The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
Brought to you by www.dieselduck.net, comments to [email protected]
Unsafe Working Conditions: Rights and Responsibilities of Workers and Employers
Since the earliest example of a person trading their labour for reward in an adventure at sea, the question has arisen: "is this work more dangerous than it needs to be?". Either as a worker or an owner/employer, knowing how to respond to the issue of an unsafe work condition is critical to preserving your rights and remedies. A worker that does not follow the rules of responding to an apparent unsafe work condition can be subject to consequences such as loss of pay, termination of employment, or even a lawsuit for negligence by the employer or fellow employees. An owner/employer that does not prevent or mitigate an unsafe work condition, or improperly disciplines a worker for refusal to work in an unsafe condition, can be at risk of regulatory penalties, costly civil lawsuits, and even criminal proceedings.
Sources of Law
The law regarding unsafe working conditions comes from three
sources: contracts between parties (including collective bargaining
agreements), legislation (federal and provincial), and common law
(decisions of courts and arbitrators). While many of the principles
that flow from these three sources of law are similar, a worker or
an employer must determine which particular law applies to the
circumstances in order to determine the specific legal requirements.
The following questions should be asked in determining what law
applies to the worker/employer: Is there a union involved? If the
worker is unionized than the collective bargaining agreement ("CBA")
will be the primary document regarding the rights and
responsibilities of the worker and the employer. The CBA will
describe steps to be taken when an unsafe working condition is said
to exist - the requirements must be followed strictly. The terms in
the CBA will reflect the minimum steps required under either the
Canada Labour Code and regulations, or the B.C. Workers Compensation
Act ("WCA") and regulations, but will often provide more detailed
requirements. Whether the Labour Code or the WCA applies depends on
whether the work is federally or provincially
regulated.
Is the Work Federally or Provincially Regulated? If the marine work
is federally regulated the Labour Code and its Marine Occupational
Safety and Health Regulations will apply. If the work is
provincially regulated the Workers Compensation Act and the
Occupational Health and Safety Regulations will apply. Unless the
employer has established a relationship with either Transport Canada
(the responsible authority for marine work under the Labour Code) or
the Workers Compensation Board under the WCA, it can be unclear
which legislation applies.
For example, on their website, Transport Canada maintains the
Labour Code applies to "employees when they are on board a ship",
while WCB typically claims jurisdiction over workers on fishing
boats and passengers vessels that do not trade outside of a
provincial boundary. This conflict between which legislation
applies, federal or provincial, is reflective of the two
governments' ongoing struggle to determine their individual
jurisdictions without overlapping or leaving any seaman/vessels
unregulated. Which legislation applies will be determined by a host
of factors, including size of vessel, where it trades, what it
carries - and each circumstance must be viewed separately in order
to determine which is the applicable legislation. The requirements
of both pieces of legislation are discussed below.
Are there other contract terms between the worker and employer? If a
union is involved the CBA will be the primary contract document
between the worker and employer. When no union is involved, there
may be a written contract that speaks to unsafe work and what to do
about it, though such a contract is uncommon. Where there is no
contract it is open to the parties to argue the agreement for labour
includes unwritten or implied terms regarding unsafe work, although
the rights and responsibilities under the Labour Code and the WCA
described below will address the vast majority of concerns.
What legislation says
The principles behind both the federal Labour Code and the
provincial WCA provisions regarding unsafe work are the same: the
employer and the employee must take reasonable steps to ensure there
is a reasonably safe work environment (this includes workers and
employers reporting
hazardous circumstances to each other); the worker can refuse unsafe
work without loss of pay or fear of reprisal provided they have a
reasonable basis for believing the work is unsafe and provided the
refusal to work does not' otherwise endanger the safety of others or
interfere with
the safe operation of the vessel.
The WCA provides that workers can decline work if they feel it is
"unsafe" to themselves or others, while the Labour Code the work
must constitute a "danger" to the worker or to others to be
rightfully refused. While the legislation uses different words, the
intent is arguably the same - "unsafe" or "dangerous work" is work
that involves an unnecessary risk of harm to the worker or to
others.
Under both pieces of legislation, work that is normally unsafe or
hazardous cannot be refused. That is, a deckhand cannot refuse to
work because the deck is slippery when it is wet and cold, and an
engineer cannot refuse to check the oil on the main because the
block is hot. The danger must be something that is more than
necessarily inherent to the work for it to be refused. Unlike the
WCA, the Labour Code makes special provision for refusing work on
ships and aircraft.
It provides that the worker can report an unsafe condition to the
supervisor or the employer and the employer can decide whether the
employee may, "having regard to the safe operation of the ship",
discontinue work. If the employer decides the employee may not
refuse the work and advises the employee as such, the employee is
obliged to continue work. While this sounds severe, the employee
retains the ultimate ability (but not necessarily the right) to
refuse the work regardless of the legislation, and any subsequent
discipline by the employer would be subject to being set aside on
the basis that the employee was acting reasonably, as discussed
below.
That being said, it is illegal for an employer or the agent to
intimidate, coerce, discipline,
or fire a worker for refusing work that involves an unnecessary risk
of harm to the worker or to others. A worker that feels they have
been disciplined can complain to the Canada Industrial Relations
Board (under the Labour Code), or to the WCB (under the WCA). A
unionized worker would first file a grievance however.
Proper Procedure for Refusing Unsafe/Dangerous work:
The federal Labour Code and the provincial WCA both have similar steps that must be followed in refusing unsafe work:
Discipline for Refusing Unsafe Work:
Even though a worker follows the procedure set out above for reporting unsafe work, the worker might still be disciplined by the employer for refusing work. Whether that discipline is lawful will depend on whether:
In Cates v. Seafarer's International Union of Canada (1998) the
union grieved a two week suspension imposed on a deckhand who
refused to board a chemical barge for fear of his safety. The Labour
Code, and not the WCA, applied in this case. The matter went to
arbitration and the arbitrator doubted the deckhand had a sincere
belief he was in danger. The arbitrator noted the deckhand has been
on the chemical barge both before and after the day of the refusal
without training and had not made a complaint then. The arbitrator
noted that "[the deckhand] agrees if he had received something in
writing indicating training was not required he would have boarded
[the barge]", and also stated: "a person who truly believes a
situation was dangerous would not have a change of heart because of
a piece of paper".
IBEW v. Jim Pattison Sign Co. (2004 BCAB), an interesting though
non-marine case, involved two welders who refused to work in a shop
because of aluminum welding fumes. In this case the WCB regulations
applied. Again, the test applied by the arbitrator in determining
whether the workers acted properly in refusing work was not whether
the work was actually unduly hazardous, but whether the worker had a
reasonable basis to believe it was. The arbitrator in that decision
quoted from another case, Re Industrial Health and Safety
Regulations, Decision No. 349, which held:
" if the investigatory procedures result in a determination that there was no undue hazard, that does not mean that the worker refusing to work had no reasonable cause to believe that such a hazard did exist. That worker may not have the expert knowledge available to his union, employer, or the Board. He may have been misinformed by or misunderstood what he has read, seen, or heard in the past. On the basis of simple common sense or intuition, he may consider that an undue hazard exists when, in fact, it does not. A worker may only be disciplined if there was no undue hazard and he had no reasonable cause to believe there was such a hazard. "
In other words, the worker with reasonable cause to believe an
undue hazard exists does not have to be correct. The examination is
to determine whether the employee's apprehensions were objectively
reasonable. The question is "whether the average employee at the
workplace, having regard to his general training and experience,
would, exercising normal and honest judgment, have reason to believe
that the circumstances presented an unacceptable degree of hazard."
To this extent, the motives of the worker refusing work are closely
examined by arbitrators and courts. A recent case involved a tug
captain being terminated for refusing to deliver logs booms on the
basis that the tug he was assigned suffered from poor
manoeuvrability, stability and lighting. In assessing whether the
worker had an honest belief that the work was unsafe the arbitrator
stated:
"Based on the evidence, this Board has grave concerns about the true beliefs of [the master] on August 12. It is clear that he did not like to operate the [vessel] but that is a different issue from whether it was unsafe. Of particular concern is that if [the master] honestly felt the vessel was unsafe why had there been no written communication in the logs or in notes to the mechanic related to those concerns. Why did [the master] not formally record his concerns so that other captains and deckhands as well as management and the authorities would have to address those potential problems? The evidence is clear [the master] never said anything to the other pilots or to the Company's mechanic. If [the master] truly believed his assertions concerning safety, he had a moral, and perhaps even a statutory duty, to raise those concerns with others."
Cases such as this make it clear that workers who chose to refuse
unsafe work are best served in reporting recurring dangerous
circumstances prior to the actual refusal, or for singular events of
unsafe work, reporting the condition promptly and recording the
details of the event as much as practical.
In the end, employers must take allegations of unsafe work
conditions extremely seriously, and workers must act responsibly in
choosing why, when and how to report unsafe work conditions. Like
the boy who cried wolf, unnecessary and unanswered calls for help
may only lead to more harm. Workers will be protected from reprisal
for refusing unsafe work only if their belief in potential h m is
reasonable, and their motives pure.
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for question or comment by phone at 250-478-9928 or by email.