(This preamble is for information purposes and does not form part of the formal directive.)
The National Joint Council (NJC hereafter) is working towards the amalgamation of all occupational health and safety (OHS hereafter) directives. Therefore the Refusal to Work Directive (currently Part XVII) and the Committees and Representatives Directive (currently Part XVIII) are now amalgamated.
The NJC Occupational Health and Safety Directive (the OHS Directive hereafter) contains enhancements to the Canada Labour Code Part II (the Code hereafter) [http://laws.justice.gc.ca/en/showdoc/cs/L-2/bo-ga:l_II//en#anchorbo-ga:l_II]. For a full understanding of overall responsibilities, the directive should be read in concert with the appropriate sections of the Code, and its pursuant applicable regulations.
The corresponding references to the CanadaOccupational Health and Safety Regulations (COHSR hereafter) [http://laws.justice.gc.ca/en/showtdm/cr/SOR-86-304//?showtoc=&instrumentnumber=SOR-86-304] have been inserted in brackets for your convenience.
In addition, the parties should note that the Health and Safety Committees and Representatives (HSCR) Regulations [http://laws.justice.gc.ca/en/showtdm/cr/SOR-86-305], the Marine Occupational Health and Safety (MOHS) Regulations [http://laws.justice.gc.ca/en/L-2/SOR-87-183], the Aviation Occupational Health and Safety (AOHS) Regulations [http://laws.justice.gc.ca/en/ShowTdm/cr/SOR-87-182], the On Board Trains Occupational Health and Safety (OBTOHS) Regulations, [http://laws.justice.gc.ca/en/L-2/SOR-87-184], the Oil and Gas Occupational Health and Safety (OGOHS) Regulations, [http://laws.justice.gc.ca/en/L-2/SOR-87-612], and the Non-smokers' Health Regulations [http://laws.justice.gc.ca/en/showtdm/cs/N-23.6] may also apply.
There are also hyperlinks to websites, which will give the reader additional information on technical subjects. That information, however, does not form part of this directive.
Finally, this directive also aims at complementing the occupational health and safety programs found in the federal public service. Like the legislation, it should be considered as a minimum standard that can be exceeded by an employer's occupational health and safety program.
This directive is deemed to be part of collective agreements between the parties to the National Joint Council (NJC) and employees are to be afforded, by their employer, ready access to this directive, the Code, and its pursuant applicable regulations.
In cases of alleged misinterpretation or misapplication arising from this directive, the grievance procedure, for all represented employees within the meaning of the Public Service Labour Relations Act, will be in accordance with section 15 (Resolution of Grievances) of the National Joint Council By‑Laws [http://www.njc-cnm.gc.ca/s18/s28/en]. For unrepresented employees, the departmental grievance procedure applies.
The NJC grievance procedure can be used to file a grievance for any language in the directive that provides additional protection to the Code. It shall not be used if any alternative administrative redress procedure is available under the Code.
This directive takes effect on April 1, 2008, unless otherwise specified.
This directive applies to:
- all departments and other portions of the Public Service of Canada listed in Schedules I and IV of the Financial Administration Act; and
- any employer listed in Schedule V of the Financial Administration Act that is a member of the NJC and that has opted to follow this directive.
The employer recognizes that the Code and its pursuant applicable regulations are the minimum standard with which the employer will comply.
The Code and its pursuant applicable regulations (version in force on April 1, 2008) are incorporated in this directive.
"appropriate standard" (norme appropriée) means a standard or standards, as amended from time to time, to the extent that the most recent standard provides the highest level of safety. If more than one standard meets this criterion, the standard or standards shall be selected using the following order of precedence:
- standard prescribed by the Code and its pursuant applicable regulations;
- standard prescribed by provincial and territorial occupational health and safety acts and regulations;
- any standard that has been accepted, developed, approved, prepared, published, and/or maintained by an accredited organization that assumes such responsibility, i.e. the Standards Council of Canada (SCC) (and the standards development organization for the Canadian Standards Association (CSA) of the SCC) and the International Organization for Standardization (ISO);
- standard developed by a government organization with regard to a subject area within their jurisdiction (e.g., Health Canada, Transport Canada and Environment Canada);
- standard developed by an association recognized by a majority of qualified practitioners in the field to which the standard is addressed (e.g., American Society of Heating, Refrigerating and Air-Conditioning Engineers [ASHRAE]);
- standard universally accepted by a majority of qualified practitioners.
"employer" (employeur) in this directive means a department, agency or separate employer that is a member of the NJC and that has opted to follow this directive;
"field party" (équipe de travail sur le terrain) means a field survey or field operations party, or a party operating in an area which is generally more than two hours travel time, by usually available transportation, from the nearest medical facility. However, in any unusual circumstances, an employer may apply this term to parties operating at locations less than two hours travel time from such a facility;
"person in charge" (personne responsable) means a qualified person appointed by management to ensure the safe and proper conduct of an operation or of the work of employees;
"qualified person" (personne qualifiée) means, in respect of a specified duty, a person who, because of knowledge, training and experience, is licensed or otherwise qualified to perform that duty safely and properly;
"workplace" (lieu de travail) means any place where an employee is engaged in work for the employee's employer.
Resolving "Qualified Person" Disputes
Where there is a dispute regarding the term "qualified person," the following procedure shall be implemented:
- The employee shall raise the matter directly with the person in charge.
- The person in charge shall review the employee's qualifications and decide upon the employee's status as a qualified person.
- If the employee is dissatisfied with the decision, the matter shall be referred to the workplace committee.
- The workplace committee shall review the matter and make recommendations to the person in charge, no later than 30 calendar days from the date the committee received and considered the matter.
- If the workplace committee does not consider itself competent to deal with the case, it shall recommend an acceptable third party to the person in charge no later than 30 calendar days from the date the committee received and considered the matter.
- The person in charge shall, pursuant to (d) or (e), take the recommendations into consideration; render, in writing a final management decision, including the rationale for their decision; and undertake the appropriate action no later than 30 calendar days from the date a decision was rendered by the workplace committee or acceptable third party.
When an employee does not agree with the final decision rendered, a grievance may be initiated pursuant to the NJC redress procedure (Section 15 of the National Joint Council By‑Laws [http://www.njc-cnm.gc.ca/s18/s28/en]).