By Geoff Cross
The right to refuse unsafe work has received more media attention during the pandemic than it has in years. It has been widely reported that virtually all COVID-19 related work refusals have been rejected by the Ministry of Labour. More recently it has come to light that the only chance for a COVID-19-related work refusal to be successful is if the virus is actually in the workplace (i.e. an employee who contracted COVID is on-site). This policy is dangerous and prevents workers from utilizing the right to refuse to prevent hazardous workplaces, such as getting employers to supply personal protective equipment (“PPE”) or plexiglass dividers.
We are right to be angry about Doug Ford’s gutting of the right to refuse during the pandemic. But let’s not fool ourselves that the rejection of virtually all COVID-19-related work refusals is a “Doug Ford” problem. This is not an issue of failing to heed lessons from the Campbell Commission’s report regarding the Ministry of Labour’s shortcomings during SARS. It’s not a problem in need of a policy solution or the correct legal interpretation of Ontario’s Occupational Health and Safety Act. It is a problem inherent to the ongoing struggle over workplace safety and capitalism more broadly – and it highlights the shortcomings of the right to refuse unsafe work as a means for ensuring safety.
The basic aim of the capitalist class during the pandemic is to prevent a public health crisis from turning into a crisis for production. They want to limit workers’ ability to disrupt production. Enter the long-standing concern about the right to refuse unsafe work. This right has always been disliked by employers since it can halt production. But during a pandemic when concern for health and safety is heightened, widespread work refusals are foreseeable. Not surprisingly, they’re interested in making the right to refuse ineffective and that is exactly what Doug Ford and his government is trying to do.
By denying virtually every COVID-19 related work refusal, Doug Ford’s government is exploiting the inherent limitations of the right to refuse unsafe work. He has all but taken away the remedy to the right. To be fully effective, the right to refuse unsafe work requires the Ministry of Labour to intervene and order an employer to address workplace hazards. If the probability that the Ministry will issue an order is low then employers have little to fear by not taking employee work refusals seriously.
The limitations of the right disproportionately affect racialized workers. Racialized women on the frontlines have particularly borne the brunt of the attack, such as Personal Support Workers who despite telling their employers they lack PPE have been told to do their job or be found insubordinate.
These issues with the right to refuse have been playing out for decades but are magnified during the current pandemic. While it is still an important protection, the pandemic highlights the need to think beyond the right to refuse unsafe work and focus on building and exercising collective power over jobsites.
The struggle for occupational health & safety regulations
In the 1970s the labour movement organized heavily around occupational health and safety issues. A key strategic aim was to enhance to role for direct worker participation. Agitation eventually led to the passage of the Occupational Health and Safety Act (“OHSA”) in 1978. This Act ushered in the “internal responsibility system” of occupational health and safety which still governs workplaces in Ontario to this day. The system is based on three legal rights: the right to know, the right to participate, and the right to refuse.
An important question to ask is why employers conceded on the enactment of the OHSA. Employers didn’t block its implementation because they wouldn’t cede much power to workers in the internal responsibility system:
“We must also consider what impact these changes had on employers and the state. Employers had little to fear from the creation of consultative committees which did not reduce their control over production. Moreover, they stood to gain in at least two ways. First, the creation of a more participatory internal responsibility system was likely to reduce pressure for stronger direct state regulation. Second, the participatory structures created by statute coincided with the introduction of new management techniques designed to address low worker morale and motivation. They could be incorporated into this larger strategy and help realize its benefits.”
The right to refuse was arguably the largest concession made by employers in the introduction of the OHSA since it ceded some power to workers. So why did they accept the right? Because it too wasn’t a major concession:
“The strongest worker right and, therefore, the one most strenuously resisted, was the right to refuse unsafe work. Clearly, employers did not stand to benefit from the right to refuse, but their potential losses were not as great as some imagined because that right was already weakly embedded in the common law and more strongly supported in arbitration decisions under collective bargaining agreements.”
What the OHSA did was codify a right that already existed, albeit buried in obscure common law. Inclusion of the right was therefore not a large concession by employers since workers didn’t get a brand-new right. As discussed more below, decades of experience with the inherent limitations of the right show clearly that employers didn’t lose much power at all.
Employer Resistance to the Right to Refuse Unsafe Work
Even though it wasn’t a major concession, employers fought the enactment of the right from the start. The labour movement had to fight the even get a right that could be used by workers: in the initial iteration of OHSA, Bill 139, a worker could have been disciplined if, after investigating work refusal, the Ministry of Labour inspector concluded there was no safety hazard. No doubt the threat of discipline would have discouraged workers from exercising the right. After further lobbying the threat of discipline was removed and the revised OHSA provided that workers cannot be disciplined for exercising the right (although in practice employers can discipline workers in covert or delayed ways, such as denying work opportunities or promotion).
Since the right was enacted, employers and the capitalist class have consistently complained that it can lead to disruptions of production that would otherwise not be legal in Ontario. For instance, a string of collective work refusals (i.e. where multiple workers refuse unsafe work together) in the 1980s led to refusals being more stringently scrutinized to ensure they were ‘legitimate’.
Conservative governments have also tried to narrow the right to refuse. The Harris-era Ontario Red Tape Commission gave voice to employer concerns that the right was being used in “non-emergency situations” and caused “unnecessary work stoppages”. To dissuade workers from exercising the right, the Commission recommended that sanctions be impose where workers “abuse” the right. Luckily, the recommendation was never enacted.
Inherent Limits of the Right to Refuse Unsafe Work
This pandemic has shown that the right to refuse is not as strong a means of exercising worker power as we may think. Workers are butting up against the same limitations with the right that have existed since it enacted in 1978.
1. Decollectivizes Workers
The core limitation is the right to refuse is an individual right – it is not fundamentally a means for exercising collective power. Workers exercise the right as an individual, not as a group:
“The individual character of the right of refusal is one factor that inhibits direct union involvement. A group of workers who claim that they are all at risk can legally refuse to work. However, their refusal will not be recognized as a refusal by a group but as refusals by individual workers belonging to a group. Their claim cannot also be the basis for work refusal by others, whether they belong to or are outside their group, who are not individually at risk. No other entity, whether a union or another worker, can refuse work for a worker: the worker who believes that he or she is at risk must exercise the right of refusal for himself or herself. In line with this basic characteristic the Labour Relations Act itself does not provide that health and safety concerns can be the basis for collective action.”
Workers may exercise their right collectively in some cases and that is one of the most powerful aspects of the right. However, it is not a group exercise but a series of individual refusals. Occupational health and safety inspectors from the Ministry of Labour atomize and individualize the workers because instead of inspecting a safety concern shared among multiple workers, the inspector adjudicates each individual refusal. The very enforcement of the right decollectivizes worker advocacy. A worker therefore cannot refuse to work in solidarity with a co-worker who has refused to perform unsafe work. They need to have their own personal reason for refusing the unsafe work.
“The individual nature of the right has significant consequences for its effectiveness. A singe refusal can shut down a production line or service – and prevent others from working. A worker who is thinking of refusing may be pressured from colleagues not to. If they do exercise their right, they get singled out through the inspection process and employers can blame them for disrupting other people’s work. All that can discourage use of the the right.”
It has long been known that unionized workers are far more likely to exercise a right to refuse than unionized workers who lack the institutional support to safely exercise rights. The right is only as effective as the power workers already have and the safeguards in place for those who invoke it. For many non-unionized workers, exercising the right is not an option, as the spectre of employer reprisal, such as being fired or denied work opportunities, outweighs the benefits.
Reprisal against workers who invoke the right is common. Approximately 28% of the reprisal complaints filed by workers at the Ontario Labour Relations Board in between 2007 and 2017 were about employers reprising against workers for refusing unsafe work. The Ministry of Labour has also been reluctant to prosecute employers who reprise against their workers. Unionized workers, in contrast, have the institutional support of a union which can protect them against employer retaliation and abuse, such as through grievance systems.
2. Not a means to negotiate fundamental working conditions
The right to refuse is reactionary – it is invoked in response to an immediate hazard(s) that a worker is facing. The right doesn’t empower a group of employees to refuse to perform work for broader concerns such as the location or design of a workplace, what tools and equipment are used, or the kind of materials used. It doesn’t permit refusals for concerns about the basic methods of production. Except in some limited circumstances where a group of workers refuse collectively, the right is fundamentally not a means to negotiate general working conditions. Rather, it is a safeguard to be used in response to extreme circumstances.
3. Reliance on the Ministry of Labour for remedies
Perhaps the main way that employers and the capitalist class retaliate against the right is to remove the remedy, that is, reduce enforcement by the Ministry of Labour. This undercuts the strength of the right.
The labour movement has consistently grieved the Ministry of Labour’s failure since the 1980s to take work refusals seriously and effectively inspect, issue, and enforce orders against employers. Denial of refusals for COVID-related health concerns and the Ford government’s exceedingly narrow definition of what constitutes a hazard are from the same play book the capitalist class has been following for decades.
Collective power wins safety
Workplace health and safety is about power. The OHSA doesn’t grant workers real power over workplaces. It is through collective action that workers really exercise and take power, not individual acts of refusal.
There is no question that the right to refuse unsafe work is an important protection for workers these days. However, its limitations must be acknowledged and we need to think bigger than just focusing and relying on this right if we’re going to secure safe workplaces.
The limitations of the right to refuse have long been known by more militant labour activists. An article in the Union Woman newspaper from 1978, not long after the OHSA was enacted, nailed the hammer on the head: “the right to refuse is only an individual right – collective action can only be taken if each worker individually makes the decision to refuse.” Rather than exercising rights individually, workers were called to act collectively:
“Holding out for protective legislation is not good enough. We need union safety committees that are prepared to see that these measures are enforced. We need an aggressive accident prevention program and obviously the Construction Safety Association and the Workman’s Compensation Board are not providing that. Therefore it is up to us workers: What are we going to do?”
Along those lines, an effective way to exploit the right to refuse can be through group work refusals (i.e. a group of individuals each lodging their own work refusals at the same time). Group refusals can disrupt production and give workers leverage to negotiate with employers. We’ve seen auto and transit workers use the tactic of group refusals during this pandemic to obtain safer working conditions.
We also do need to think beyond the individual right to refuse, which inherently atomizes workers. One option is for the labour movement to renew the demand for collective refusal rights, just as some members of the NDP in the early 1980s did when they sought to win more the radical labour rights of group work refusals and “giving worker health and safety committee members and representatives the right to unilaterally shut down unsafe operations.”
Yet, while gains may be made through better rights, “holding out for protective legislation is not good enough.” Employers and the capitalist class currently have the power to define what counts as a workplace hazard and what is considered a safe workplace. By building and exercising collective power, workers can wrest control over their workplaces and be the ones who define what a safe workplace looks like. That kind of control won’t be won by exercising a right to refuse but through large scale mobilization and action.
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