Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Refusal to work if danger

• 128 (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

  • (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

  • (b) a condition exists in the place that constitutes a danger to the employee; or

  • (c) the performance of the activity constitutes a danger to the employee or to another employee.

• Marginal note:No refusal permitted in certain dangerous circumstances

  (2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

  • (a) the refusal puts the life, health or safety of another person directly in danger; or

  • (b) the danger referred to in subsection (1) is a normal condition of employment.

• Marginal note:Employees on ships and aircraft

  (3) If an employee on a ship or an aircraft that is in operation has reasonable cause to believe that

  • (a) the use or operation of a machine or thing on the ship or aircraft constitutes a danger to the employee or to another employee,

  • (b) a condition exists in a place on the ship or aircraft that constitutes a danger to the employee, or

  • (c) the performance of an activity on the ship or aircraft by the employee constitutes a danger to the employee or to another employee,

  the employee shall immediately notify the person in charge of the ship or aircraft of the circumstances of the danger and the person in charge shall, as soon as is practicable after having been so notified, having regard to the safe operation of the ship or aircraft, decide whether the employee may discontinue the use or operation of the machine or thing or cease working in that place or performing that activity and shall inform the employee accordingly.

• Marginal note:No refusal permitted in certain cases

  (4) An employee who, under subsection (3), is informed that the employee may not discontinue the use or operation of a machine or thing or cease to work in a place or perform an activity shall not, while the ship or aircraft on which the employee is employed is in operation, refuse under this section to use or operate the machine or thing, work in that place or perform that activity.

• Marginal note:When ship or aircraft in operation

  (5) For the purposes of subsections (3) and (4),

  • (a) a ship is in operation from the time it casts off from a wharf in a Canadian or foreign port until it is next secured alongside a wharf in Canada; and

  • (b) an aircraft is in operation from the time it first moves under its own power for the purpose of taking off from a Canadian or foreign place of departure until it comes to rest at the end of its flight to its first destination in Canada.

• Marginal note:Report to employer

  (6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1), or who is prevented from acting in accordance with that subsection by subsection (4), shall report the circumstances of the matter to the employer without delay.

• Marginal note:Select a remedy

  (7) Where an employee makes a report under subsection (6), the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise.

• Marginal note:Investigation by employer

  (7.1) The employer shall, immediately after being informed of a refusal under subsection (6), investigate the matter in the presence of the employee who reported it. Immediately after concluding the investigation, the employer shall prepare a written report setting out the results of the investigation.

• Marginal note:Employer to take immediate action

  (8) If, following its investigation, the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it.

• Marginal note:Continued refusal

  (9) If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative.

• Marginal note:Investigation of continued refusal

  (10) If the work place committee receives a report under subsection (9), it shall designate, to investigate the matter immediately in the presence of the employee who reported it, two members of the committee, namely, one employee member from those chosen under paragraph 135.1(1)(b) and one employer member who is not from those chosen under that paragraph. If the health and safety representative receives a report under subsection (9), they shall immediately investigate the matter in the presence of the employee who reported it and a person who is designated by the employer.

• Marginal note:Report

  (10.1) Immediately after concluding the investigation, the members of the work place committee designated under subsection (10) or the health and safety representative shall provide a written report to the employer that sets out the results of the investigation and their recommendations, if any.

• Marginal note:Additional information

  (10.2) After receiving a report under subsection (10.1) or under this subsection, the employer may provide the members of the work place committee or the health and safety representative with additional information and request that they reconsider their report taking into consideration that additional information. If the work place committee members or the health and safety representative considers it appropriate, they may provide a revised report to the employer.

• Marginal note:If more than one report

  (11) If more than one employee has made a report of a similar nature, those employees may designate one employee from among themselves to be present at the investigation.

• Marginal note:Absence of employee

  (12) The employer, the members of a work place committee or the health and safety representative may proceed with their investigation in the absence of the employee who reported the matter if that employee or a person designated under subsection (11) chooses not to be present.

• Marginal note:Decision of employer

  (13) After receiving a report under subsection (10.1) or (10.2) and taking into account any recommendations in it, the employer, if it does not intend to provide additional information under subsection (10.2), shall make one of the following decisions:

  • (a) agree that a danger exists;

  • (b) agree that a danger exists but consider that the circumstances provided for in paragraph (2)(a) or (b) apply;

  • (c) determine that a danger does not exist.

• Marginal note:Decision  — paragraph (13)(a)

  (14) If the employer agrees that a danger exists under paragraph (13)(a), the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it.

• Marginal note:Decision  — paragraph (13)(b) or (c)

  (15) If the employer makes a decision under paragraph (13)(b) or (c), the employer shall notify the employee in writing. If the employee disagrees with the employer’s decision, the employee is entitled to continue the refusal, subject to subsections 129(1.2), (1.3), (6) and (7).

• Marginal note:Information to Head

  (16) If the employee continues the refusal under subsection (15), the employer shall immediately inform the Head and the work place committee or the health and safety representative of its decision and the continued refusal. The employer shall also provide a copy of the report on the matter prepared under subsection (7.1) to the Head along with a copy of any report referred to in subsection (10.1) or (10.2).

Marginal note:Employees on shift during work stoppage

• 128.1 (1) Unless otherwise provided in a collective agreement 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.

• Marginal note: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.

• Marginal note:Alternative work

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

• Marginal note: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.

Marginal note:Head’s investigation

• 129 (1) If the Head is informed of the employer’s decision and the continued refusal under subsection 128(16), the Head shall investigate the matter unless the Head is of the opinion that

  • (a) the matter is one that could more appropriately be dealt with, initially or completely, by means of a procedure provided for under Part I or III or under another Act of Parliament;

  • (b) the matter is trivial, frivolous or vexatious; or

  • (c) the continued refusal by the employee under 128(15) is in bad faith.

• Marginal note:Notices of decision not to investigate

  (1.1) If the Head does not proceed with an investigation, the Head shall inform the employer and the employee in writing, as soon as feasible, of that decision. The employer shall then inform in writing, as the case may be, the members of the work place committee who were designated under subsection 128(10) or the health and safety representative and the person who is designated by the employer under that subsection of the Head’s decision.

• Marginal note:Return to work

  (1.2) On being informed of the Head’s decision not to proceed with an investigation, the employee is no longer entitled to continue their refusal under subsection 128(15).

• Marginal note:Refusal of work during investigation

  (1.3) If the Head proceeds with an investigation, the employee may continue to refuse, for the duration of the investigation, to use or operate the machine or thing, to work in the place or to perform the activity that may constitute a danger.

• Marginal note:Persons present during the investigation

  (1.4) If the Head proceeds with an investigation, the Head may do so 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.

• Marginal note:Employees’ representative 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.

• Marginal note:Absence of any person

  (3) The Head may proceed with an investigation in the absence of any person mentioned in subsection (1.4) or (2) if that person chooses not to be present.

• Marginal note:Precedent

  (3.1) During the Head’s investigation, the Head shall verify if there are previous or ongoing investigations in relation to the same employer that involve substantially the same issues and may

  • (a) if there was a previous investigation, rely on the findings of that investigation to decide whether a danger exists; or

  • (b) if there is an ongoing investigation, combine that investigation with the investigation the Head is conducting and issue a single decision.

• Marginal note:Decision of Head

  (4) The Head shall, on completion of an investigation made under subsection (1), make one of the decisions referred to in paragraphs 128(13)(a) to (c) and shall immediately give written notification of the decision to the employer and the employee.

• Marginal note:Continuation of work

  (5) If the employee has exercised their right under subsection (1.3), the employer may, during the investigation and until the Head has issued a decision, 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.

• Marginal note:Directions by Head

  (6) If the Head makes a decision referred to in paragraph 128(13)(a), the Head shall issue the directions under subsection 145(2) that the Head 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.

• Marginal note:Appeal

  (7) If the Head makes a decision referred to in paragraph 128(13)(b) or (c), 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 the Board within 10 days after receiving notice of the decision.

Marginal note:When collective agreement exists

130 The Head may, on the joint application of the parties to a collective agreement, if the Head 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.

Marginal note: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.