The Canada Labour Code (CLC), Part II, which is the legislation that is intended to protect the health and safety of employees under federal jurisdiction, provides these same employees with three basic rights:
- the right to know;
- the right to participate; and
- the right to refuse dangerous work.
This brochure elaborates on the employer and employee rights and responsibilities, with respect to employees refusing dangerous work while on board an aircraft in operation. For clarification purposes, an aircraft is considered to be “in operation” anytime it is flying in Canada or abroad, as well as anytime the aircraft doors are closed and the aircraft is moving on the ground, under its own power, for the purposes of taking-off or landing.
- Who can refuse dangerous work while on board an aircraft in operation?
- When can an employee refuse dangerous work on board an aircraft in operation?
- What action is required when an employee believes there is reasonable cause to refuse dangerous work while on board an aircraft in operation?
- Once the aircraft has landed at the first destination, how does the employee who was prevented from refusing to work while the aircraft was in operation, pursue the matter further?
- What happens if there is no resolution and the employee continues to refuse to work, believing the danger still exists?
- What rights does the employer have prior to the investigation and decision of the CASI-OH&S?
- What happens if the CASI-OH&S decides there is a danger?
- If danger is determined by the CASI-OH&S, is there any redress for an employer who does not concur with the direction?
- What happens if the CASI-OH&S decides that there is no danger?
- Does the employer have the right to take discipline action against the employee?
Employees who are subject to the CLC Part II can refuse dangerous work while on board an aircraft in operation. However, an employee cannot refuse to work if:
- the refusal puts the life, health or safety of another person directly in danger*; or
- the danger is a normal condition of their employment.
Refer to CLC Part II, Subsection 128(2)
* “danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and is likely to result in a chronic illness, in disease or in damage to the reproductive system.
Refer to CLC Part II, Subsection 122(1)
An employee can refuse dangerous work on board an aircraft in operation if they have reasonable cause to believe that:
- the use or operation of a machine or thing on the aircraft constitutes a danger to themselves or to another employee;
- a condition exists on the aircraft that constitutes a danger to the employee; or
- the performance of an activity on the aircraft by the employee constitutes a danger to the employee or to another employee.
Refer to CLC Part II, Subsection 128(3)
- The employee immediately notifies the person in charge of the aircraft of the circumstances of the danger.
- As soon as possible after being notified, having regard to the safe operation of the aircraft, the person in charge must decide whether the employee may cease working and advise the employee accordingly.
- If the employee is informed that they may not cease working, then the employee shall not, while the aircraft is in operation, refuse to work.
- However, if the employee still believes there is a danger, they are to report the circumstances of the matter to the employer without delay, after the aircraft has landed.
Refer to CLC Part II, Subsections 128(3), (4) and (6)
- The employee must report the circumstances of the matter to the employer without delay and if the employer agrees a danger exists, they must take immediate action to protect employees from the danger, and then inform the work place committee or health and safety representative of the matter and the action taken to resolve it.
- If the matter is not resolved, the employee may continue the refusal, in which case they must, without delay, report the circumstances of the matter to the employer and the work place committee or health and safety representative.
- Immediately upon being informed, the employer must investigate the matter in the presence of the employee and his or her representative.
Note: If a work place committee member who does not exercise management functions, or the health and safety representative, is not available, the employee selects a co-worker to be present for this investigation.
Refer to CLC Part II, Subsections 128(6), (8), (9) and (10)
On being informed of the continued refusal, the employer shall notify a Civil Aviation Safety Inspector – Occupational Health and Safety (CASI-OH&S), who immediately investigates the matter, in the presence of the employer, the employee and the employee’s representative.
Refer to CLC Part II, Subsections 128(13) and 129(1)
- The employer may require that the employee concerned remain at a safe location nearby, or assign the employee reasonable alternative work.
- The employer may assign another qualified employee to do the work, provided the other employee has been advised of the refusal and the reasons for it, and the employer is satisfied on reasonable grounds that the other employee will not be put in danger.
Refer to CLC Part II, Subsection 129(5)
If the CASI-OH&S decides that the danger exists, they will issue the appropriate directions to correct the situation, and the employee may continue to refuse to work until the directions are complied with, or until they are varied or rescinded as the result of an appeal.
Refer to CLC Subsections 129(6), 145(2) and 145(2.1)
- An employer that feels aggrieved by a direction may appeal it in writing to an appeals officer, within 30 days after the date of the direction.
- Unless otherwise ordered by the appeals officer, an appeal of a direction does not operate as a stay of the direction.
- The appeals officer may vary, rescind or confirm the direction, and may also issue any direction they consider appropriate.
Refer to CLC Part II, Subsections 146(1), 146(2) and 146.1(1)
- The employee returns to work.
Important: At this stage, the employee who chooses not to return to work is no longer protected by the CLC Part II.
- The employee may appeal the CASI-OH&S decision in writing to an appeals officer, within 10 days after receiving notice of the decision.
- The appeals officer may vary, rescind or confirm the decision, and may also issue any direction they consider appropriate.
Note: An appeals officer’s decision is final and shall not be questioned or reviewed in any court. However, an employer or employee aggrieved by an appeals officer’s decision may apply for judicial review of the decision in accordance with the Federal Court Act.
Refer to CLC Part II, Subsections 129(7), 146.1(1) and Section 146.3
It is against the law for an employer to impose or threaten disciplinary action against an employee who has acted in accordance with, or who has sought the enforcement of, any of the provisions of the CLC Part II. If this happens, the employee has the right to appeal to the Canada Industrial Relations Board.
Equally important for employers to note is that the CLC Part II, also states that after all the investigations and appeals have been exhausted by the employee who exercised their right to refuse dangerous work, the employer may take disciplinary action against the employee, provided the employer can demonstrate the employee has willfully abused those rights.
Refer to CLC Part II, Section 147 and Subsection 147.1(1)
For additional information on this or any other subject pertaining to Aviation Occupational Health and Safety (OH&S) for employees working on board aircraft in operation, please contact your nearest regional CASI-OH&S, or OH&S at the following link: http://www.tc.gc.ca/eng/civilaviation/standards/commerce-ohs-menu-2059.htm
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