Canada–Newfoundland and Labrador Atlantic Accord Implementation Act (S.C. 1987, c. 3)

Reprisals and Complaints

Definition of reprisal action

• 205.059 (1) In this section and in sections 205.06 and 205.062, reprisal action means an action that

  • (a) adversely affects an employee with respect to their terms or conditions of employment or any opportunity for employment or promotion, including dismissal, lay-off, suspension, demotion, transfer of job or location, discontinuation or elimination of the job, change in hours of work, reduction in wages or benefits, coercion, intimidation or the imposition of any disciplinary sanction, reprimand or other penalty; and

  • (b) is taken, in whole or in part, because the employee has acted in accordance with the provisions of this Part or of the regulations made under this Part or with a decision or order made under any of those provisions or has taken steps to ensure that those provisions are complied with.

• Marginal note:Prohibition

  (2) No operator, employer, provider of services or union shall take, or threaten to take, reprisal action against an employee.

• Marginal note:No action against employee

  (3) Without limiting the generality of subsection (2), actions referred to in paragraph (1)(a) cannot be taken against an employee for

  • (a) seeking to establish a committee, participating in the establishment or work of a committee or acting as a member of a committee or as a coordinator;

  • (b) acting as an observer under section 205.048;

  • (c) making a report under section 205.049;

  • (d) refusing to perform an activity under section 205.05, refusing to be transported under section 205.054 or ceasing to perform a job under section 205.056;

  • (e) requesting the employer under section 205.057 to modify the functions connected with the employee’s regular work or to reassign the employee;

  • (f) seeking access to information to which the employee is entitled under this Part;

  • (g) testifying in any proceeding or inquiry under this Part; or

  • (h) giving information in accordance with the provisions of this Part or of the regulations made under this Part or with a decision or order made under any of those provisions to a committee, a coordinator, a health and safety officer or any other person having duties or functions under this Part, or under Part III as it relates to safety.

• Marginal note:Disciplinary action

  (4) Despite paragraph (3)(d), any action referred to in paragraph (1)(a) may be taken against an employee who has exercised rights under section 205.05 or 205.054 after all avenues of redress have been exhausted by the employee, if the operator, employer, provider of services or union taking the action can demonstrate that the employee has wilfully abused those rights.

• Marginal note:Reasons

  (5) The operator, employer, provider of services or union shall provide the employee with written reasons for any action taken under subsection (4) within 15 days after the day on which a request is received from the employee to do so.

Marginal note:Application by employee for decision

• 205.06 (1) An employee may, either personally or through a representative, apply to the provincial labour relations board for a decision as to whether

  • (a) an employer or provider of services has failed to pay wages or grant benefits to the employee that are required under subsection 205.019(2), 205.044(4), 205.045(7), 205.048(6), 205.051(2), 205.052(2) or (3), 205.053(1) or (2), 205.055(2) or (3), 205.056(6) or 205.058(2) or (5); or

  • (b) a person or organization has taken or threatened to take reprisal action against the employee contrary to subsection 205.059(2).

• Marginal note:Time limit

  (2) The application shall be made within 90 days after the day on which the grounds for the application became known or ought to have become known to the employee.

• Marginal note:Burden of proof

  (3) In a proceeding before the provincial labour relations board in respect of an allegation that reprisal action referred to in paragraph (1)(b) has been taken or threatened, the burden of proving that no such reprisal action has been taken or threatened is on the person or organization against whom the allegation is made.

• Marginal note:Conduct of proceeding

  (4) The rules of practice and procedure that apply to applications for the determination of a matter made under the Labour Relations Act, R.S.N.L. 1990, c. L-1, as amended from time to time (in this section and in sections 205.063, 205.1 and 205.103 referred to as the “Provincial Labour Relations Act”) apply to applications made under subsection (1).

• Marginal note:Costs

  (5) The costs incurred by the provincial labour relations board in respect of an application made under subsection (1), including the remuneration of its members, shall be paid by the Board as defined in section 2.

• Marginal note:Powers, privileges and immunities

  (6) The provincial labour relations board and each of its members has the powers, privileges and immunities granted by the Provincial Labour Relations Act.

• Marginal note:Non-application of Federal Courts Act

  (7) For the purposes of the Federal Courts Act, the provincial labour relations board, when exercising jurisdiction or powers under this section, is not a federal board, commission or other tribunal as defined in subsection 2(1) of that Act.

• Marginal note:Grievance under collective agreement

  (8) An employee who is aggrieved by a subject-matter described in paragraph (1)(a) or (b) should, if the employee is bound by a collective agreement that provides for final and binding arbitration of grievances in respect of the subject-matter, present a grievance under the agreement.

• Marginal note:Exercise of rights

  (9) An employee who exercises their right within the time permitted under the collective agreement is not permitted to make an application under subsection (1) in respect of the same subject-matter unless it is determined that the arbitrator does not have jurisdiction to hear the grievance. In that case, the employee may, within 90 days after the day on which a final determination is made that the arbitrator does not have jurisdiction, make an application under that subsection.

Marginal note:Notice of decision

205.061 If the provincial labour relations board dismisses an application made under subsection 205.06(1) it shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employer, provider of services, person or organization that is the subject of the application.

Marginal note:Order to pay wages or grant benefits

• 205.062 (1) If the provincial labour relations board decides that an employer or a provider of services that is providing services related to the placement of an employee has failed to pay wages or grant benefits to the employee that are required under this Part, it may order the employer or provider of services, as the case may be, subject to any terms and conditions that it considers appropriate,

  • (a) to pay those wages or grant those benefits; and

  • (b) to take any other measure necessary to remedy the matter.

• Marginal note:Order in case of reprisal action

  (2) If the provincial labour relations board decides that a person or organization has taken reprisal action contrary to subsection 205.059(2), it may, subject to any terms and conditions that it considers appropriate, order

  • (a) the reinstatement of an employee by an employer on the same terms and conditions under which the employee was employed immediately before the reprisal action;

  • (b) the payment or the granting to an employee, by the person or organization, of any wages or benefits that the employee would have been entitled to but for the reprisal action;

  • (c) the removal of any reprimand or other references to the matter from the records of any person or organization;

  • (d) the reinstatement of an employee to a union if the employee has been expelled by the union; and

  • (e) the taking by the person or organization of any other measure necessary to remedy the matter.

• Marginal note:Order in case of threat of reprisal action

  (3) If the provincial labour relations board decides that a person or organization has threatened to take reprisal action contrary to subsection 205.059(2), it shall order the person or organization not to take that action.

• Marginal note:Copy of order to Chief Safety Officer

  (4) The provincial labour relations board shall, immediately after making an order under this section, give a copy of it to the Chief Safety Officer.

• Marginal note:Order to specify breach

  (5) An order made under this section shall specify the provisions of this Part or of the regulations made under this Part that have not been complied with or the nature of any reprisal action taken or threatened to be taken contrary to subsection 205.059(2), as the case may be.

Marginal note:Application by employer or provider of services

• 205.063 (1) An employer or a provider of services may apply in writing to the provincial labour relations board for a determination as to whether

  • (a) an employee has received wages and benefits under subsection 205.052(3) knowing that no circumstances existed that would warrant the employee’s refusal, under section 205.05, to perform an activity; or

  • (b) an employee has received wages and benefits under subsection 205.055(3) knowing that no circumstances existed that would warrant the employee’s refusal, under section 205.054, to be transported.

• Marginal note:Time limit

  (2) The application shall be made within 30 days after all avenues of redress have been exhausted by the employee.

• Marginal note:Burden of proof

  (3) The burden of proving that no circumstances existed that would warrant the refusal by the employee is on the employer or the provider of services.

• Marginal note:Conduct of proceeding

  (4) The rules of practice and procedure that apply to applications for the determination of a matter made under the Provincial Labour Relations Act apply to applications made under subsection (1).

• Marginal note:Costs

  (5) The costs incurred by the provincial labour relations board in respect of an application made under subsection (1), including the remuneration of its members, shall be paid by the Board as defined in section 2.

• Marginal note:Powers, privileges and immunities

  (6) The provincial labour relations board and each of its members has the powers, privileges and immunities granted by the Provincial Labour Relations Act.

• Marginal note:Non-application of Federal Courts Act

  (7) For the purposes of the Federal Courts Act, the provincial labour relations board, when exercising jurisdiction or powers under this section, is not a federal board, commission or other tribunal as defined in subsection 2(1) of that Act.

Marginal note:Notice of decision

205.064 If the provincial labour relations board dismisses an application made under subsection 205.063(1), it shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employee who is the subject of the application.

Marginal note:Notice of decision

205.065 If the provincial labour relations board determines that an employee has received wages and benefits under subsection 205.052(3) or 205.055(3) knowing that no circumstances existed that would warrant the refusal by the employee under section 205.05 to perform an activity, or the refusal by the employee under section 205.054 to be transported, as the case may be, it shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employee who is the subject of the application.

Activities of Board

Marginal note:Research, studies and programs

• 205.066 (1) The Board may, for the purposes of this Part,

  • (a) undertake research into the causes of and the means of preventing or reducing occupational injury and illness;

  • (b) cause studies to be made into occupational health and safety;

  • (c) publish the results of the research or studies;

  • (d) compile, prepare and disseminate information related to occupational health and safety obtained from the research and studies;

  • (e) implement programs to prevent or reduce occupational injury and illness; and

  • (f) implement — in accordance with the regulations, if any — programs for medical monitoring and examination related to occupational health and safety, request any employer to do so or appoint any medical practitioner qualified in occupational medicine to do so.

• Marginal note:Consent for medical monitoring or examination

  (2) For the purposes of paragraph (1)(f), medical monitoring or examination of an employee may be conducted only with the employee’s written consent.

• Marginal note:Cooperation with governments, etc.

  (3) The Board may carry out the activities described in paragraphs (1)(a), (e) and (f) in conjunction with any department or agency of the Government of Canada, the government of any province or a foreign government, or with any other organization that carries out similar activities.

Marginal note:Guidelines and interpretation notes

• 205.067 (1) The Board may issue and publish, in any manner that it considers appropriate, guidelines and interpretation notes with respect to the application and administration of this Part.

• Marginal note:Not statutory instruments

  (2) The guidelines and interpretation notes are not statutory instruments for the purposes of the Statutory Instruments Act.

Authorization

Marginal note:Recommendation of Chief Safety Officer

• 205.068 (1) On receipt under subsection 138(3.1) of an application for an authorization, or to amend an authorization, the Chief Safety Officer shall

  • (a) consider the potential impact of the work or activity to be authorized on the health and safety of employees engaged in the work or activity; and

  • (b) make a written recommendation to the Board on the matters considered.

• Marginal note:Board to take recommendation into account

  (2) In deciding whether to issue or amend an authorization, the Board shall take into account the recommendation of the Chief Safety Officer.

• Marginal note:Authorization — occupational health and safety

  (3) In addition to any requirement or approval determined by the Board under Part III to which an authorization is subject, the authorization is also subject to any requirements and approvals, not inconsistent with the provisions of this Act or the regulations, that the Board determines relate to occupational health and safety.

Substitutions

Marginal note:Powers of Chief Safety Officer — workplace

• 205.069 (1) The Chief Safety Officer may, on application, permit the use at a workplace, for a specified time and subject to specified conditions, of specified equipment, methods, measures, standards or other things, in lieu of any required by regulations made under this Part, if he or she is satisfied that protection of the health and safety of employees at the workplace would not be diminished and the granting of the permission is not otherwise prohibited by regulation.

• Marginal note:No contravention

  (2) The regulations are not considered to be contravened if there is compliance with a permission under subsection (1).

• Marginal note:Application

  (3) The application shall

  • (a) be in a form acceptable to the Chief Safety Officer;

  • (b) include information with respect to the consequences to health and safety that might reasonably be anticipated if the permission is granted; and

  • (c) be accompanied by technical information sufficient to enable the Chief Safety Officer to make a decision on the application.

• Marginal note:Public notice

  (4) On receipt of the application, the Chief Safety Officer shall make it available to the public in a manner that he or she considers advisable, together with a notice that submissions may be made to him or her for a period of 30 days — or any shorter period fixed by him or her with the agreement of the applicable workplace committee — after the day on which the application has been made available.

• Marginal note:Notice at workplace

  (5) If the application is made in respect of an existing workplace, the applicant shall give a copy of the application to the operator. An operator shall, immediately after it receives or makes an application relating to an existing workplace

  • (a) post a copy of it in printed form in a prominent place at the workplace; and

  • (b) provide a copy to any committee established for that workplace and to any union representing employees within the offshore area.

• Marginal note:Decision

  (6) The Chief Safety Officer shall, as soon as possible after the end of the period referred to in subsection (4), inform, in a manner that he or she considers advisable, the applicant, the operator and the public of the decision made on the application.

• Marginal note:Reconsideration of decision

  (7) The Chief Safety Officer may, on his or her own initiative or on application by the applicant for the permission under subsection (1), reconsider, confirm, vary, revoke or suspend a decision made on the application at any time if information is made available that, had it been known when the decision was made, would reasonably be expected to have resulted in a different decision from the one made at that time. In that case, subsections (1) to (6) apply with the necessary modifications.