The Right to Refuse Unsafe Work
The Right to Refuse Unsafe Work is more than just a Right. It is your Responsibility, or so we were led to believe. 3.12 and 3.13 is supposed to be your safety net above all else. "A worker must not be subject to discriminatory action as defined in section 150 of Part 3 of the Workers Compensation Act because the worker has acted in compliance with section 3.12". But there's the word with a hidden meaning that actually discriminates against the vast majority of the workforce. If you're a sole proprietor, charge GST, and promote yourself as a company , you are NOT a worker. According to the Practice Directives of WorkSafe BC. The Sections 1-1-3 (A) and 1-1-3 (B) basically states you are an independent operator if you are a "For Profit" contractor. On the surface this is the reality.
The Hidden Law
If you're a subcontractor who has skin in the game, meaning you supply material along with labour. You are not a worker as defined by WorkSafe BC. With that being said, if you refuse unsafe work, then terminated for doing so, you CAN NOT file for Discrimination under the Workers Compensation Act Part 3 Division 6 Section 150 - 153. Consequently, your company can be destroyed and loss everything if you refuse unsafe work. I didn't understand this, nor did I even here of this law until I read a judgement by H.K. Marcus, a lawyer with WorkSafe BC. Your category is one of an independent contractor. You can come and go from a site as you please. If a section isn't ready for the installation of your materials that your contracted to install, you can go to another site.
A Challengeable Loophole
What about a subcontractor who does not supply materials. They have a registered company, advertise aggressively, charge GST, yet only supplies them self as labour in a sole proprietorship structure. Unlike a temporary labour firm that supplies one or ten workers to a single site, they make a profit on every hour worked by every worker send out. Whereas a sole proprietor is only making an hourly wage. In addition a GST tax is charged. Take for instance a sub contracted First Aid Attendant. They can not leave early. First to Show - Last to Go has always been my motto. The contract could last for the duration of the entire project. They still might be classified as a 'Independent Operator' , not a 'Worker' and do not meet the definition as a 'For Profit' company.
Thus, a decision-maker must determine, examine, and interpret the actualities of the contract underlying the relationship between the service recipient and a service provider in order to establish whether the service provider exists as a business enterprise independently of the service recipient. These questions are used in determine the difference form a for profit independent operator and a worker. They are not the only deciding factors, however they do play a major role in the definition. The Right to Refuse Unsafe Work could be hurtful to your company.
The Major Test
- whether the services to be performed are essentially services of labour; and
- the degree of control exercised over the individual doing the work by the person or entity for whom the work is done;
- whether the individual doing the work might make a profit or loss;
- whether the individual doing the work or the person or entity for whom the work is done provides the major equipment;
- if the business enterprise is subject to regulatory licensing, who is the licensee;
- whether the terms of the contract are normal or expected for a contract between independent contractors;
- who is best able to fulfill the prevention and other obligations of an employer under the Act;
- whether the individual doing the work engages continually and indefinitely for one person or works intermittently and for different persons; and
- whether the individual doing the work is able or required to hire other persons.
Imagine a tile installer who wants to achieve the Canadian dream. The ability to send their kids to university and acquire a nice retirement. Including yourself, 3 installers total are working on a job site when you're directed to do the install in a suit. All materials are pre-paid for by your company. When entering the unit, the fumes from recent spray foaming on an outer wall are overpowering. A decision is clear and mutual from all three to Refuse the work as it is unsafe to proceed. The superintendent states "You will be terminated from the contract if you refuse" . Initiated is the procedure for the Right to Refuse Unsafe Work . Immediately the Super terminates your contract. In accordance with 1-1-3 (A) there is no legal way you can initiate a discrimination claim.
As a for profit company, small claims court is your only action. Yes you have called WorkSafe BC and an Occupational Safety Officer investigates. That doesn't help you financially. You are a small 3 person company and due to the WorkSafe BC Policy 1-1-3 (A) The company you built from scratch has now been destroyed. As for a discrimination suit, you have no recourse. Filing for bankruptcy is the only option. Two other families consequently are also affected since you have to lay off your only employees. An unscrupulous person can do so much damage to others because of this directive. It's wrong and needs to go.
It is my opinion that this directive should not exist. The Right to Refuse Unsafe Work should be free from termination. No matter who initiates it, if that person is fired then they should be able to file under Part 3 Division 6. Furthermore, when I was in class studying the regulations and being instructed, this scenario was never mentioned. Myself and a vast amount of my colleagues feel that we have been lying to workers and subs for years when we delivered an orientation. Believing they were protected was a lie. Plan truth, it was bullshit. This flies in the face of what we do as safety professionals and undermines the whole Occupational Health and Safety culture we have tried so hard to maintain and make better.