Bill 30 and the right to refuse

This week, Alberta’s government introduced Bill 30 (An Act to Protect the Health and Well-being of Working Albertans). This legislation replaces the existing Occupational Health and Safety Act as well as amended the Workers’ Compensation Act.

As the changes in Bill 30 are significant, I’ll be making a series of posts over the next week about different aspects of Bill 30.

Today I’m going to examine the right to refuse. Under the current OHS Act, Alberta workers have an obligation to refuse unsafe work if it poses imminent danger to the worker or endanger another worker.

35(1) No worker shall 

(a) carry out any work if, on reasonable and probable grounds, the worker believes that there exists an imminent danger to the health or safety of that worker,
(b) carry out any work if, on reasonable and probable grounds, the worker believes that it will cause to exist an imminent danger to the health or safety of that worker or another worker present at the work site, or
(c) operate any tool, appliance or equipment if, on reasonable and probable grounds, the worker believes that it will cause to exist an imminent danger to the health or safety of that worker or another worker present at the work site.

Bill 30 replaces that and establishes a right to refuse unsafe work (which is the Canadian norm):

31(1) Subject to this section and section 5, a worker may refuse to work or to do particular work at a work site if the worker believes on reasonable grounds that there is a dangerous condition at the work site or that the work constitutes a danger to the worker’s health and safety or to the health and safety of another worker or another person.

There are two significant differences. The first is that Bill 30 re-frames refusals as a right instead of as an obligation. While the effect of this reframing is minimal, it sends an important message: a safe workplace is a worker’s right. For a long time, Alberta’s lax enforcement of its OHS laws have created an acceptance that it is okay to trade worker safety off against employer profitability. Setting out safe workplaces as a right serves an important normative function.

Second, Bill 30 dispenses with the qualifier in the current Act that unsafe work must pose an imminent danger in order for a worker to refuse it. In the current Act, imminent danger is defined as;

35(2) In this section, “imminent danger” means in relation to any occupation
(a) a danger that is not normal for that occupation, or
(b) a danger under which a person engaged in that occupation would not normally carry out the person’s work.

This definition limits refusals to situations where a worker faces an unusual danger. Regular dangers don’t qualify. This definition allowed employers significant wiggle room when confronted with a refusal and makes it harder for workers to resist unsafe working conditions.

For example, repetitive motions are a normal part of cashier work. The danger they pose is that they lead to repetitive strain injuries (e.g. carpal tunnel). Under the old Act, repetitive motions is a normal danger and there would be no right to refuse. Under the new Act, I would suggest a refusal is possible. This ought to motivate employers to better address hazards that have been built into the production process.

The new language also contemplates a role for joint health and safety committee members in investigating refusals and it requires the employer to disclose the hazard to any other worker directed to do the work. This reduces the ability of employers to leave hazards unremediated by just asking some other worker to do the unsafe work (a common employer tactic).

Three quick observations:

1. Unsafe work is a common thing. A recent study I have completed with two colleagues suggests that about 16% of Alberta workers face one or more instances of unsafe work each year.
2. A frequent employer argument against refusals is that workers will use refusals mischievously or unions will weaponize refusals to achieve collective bargaining aims. There is no evidence to support these claims. In act, our study suggests that workers dramatically under-refuse unsafe work, refusing only 33.6% of instances when they are exposed to unsafe work.
3. Changing Alberta’s “git’er dun” culture (where unsafe work is an accepted norm) will require significant efforts to educate employers and workers about this new right as well as meaningful enforcement when employers illegally) retaliate against workers who refuse (which happens in about 20% of refusals).

Overall, this amendment to the OHS Act is a significant improvement in the legislative language around refusals. Whether it will meaningfully affect Alberta workers is an open question that will depend upon the government’s efforts to education and enforce the law.

-- Bob Barnetson