetings of committee

(7) 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 during regular working hours or outside those 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 health and safety committee and, subject to section 135.1, select and appoint its members.

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 receipt of a request from an employer that is submitted in the form and manner prescribed, if any is prescribed, and if the Minister is satisfied after considering 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 considered 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 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) any directions issued in respect of contraventions of paragraph 125(1)(c), (z.10) or (z.11), and any contraventions of this Part that had serious consequences in respect of the work place.

Posting of request

(5) A request for an exemption must be posted in a conspicuous place or places where it is likely to come to the attention of employees, and be kept posted until the employees are informed of the Minister's decision in respect of the request.

Exemption if collective agreement

(6) 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.

Duties of committee

(7) 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 employees;

    (b) shall participate in the implementation and monitoring of the program referred to in paragraph 134.1(4)(c);

    (c) where the program referred to in paragraph 134.1(4)(c) does not cover certain hazards unique to the work place, shall participate in the development, implementation and monitoring of a program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

    (d) where there is no policy committee, shall participate in the development, implementation and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters related to those hazards;

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

    (f) shall participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials and, where there is no policy committee, shall participate in the development of the program;

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

    (h) shall cooperate with health and safety officers;

    (i) shall participate in the implementation of changes that might affect occupational health and safety, including work processes and procedures and, where there is no policy committee, shall participate in the planning of the implementation of those changes;

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