Canada Labour Code (R.S.C., 1985, c. L-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:Minister’s investigation

• 129 (1) If the Minister is informed of the employer’s decision and the continued refusal under subsection 128(16), the Minister shall investigate the matter unless the Minister 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 Minister does not proceed with an investigation, the Minister 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 Minister’s decision.

• Marginal note:Return to work

  (1.2) On being informed of the Minister’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 Minister 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 Minister proceeds with an investigation, the Minister 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 Minister 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 Minister’s investigation, the Minister 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 Minister is conducting and issue a single decision.

• Marginal note:Decision of Minister

  (4) The Minister 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 Minister 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 Minister

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

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.

Pregnant and Nursing Employees

Marginal note: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.

• Marginal note:Consult health care practitioner

  (2) The employee must consult with a health care 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.

• Marginal note: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 health care 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).

• Marginal note: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.

• Marginal note: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.