Common menu bar

• Français
• Home
• Contact Us
• Help
• Search
• canada.gc.ca

Breadcrumb

1. Home >
2. Operational Program Directives

Refusals to Work in Situations Involving Demonstrations - OPD 905-2

• OHS OPDs
• OPD Home
• Disclaimer

Canada Labour Code, Part II - OPDs

No.: 905-2
Date: 2004-10-01

Table of Contents

1. Purpose

This directive provides a guideline in the event of a refusal to work in situations involving a demonstration.

2. Scope

This directive applies to all officials of HRSDC-Labour Program.

3. Background

The issue of the responsibility of the employer to ensure the safety of the employee who has to cross through a demonstration to report to work, or to carry out work activities, is contentious.

There have been occasions where employees have viewed such incidents as a condition that constitutes a danger within the meaning of section 128 of Part II of the Canada Labour Code (the "Code"), and such employees have sought to invoke their right to refuse dangerous work.

It is necessary to clarify the application of the Code, and the role of the health and safety officer in investigating a refusal to work that is referred to the Labour Program in such circumstances.

4. Guiding Principles

Violence, threats and vandalism are covered by the Criminal Code and are, therefore, the responsibility of the police. Notwithstanding the application of the Criminal Code, employers, pursuant to paragraph 125(p) of the Code, must "ensure, in the prescribed manner, that employees have safe entry to, exit from and occupancy of the work place". In addition, by virtue of paragraph 125(1)(z.16) of the Code, employers "shall take the prescribed steps to prevent and protect against violence in the work place". Currently there are no prescribed steps by regulation; however, the general duty clause of section 124 of the Code continues to apply.

4.1 Applicability of the Code

1. In any situation involving refusals to work, Labour Program's role is to determine whether or not the Code applies, and subsequently to produce an objective, impartial analysis of the facts for the purposes of the investigation and decision provided for in section 129.
2. An employee must be "at work" for the Code to apply. Therefore, the right to refuse dangerous work pursuant to the Code, can be exercised only by employees "while at work". An employee is not "at work" until they have reached their work place as defined in the Code, that is "any place where an employee is engaged in work for the employee's employer". In other words, an employee, who has not yet reported for work, may not invoke their right to refuse dangerous work because they must cross through a demonstration to arrive at work.
3. The same cannot be said for an employee who must cross through a demonstration while they are engaged in work activities. In such instances, the employee is deemed to be "at work" and the Code applies. It is, therefore, the responsibility of the employer to find a solution to crossing through a demonstration which is likely to endanger the health or safety of an employee while at work.

4.2 Investigation by a Health and Safety Officer

Where a refusal to work is referred to a health and safety officer, the health and safety officer shall conduct their investigation in accordance with OPD 905-1 and this directive.

4.3 Criteria in Decision of Health and Safety Officers

1. In making a decision pursuant to section 129 of the Code, a health and safety officer may consider, on a case-by-case basis, whether the following conditions are present, which may indicate that a danger does not exist:
   
   1. the presence of police or other peacekeeping forces on the premises where the incidents are said to occur and, where applicable, their favourable evaluation of the current situation;
   2. the presumption that the persons alleged to have employed violence in the past shall henceforth abide by the law;
   3. the existence of employer policies and procedures pertaining to crossing through demonstrations, and the implementation of the same;
   4. the fact that a safe means of crossing through the demonstration is available to the employees, (for example, use of escorts, closed vehicles, etc.);
   5. an evaluation of whether the employee has taken all reasonable and necessary precautions to ensure the health and safety of the employee in accordance with paragraph 126(1)(c) of the Code.

5. Responsibilities

The application of this directive shall be periodically evaluated by the Director General, National Labour Operations Directorate.

Primary navigation (left column)

Date Modified:

2011-10-31