11.3 Internal Responsibility System in Practice

The IRS is built upon the premise that employers and workers are jointly responsible for safety and that, by working together, they can make workplaces safer. After almost 40 years of operation, the IRS has not lived up to its potential. While workplaces are safer than they were 40 years ago, particularly when it comes to the dangers posed by physical hazards, workers continue to have little success in exercising their three safety rights and work-related ill health remains largely ignored.

Right to Know 

The right of workers to know what hazards they are exposed to in the workplace is a foundational one. Without knowing about workplace hazards, workers cannot meaningfully participate in safety activities or know which work they ought to refuse as unsafe. In practice, most workers rely upon their employer for safety information.^[1] This reality has two consequences. First, whether the worker is informed about a hazard depends on the employer’s ability and willingness to provide information. Training has been found to be one of the most effective methods for creating safety awareness and behaviour.^[2] Yet, as we saw in Chapter 8, a recent study found that only 1 in 5 Canadian workers received safety training in their first year on a job.^[3] In practice, then, employers often don’t provide safety information to workers and this employer decision (or, less charitably, this employer strategy) cannot help but hamstring workers’ ability to participate and refuse.

Second, the employer controls what information it gives workers and can use this power to highlight (or downplay) certain hazards and control measures. For example, an employer has an interest in focusing attention on hazards that are within the workers’ control or that can be controlled by worker vigilance (such as physical hazards) because these hazards are relatively cheap to control. Using this same logic, an employer also has an interest in downplaying hazards that require the employer to take action to control (e.g., workload and shift work, chemical hazards) because these controls are relatively expensive or difficult or challenge their authority to manage. While it is often said that knowledge is power, in OHS, the distribution of knowledge appears to mean that knowledge most often increases employers’ power.^[4] While unions can counter the employer monopoly on information, union membership is in a slow decline. Further, unions are virtually absent in growing industries, which also happen to employ large numbers of precarious workers.

Right to Participate

The right to participate gives workers a process for addressing safety issues, usually via a JHSC. While JHSCs can be effective at improving safety outcomes, not every worker has access to a JHSC.^[5] In most jurisdictions, only employers with more than 10 or 20 employees are required to have JHSCs— meaning about a third of workers have no access to JHSCs—and Alberta and the Territories do not require any employer to have JHSCs. Even if an employer voluntarily creates a JHSC, there are no requirements for equal participation by workers, appropriate investigative powers, or even regular meetings. What this means is that workers at smaller employers, which tend to both employ more vulnerable workers and have higher rates of incidents and injuries, have basically no right to participate.

In workplaces with JHSCs, the committees often struggle with employers ignoring recommendations, agendas dominated by minutiae and pro forma processes, lack of safety knowledge among committee members, inadequate resources (both time and money), and, not surprisingly, worker disengagement. Non-functioning JHSCs fundamentally limit the right to participate. As we saw in Chapter 2, there are ways workers can improve the effectiveness of JHSCs. These efforts are most likely to be successful in unionized workplaces where the union can train and empower workers. Yet even with the support of a union, workers’ efforts to increase the effectiveness of JHSCs can face profound limits if the employer resists and the state refuses to regulate.^[6] Even the most effective JHSCs have no ability to compel employers to address unsafe workplaces. Leaving it up to the employer to decide whether and how to address hazards reinforces the greater power of employers in the workplace. Rather than provide workers with a platform from which to assert their rights, JHSCs become a means to channel worker discontent around safety issues into a process that employers can manage and control. Further, some critics of the IRS argue that the creation of a formal structure and location for airing safety grievances delegitimizes other informal forms of worker expression (e.g., on the shop floor, at union meetings) and thus undermines the ability of workers to act outside of the internal responsibility system.^[7]

Many recent employer safety initiatives are designed to bypass the traditional IRS processes—particularly in large workplaces. Safety management systems are programs that construct goals and performance measures related to safety, often with the assistance of an outside consultant. These systems may engage workers at a rhetorical level (e.g., by involving them in the creation of “value” statements), but mostly they further concentrate control over safety in the hands of employers who set and measure safety targets. Some employers also create workplace wellness systems that promote forms of wellness that financially benefit employers (see Box 11.2). In this way, the growing professionalization of safety also undermines workers’ right to participate.

Right to Refuse

The right to refuse at first seems to be the strongest worker safety right. Indeed, the right to refuse represents one of the few times when a worker can legally disobey his or her employer (by refusing to perform dangerous work). In practice, though, refusing unsafe work has turned out to be a weak right. Three factors have undermined the power of the right to refuse. First, most legislation and its interpretation have narrowed the instances when workers can legally refuse. They cannot refuse simply because a hazard exists. There must be some degree of immediacy to the risk of injury, which effectively precludes refusing work on the basis that the work puts the worker at risk of occupational disease. Also, the danger must not be “normal” for the worker’s occupation. These restrictions make refusing unsafe work difficult for many workers.

Second, the rules around the right to refuse only require the employer to investigate the refusal and preclude the employer from punishing the worker for their refusal. No other action is required. Employers are allowed to assign a different worker to perform the same task. Or the employer can make minor changes to reduce the risk just enough that the worker will agree to do the task. Or they can do nothing at all and say everything is fine. If the worker continues to refuse, the resolution process is lengthy and legalistic. Further, pursuing the matter requires the worker to confront their employer, possibly over a period of weeks, in a direct manner that can be intimidating for many and, as Andrea MacPhee-Lay found out, can end in termination.

As a result, workers rarely invoke the right to refuse. One of the few studies examining the frequency of refusals found that only 1% of Ontario workers used their legislative right to refuse.^[13] Workers are more likely to refuse in a unionized setting, where additional protections from employer retaliation are present. In most workplaces, instead of formally refusing unsafe work, workers are more likely to adopt informal methods to avoid dangerous situations, including quietly altering the work process or pace of work, refusing overtime, calling in sick, or requesting a transfer.^[14] Workers’ reluctance to engage in a direct confrontation with their employer over safety matters reflects the third factor undermining the right to refuse: employment is a relationship of power, and workers’ three safety rights do not adequately mitigate employers’ greater power in the workplace such that workers can protect themselves. A recent study found that one third of Ontario workers expected that raising a health and safety concern would have a negative affect their future employment. The percentage was even higher among racialized workers and among workers facing a high degree of precarity.^[15]

This discussion suggests the IRS is not very effective at protecting workers’ safety. This conclusion is consistent with the large number of workplace injuries in Canada each year. Some workers are able to increase the effectiveness of the IRS via unionization, but the most vulnerable workers (such as women, racialized workers, youth and precarious workers—groups whose memberships often overlap) are less unionized and thus receive little (or no) protection from the IRS.