Refusal to Work - Non-application to Certain Workers

Workers not covered by the section

(1) This section does not apply to a worker described in subsection (2),

(a) when a circumstance described in clause (3) (a), (b), (b.1) or (c) is inherent in the worker’s work or is a normal condition of the worker’s employment;

(b) when the worker’s refusal to work would directly endanger the life, health or safety of another person.  R.S.O. 1990, c. O.1, s. 43 (1); 2009, c. 23, s. 4 (1).
Idem

(2) The worker referred to in subsection (1) is,

(a) a person employed in, or a member of, a police force to which the Police Services Act applies;
Note: On a day to be named by proclamation of the Lieutenant Governor, clause 43 (2) (a) of the Act is amended by striking out “a police force to which the Police Services Act applies” at the end and substituting “a police service to which the Community Safety and Policing Act, 2019 applies”. (See: 2019, c. 1, Sched. 4, s. 39 (1))
(b) a firefighter as defined in subsection 1 (1) of the Fire Protection and Prevention Act, 1997;

(c) a person employed in the operation of,
(i) a correctional institution or facility,
(ii) a place of secure custody designated under section 24.1 of the Young Offenders Act (Canada), whether in accordance with section 88 of the Youth Criminal Justice Act (Canada) or otherwise,
(iii) a place of temporary detention under the Youth Criminal Justice Act (Canada), or
(iv) a similar institution, facility or place;

(d) a person employed in the operation of,
(i) a hospital, sanatorium, long-term care home, psychiatric institution, mental health centre or rehabilitation facility,
(ii) a residential group home or other facility for persons with behavioural or emotional problems or a physical, mental or developmental disability,
(iii) an ambulance service or a first aid clinic or station,
(iv) a laboratory operated by the Crown or licensed under the Laboratory and Specimen Collection Centre Licensing Act, or
(v) a laundry, food service, power plant or technical service or facility used in conjunction with an institution, facility or service described in subclause (i) to (iv).  R.S.O. 1990, c. O.1, s. 43 (2); 1997, c. 4, s. 84; 2001, c. 13, s. 22; 2006, c. 19, Sched. D, s. 14; 2007, c. 8, s. 221.

Refusal to work

(1) A worker may refuse to work or do particular work where he or she has reason to believe that,

(2) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

Reason to believe

(3) 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;

(4) workplace violence is likely to endanger himself or herself; or

(5) 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.  R.S.O. 1990, c. O.1, s. 43 (3); 2009, c. 23, s. 4 (2).

Report of refusal to work

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker’s employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them who shall be made available and who shall attend without delay.  R.S.O. 1990, c. O.1, s. 43 (4).Worker to remain in safe place and available for investigation

(5) Until the investigation is completed, the worker shall remain,

(a) in a safe place that is as near as reasonably possible to his or her work station; and

(b) available to the employer or supervisor for the purposes of the investigation.  2009, c. 23, s. 4 (3).
Refusal to work following investigation

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be 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 continues to be likely to endanger himself or herself;

(b.1) workplace violence continues to be 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 continues to be likely to endanger himself, herself or another worker,
the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.  R.S.O. 1990, c. O.1, s. 43 (6); 2009, c. 23, s. 4 (4).

Report of refusal to work

(7) An inspector shall investigate the refusal to work in consultation with the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4) (a), (b) or (c).  2001, c. 9, Sched. I, s. 3 (11).

Decision of inspector

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether a circumstance described in clause (6) (a), (b), (b.1) or (c) is likely to endanger the worker or another person.  2009, c. 23, s. 4 (5).
Idem

(9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4) (a), (b) or (c).  R.S.O. 1990, c. O.1, s. 43 (9).

Worker to remain in safe place and available for investigation

(10) Pending the investigation and decision of the inspector, the worker shall remain, during the worker’s normal working hours, in a safe place that is as near as reasonably possible to his or her work station and available to the inspector for the purposes of the investigation.  2009, c. 23, s. 4 (6).
Exception

(10.1) Subsection does not apply if the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during the worker’s normal working hours; or

(b) subject to section 50, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.  2009, c. 23, s. 4 (6).
Duty to advise other workers

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the workplace or in the part of the workplace being investigated unless, in the presence of a person described in subsection (12), the worker has been advised of the other worker’s refusal and of his or her reasons for the refusal.  R.S.O. 1990, c. O.1, s. 43 (11).

(12) The person referred to in subsection (11) must be,

(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.  R.S.O. 1990, c. O.1, s. 43 (12).Entitlement to be paid

Refusal to work following investigation

(13) A person shall be deemed to be at work and the person’s employer shall pay him or her at the regular or premium rate, as may be proper,

(a) for the time spent by the person carrying out the duties under subsections (4) and (7) of a person mentioned in clause.

 

b) for time spent by the person carrying out the duties under subsection (11) of a person described in subsection .

Section Amendments with date in force (d/m/y)

Definition and non-application

Definition

44 (1) In sections 45 to 48,

“dangerous circumstances” means a situation in which,

(a) a provision of this Act 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.

Non-application

(2) Sections 45 to 49 do not apply to,

(a) a workplace at which workers described in clause 43 (2) (a), (b) or (c) are employed; or

(b) a workplace at which workers described in clause 43 (2) (d) are employed if a work stoppage would directly endanger the life, health or safety of another person.  R.S.O. 1990, c. O.1, s. 44.

Bilateral work stoppage

1) A certified member who has reason to believe that dangerous circumstances exist at a workplace may request that a supervisor investigate the matter and the supervisor shall promptly do so in the presence of the certified member.

Investigation by second certified member

(2) The certified member may request that a second certified member representing the other workplace party investigate the matter if the first certified member has reason to believe that dangerous circumstances continue after the supervisor’s investigation and remedial actions, if any.

Idem

(3) The second certified member shall promptly investigate the matter in the presence of the first certified member.

Direction following investigation

(4) If both certified members find that the dangerous circumstances exist, the certified members may direct the constructor or employer to stop the work or to stop the use of any part of a workplace or of any equipment, machine, device, article or thing.

Constructor’s or employer’s duties

(5) The constructor or employer shall immediately comply with the direction and shall ensure that compliance is effected in a way that does not endanger a person.

Investigation by inspector

(6) If the certified members do not agree whether dangerous circumstances exist, either certified member may request that an inspector investigate the matter and the inspector shall do so and provide the certified members with a written decision.

Decision of inspector

Cancellation of direction

(7) After taking steps to remedy the dangerous circumstances, the constructor or employer may request the certified members or an inspector to cancel the direction.

Idem

(8) The certified members who issued a direction may jointly cancel it or an inspector may cancel it.

Delegation by certified member

(9) In such circumstances as may be prescribed, a certified member who represents the constructor or employer shall designate a person to act under this section in his or her stead when the certified member is not available at the workplace.  R.S.O. 1990, c. O.1, s. 45.

Declaration against constructor, etc.

1) A certified member at a workplace or an inspector who has reason to believe that the procedure for stopping work set out in section 45 will not be sufficient to protect a constructor’s or employer’s workers at the workplace from serious risk to their health or safety may apply to the Board for a declaration or recommendation described in subsection (5), or both.  R.S.O. 1990, c. O.1, s. 46 (1); 1998, c. 8, s. 53 (1).

(2) Repealed: 1998, c. 8, s. 53 (2).

Minister a party

(3) The Minister is entitled to be a party to a proceeding before the Board.  R.S.O. 1990, c. O.1, s. 46 (3); 1998, c. 8, s. 53 (3).

Board procedure, etc.

(4) Subsections 61 (2) to (3.13) and subsection 61 (8) apply, with necessary modifications, with respect to applications under this section.  1998, c. 8, s. 53 (4).

Declaration and recommendation

(5) If the Board finds that the procedure for stopping work set out in section 45 will not be sufficient to protect the constructor’s or employer’s workers at the workplace from serious risk to their health or safety, the Board,

(a) may issue a declaration that the constructor or employer is subject to the procedure for stopping work set out in section 47 for the period specified; and

(b) may recommend to the Minister that an inspector be assigned to oversee the health and safety practices of the constructor or employer at the workplace on a full-time or part-time basis for a specified period.  R.S.O. 1990, c. O.1, s. 46 (5); 1998, c. 8, s. 53 (5).

Criteria

(6) In making a finding under subsection (5), the Board shall determine, using the prescribed criteria, whether the constructor or employer has demonstrated a failure to protect the health and safety of workers and shall consider such other matters as may be prescribed.  R.S.O. 1990, c. O.1, s. 46 (6); 1998, c. 8, s. 53 (6).

Decision final

Duty to advise other workers

(7) The decision of the Board on an application is final.  R.S.O. 1990, c. O.1, s. 46 (7); 1998, c. 8, s. 53 (7).

Costs of inspector

(8) The employer shall reimburse the Province of Ontario for the wages, benefits and expenses of an inspector assigned to the employer as recommended by the Board.  1998, c. 8, s. 53 (8).

Unilateral work stoppage

(1) This section applies, and section 45 does not apply, to a constructor or an employer,

(a) against whom the Board has issued a declaration under section 46; or

(b) who advises the committee at a workplace in writing that the constructor or employer adopts the procedures set out in this section respecting work stoppages.  R.S.O. 1990, c. O.1, s. 47 (1); 1998, c. 8, s. 54.

Direction re work stoppage

(2) A certified member may direct the constructor or employer to stop specified work or to stop the use of any part of a workplace or of any equipment, machine, device, article or thing if the certified member finds that dangerous circumstances exist.

Constructor’s or employer’s duties

(3) The constructor or employer shall immediately comply with the direction and shall ensure that compliance is effected in a way that does not endanger a person.

Investigation by constructor, etc.

(4) After complying with the direction, the constructor or employer shall promptly investigate the matter in the presence of the certified member.

Investigation by inspector

(5) If the certified member and the constructor or employer do not agree whether dangerous circumstances exist, the constructor or employer or the certified member may request that an inspector investigate the matter and the inspector shall do so and provide them with a written decision.

Cancellation of direction

(6) After taking steps to remedy the dangerous circumstances, the constructor or employer may request the certified member or an inspector to cancel the direction.

Idem

(7) The certified member who made the direction or an inspector may cancel it.  R.S.O. 1990, c. O.1, s. 47 (2-7).

Section Amendments with date in force (d/m/y)

Entitlement to investigate

(1) A certified member who receives a complaint that dangerous circumstances exist is entitled to investigate the complaint.

Entitlement to be paid

(2) The time spent by a certified member in exercising powers and carrying out duties under this section and sections 45 and 47 shall be deemed to be work time for which the member’s employer shall pay the member at the regular or premium rate as may be proper.  R.S.O. 1990, c. O.1, s. 48.

Complaint re direction to stop work

49 (1) A constructor, an employer, a worker at the workplace or a representative of a trade union that represents workers at the workplace may file a complaint with the Board if he, she or it has reasonable grounds to believe that a certified member at the workplace recklessly or in bad faith exercised or failed to exercise a power under section 45 or 47.  R.S.O. 1990, c. O.1, s. 49 (1); 1998, c. 8, s. 55 (1).

Limitation

(2) A complaint must be filed not later than 30 days after the event to which the complaint relates.  R.S.O. 1990, c. O.1, s. 49 (2); 1998, c. 8, s. 55 (2).

Minister a party

(3) The Minister is entitled to be a party to a proceeding before the Board.  R.S.O. 1990, c. O.1, s. 49 (3); 1998, c. 8, s. 55 (3).

Board procedure, etc.

(3.1) Subsections 61 (2) to (3.13) and subsection 61 (8) apply, with necessary modifications, with respect to complaints under this section.  1998, c. 8, s. 55 (4).

Determination of complaint

(4) The Board shall make a decision respecting the complaint and may make such order as it considers appropriate in the circumstances including an order decertifying a certified member.  1998, c. 8, s. 55.