Three Rights

The Occupational Health and Safety Act entitles all employees to three fundamental rights:

1. The right to know about health and safety matters.
2. The right to participate in decisions that could affect their health and safety.
3. The right to refuse work that could affect their health and safety and that of others.

1. Right to Know

The right to know can take many forms and is normally the employer's responsibility. This fundamental employer responsibility begins with Section 9 of the OSH Act (often referred to as the General Duty provisions or clause). Similar obligations exist for supervisors,  contractors, contracting employers, owners, and suppliers.

The key requirements of this section include the employer's obligation to provide as much information, instruction and training as is necessary to ensure employees' health and safety. Information can be in the form of product labels, safety data sheets, safe work procedures and codes of practice. Instructions can be verbal or in writing and be provided by a supervisor, another employee at the workplace or external providers. Training can be workplace specific, delivered by someone in the workplace, or be provided by outside agencies or training consultants who specialize in specific topics. Training can also be delivered online or in a classroom-type setting, or through a combination of both.

In addition to the requirements found under the OHS Act, the regulations also have similar references for providing information, instruction and training on specific topics.

One way that employers can meet their obligations includes providing education, instruction and training on:

1. Workplace hazards identified during day-to-day operations, entire facility inspections, daily pre-use inspections of tools, equipment and machinery, reporting mechanisms for sub-standard working conditions, communications standards for people working alone and the process for correcting substandard conditions.
2. Safe work policies, procedures and codes of practice, as required by both the legislation and the internal company standards.
3. Emergency procedures, emergency evacuation, first aid legislation and first aid procedures, incident reporting and investigation procedures.
   

2. The Right to Participate

The right of employees to participate in matters that could affect their health and safety at the workplace is integral to an effective IRS. This right allows employees to have input on the measures to be taken by the employer to ensure employee health and safety.

Two things need to happen for this to succeed:

1. Employees must provide input on what would make the workplace safe. As an employee, you can do this by:
   1. Participating as a member of the Joint Health and Safety Committee (if the workplace requires one).
   2. Being a health and safety representative for the workplace when given the opportunity.
   3. Reporting any concerns whenever you encounter a health and safety matter that could jeopardize your health and safety or the health and safety of your co-workers. This last step is an employee obligation found in Section 12 of the OHS Act.
2. Your employer or supervisor needs to act promptly on all health and safety issues identified by employees. As mentioned earlier, this is a requirement under the OSH Act.

There are many other opportunities found in the legislation where you as an employee, a health and safety representative or a member of a JHSC can have input in making your workplace safer. Review the OHS Act and the regulations to determine which provisions might apply for processes and operations regarding your workplace.

3. The Right to Refuse

The right to refuse is normally used and required when the first two rights fail to ensure your health and safety. Exercising this right is serious and should not be done lightly or as a routine method of solving workplace problems.

However, employees should not be afraid to exercise their right to refuse when they believe that the work will endanger their health or safety, or that of others. The right to refuse process involves several steps. While WorkSafeNB has developed a series of resources to follow for an effective and legal work refusal, here are the key steps to follow:

1. You must let your supervisor know what is unsafe about your work. The OHS Act requires that your supervisor respond to your concerns, and, if in agreement, must take corrective action(s) to resolve the matter. If your supervisor disagrees with you they should explain why they disagree.
2. If you are not satisfied with your supervisor's action(s) and your workplace has a JHSC, advise your JHSC of your concerns. The JHSC must conduct an investigation on your behalf and provide a decision on their findings; if they agree with you they must make recommendations to your employer to take corrective measures to remedy the unsafe situation.
3. If you are not satisfied with the JHSC's action(s) or if there is no JHSC, you must contact a WorkSafeNB health safety officer who is responsible to investigate your concern. If the officer agrees with you, the officer will issue order(s) to rectify the matter; if the officer disagrees with you, the officer will advise you to return to work.
4. If you disagree with the officer's decision, you have a right to appeal to WorkSafeNB's chief compliance officer.
5. The employer or supervisor has the right to temporarily reassign an employee who has refused unsafe work to perform other work.
6. An employer or supervisor may also assign another employee to perform the work, but only after advising the other employee of the work refusal and reasons. If another employee accepts to carry out the work, WorkSafeNB consider the work refusal concluded. Any on-going concerns can be reported to WorkSafeNB.
7. At all times during a work refusal process, employees are strongly encouraged to document their concerns regarding the dangerous situation or condition, persons they have spoken to, and the outcome of any conversations. A sample right to refuse form is available as an example.

Discriminatory Action

Employee's rights are protected against discriminatory actions from employers, supervisors or unions . An employer, supervisor or union is prohibited from taking any discriminatory action, threatening to take any discriminatory action or intimidating or coercing an employee that has:

• Sought the enforcement of the Act, its regulations or an order made by an officer under the Act or its regulations.
• Acted in compliance with the Act, its regulations or an order made by an officer under the Act or its Regulations.
• Sought enforcement of the Smoke Free Places Act, or its regulation or an order made by an officer under that Act or its regulation

An employee who files a complaint of discriminatory action can choose arbitration under a collective agreement, if the workplace has such an agreement or file a complaint with WorkSafeNB. An employee who files a complaint with WorkSafeNB must complete a complaint form (Form 1) that gives details of what occurred. The form can either be mailed or faxed to WorkSafeNB. The employee who complains of discriminatory actions has one year after the violation occurred to file a complaint with WorkSafeNB.

In New Brunswick, the Employment Standards Act protects employees' rights in other areas, including:

• Minimum wage/overtime and payroll records.
• Notice of dismissal or layoff.
• Employment as a foreign worker.
• Rest periods.
• Paid public holidays and vacation pay.

The Employment Standards Branch of the Province of New Brunswick administers this legislation and advises employers and employees. A summary of rights and responsibilities is available.

OCCUPATIONAL HEALTH AND SAFETY ACT
S.N.B. 1983, c. O-0.2

DUTIES OF EMPLOYERS, OWNERS, CONTRACTORS, SUB-CONTRACTORS, SUPERVISORS, EMPLOYEES AND SUPPLIERS

Section 9 Duties of employer

9. (1) Every employer shall

(a) take every reasonable precaution to ensure the health and safety of its employees;

(b) comply with this Act, the regulations and any order made in accordance with this Act or the regulations; and

(c) ensure that its employees comply with this Act, the regulations and any order made in accordance with this Act or the regulations.

(2) Without limiting the generality of the duties under subsection (1), every employer shall

(a) ensure that the necessary systems of work, tools, equipment, machines, devices and materials are maintained in good condition and are of minimum risk to health and safety when used as directed by the supplier or in accordance with the directions supplied by the supplier;

(a.1) ensure that the place of employment is inspected at least once a month to identify any risks to the health and safety of its employees;

(b) acquaint an employee with any hazard in connection with the use, handling, storage, disposal and transport of any tool, equipment, machine, device or biological, chemical or physical agent;

(c) provide the information that is necessary to ensure an employee’s health and safety;

(c.1) provide the instruction that is necessary to ensure an employee’s health and safety;

(c.2) provide the training that is necessary to ensure an employee’s health and safety;

(c.3) ensure that work at the place of employment is competently supervised and that supervisors have sufficient knowledge of all of the following with respect to matters that are within the scope of the supervisor’s duties:

(i) this Act and any regulations under this Act that apply to the place of employment;

(ii) any safety policy for the place of employment;

(iii) any health and safety program for the place of employment;

(iv) any health and safety procedures with respect to hazards in connection with the use, handling, storage, disposal and transport of any tool, equipment, machine, device or biological, chemical or physical agent by employees who work under the supervisor’s supervision and direction;

(v) any protective equipment required to ensure the health and safety of the employees who work under the supervisor’s supervision and direction; and

(vi) any other matters that are necessary to ensure the health and safety of the employees who work under the supervisor’s supervision and direction;

(c.4) ensure that work at the place of employment is sufficiently supervised;

(d) provide and maintain in good condition such protective equipment as is required by regulation and ensure that such equipment is used by an employee in the course of work;

(e) co-operate with a committee, where such a committee has been established, a health and safety representative, where such a representative has been elected or designated, and with any person responsible for the enforcement of this Act and the regulations.

(3) An employer shall develop a program for the inspection referred to in paragraph (2)(a.1) with the joint health and safety committee, if any, or the health and safety representative, if any, and shall share the results of each inspection with the committee or the health and safety representative.

[S.N.B. 2001, c. 35, s. 3; 2007, c. 12, s. 2; 2013, c. 15, s. 4; 2019, c. 38, s. 4; 2022, c. 32, s. 5]

Section 10 Duties of contractor and subcontractor

10. Every contractor and sub-contractor shall

(a) comply with this Act, the regulations and any order made in accordance with this Act or the regulations; and

(b) for every project site for which the contractor or sub-contractor, as the case may be, is responsible, take every reasonable precaution to ensure the health and safety of any person having access to such project site.

[S.N.B. 2022, c. 32, s. 6]

Section 10.1 Duties of contracting employer

10.1 (1) Repealed. [S.N.B. 2019, c. 38, s. 6]

(2) A contracting employer who directs the activities of one or more employers involved in work at a place of employment shall ensure, as far as is reasonably practicable to so do, that each employer complies with this Act and the regulations in respect of that place of employment.

(3) Every contracting employer shall comply with this Act, the regulations and any order made in accordance with this Act or the regulations.

(4) Notwithstanding subsection 3(1), this section does not apply to a place of employment that is a private home.

[S.N.B. 2001, c. 35, s. 4; 2004, c. 4, s. 1; 2019, c. 38, s. 6]

Section 11 Duties of owner

11. Every owner of a place of employment or part thereof shall

(a) comply with this Act, the regulations and any order made in accordance with this Act or the regulations; and

(b) take every reasonable precaution to ensure the health and safety of any person having access to or using that place of employment or part thereof.

[S.N.B. 2001, c. 35, s. 5]

Section 12 Duties of employee

12. Every employee shall

(a) comply with this Act, the regulations and any order made in accordance with this Act or the regulations;

(b) conduct themselves to ensure their own health and safety and that of other persons at, in or near the employee’s place of employment;

(c) report to the employer or supervisor the existence of any hazard of which the employee is aware;

(d) wear or use such protective equipment as is required by regulation;

(e) consult and co-operate with the committee where one has been established or with the health and safety representative where one has been elected or designated; and

(f) co-operate with any person responsible for the enforcement of this Act and the regulations.

[S.N.B. 2001, c. 35, s. 6; 2007, c. 12, s. 3; 2019, c. 38, s. 7; 2022, c. 32, s. 7]

Section 13 Duties of supplier

13. Every supplier shall

(a) take every reasonable precaution to ensure that any tool, equipment, machine or device or any biological, chemical or physical agent supplied by the supplier

(i) is reasonably safe when used as directed by the supplier or in accordance with the directions supplied by the supplier, and

(ii) complies with this Act and regulations;

(b) provide directions respecting the safe use of tool, equipment, machine or device or any biological, chemical or physical agent obtained by an employer to be used at a place of employment by employees; and

(c) ensure that any biological, chemical or physical agent supplied by the supplier is labelled in accordance with the applicable federal and provincial regulations.

[S.N.B. 2022, c. 32, s. 8]

RIGHT TO REFUSE

Section 21 Protection of employee's right

21. (1) An employee's right under section 19 to refuse to do any act is protected,

(a) if the employee has reported the employee’s concern to their supervisor under section 20,

(i) until remedial action recommended by the supervisor under section 20 is taken by the supervisor or employer to the employee's satisfaction, or

(ii) until the supervisor has advised the employee under section 20 to do that act;

(b) if the employee has referred the matter to a committee under section 20,

(i) until remedial action recommended by the committee under section 20 is taken by the employer to the employee's satisfaction, or

(ii) until the committee has advised the employee under section 20 to do that act;

(c) if the employee has referred the matter to an officer under section 20,

(i) until remedial action ordered by the officer under section 20 is taken by the employer to the officer's satisfaction, or

(ii) until the officer has advised the employee under section 20 to do that act, and

(d) if the employee has appealed the advice of an officer given under subsection 20(11) to the Chief Compliance Officer, until the decision of the Chief Compliance Officer is rendered.

(2) Where an employee has refused to do an act pursuant to section 19, the employer or supervisor shall not assign another employee to perform that act unless that other employee has been advised by the employer or supervisor of such refusal and the reasons therefor and of the employee’s rights under this Act.

[S.N.B. 2001, c. 35, s. 10; 2004, c. 4, s. 3; 2019, c. 38, s. 11; 2022, c. 32, s. 17]

Section 22 Reassignment

22. (1) Subject to subsection (2), where an employee has refused to do an act pursuant to section 19 and the employee’s right to refuse is protected under section 21, the employer or supervisor may reassign the employee temporarily to perform other acts or to other work that is reasonably equivalent to the acts or work the employee normally performs and the employer shall pay that employee the same wages and grant the employee the same benefits that they would have received if they had not refused to do the act.

(2) Where a collective agreement is in force, any reassignment referred to in subsection (1) shall be made in accordance with the collective agreement.

[S.N.B. 2019, c. 38, s. 12; 2022, c. 32, s. 18]

DISCRIMINATORY ACTION

Section 24 Discriminatory action prohibited

24. (1) No employer, supervisor or union shall

(a) take any discriminatory action against an employee, or

(b) threaten to take any discriminatory action against an employee or intimidate or coerce any employee,

because the employee has sought the enforcement of this Act, the regulations or an order made in accordance with this Act or the regulations, or has acted in compliance with this Act, the regulations or an order made in accordance with this act or the regulations or has sought enforcement of the Smoke-free Places Act or the regulations or an order made under that Act as that Act or the regulations or orders under that Act relate to a place of employment under this Act.

(2) A reassignment under section 22 is not discriminatory action under this section.

[S.N.B. 2004, c. S-9.5, s. 17; 2019, c. 38, s. 13]

Section 25 Complaint of discriminatory action

25. (1) Where an employee complains that an employer, supervisor or union has violated section 24, the employee may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint in writing with the Commission.

(1.1) A complaint referred to in subsection (1) shall be filed with the Commission not later than one year after the violation of section 24 complained of.

(2) Where the Commission receives a complaint referred to in subsection (1) within the time limit prescribed in subsection (1.1), the Commission shall refer the complaint to an arbitrator whom the Commission shall appoint.

[S.N.B. 1985, c. 64, s. 3; 2019, c. 38, s. 14]

APPEALS

Section 37 Appeal to Chief Compliance Officer

37. (1) An owner, employer, contracting employer, contractor, sub-contractor, supervisor, employee or supplier named in any order given by an officer under this Act or the regulations may, within fourteen days after the date the order was served, appeal that order by application to the Chief Compliance Officer who may confirm, vary, revoke or suspend the order appealed as promptly as is practicable.

(1.01) An owner, employer, contracting employer, contractor, sub-contractor, supervisor, employee or supplier named in a notice of administrative penalty issued under this Act may, within 14 days after the date the notice was served, appeal the administrative penalty by application to the Chief Compliance Officer who may confirm, vary, revoke or suspend the administrative penalty.

(1.1) For the purposes of subsection (1), an order of an officer includes advice in writing given to an employee under subsection 20(11).

(1.2) For the purposes of subsections (1) and (1.01), an application to the Chief Compliance Officer shall be in a form acceptable to the Chief Compliance Officer.

(2) An appeal against an order or an administrative penalty in accordance with subsection (1) or (1.01) does not suspend the operation of the order or administrative penalty, as the case may be, but the Chief Compliance Officer may order its suspension until the appeal is disposed of.

(2.1) Where the decision of the Chief Compliance Officer under this section is appealed under section 21 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act , the decision remains in effect until the Appeals Tribunal disposes of the appeal.

(3) An officer shall provide a copy of any order confirmed, varied, revoked or suspended under this section or by the Appeals Tribunal to the committee where one exists, or to the health and safety representative, if any, and where there is no committee or representative, the officer shall post a copy of the order in a prominent place at the place of employment or any part thereof.

[S.N.B. 1994, c. 70, s. 5; 2001, c. 35, s. 14; 2007, c. 12, s. 8; 2014, c. 49, s. 34; 2019, c. 38, s. 18; 2020, c. 19, s. 2; 2024, c. 5, s. 1]

38. Repealed. [S.N.B. 1994, c. 70, s. 5]

39. Repealed. [S.N.B. 1994, c. 70, s. 5]