Commentary: Far from home, but not from risk: OHS laws and Canadian workers abroad

In January, Islamic terrorists stormed a natural gas plant staffed by hundreds of Algerian workers and a number of
foreign workers. The Algerian military intervened, bringing an end to the crisis, but in its aftermath workers from the U.S., Britain, France, Japan, Romania and other countries were counted among the dead. Accounts from survivors revealed that the terrorists had targeted foreign workers for kidnapping.

In the aftermath of this tragedy it is worth pondering whether Canadian Occupational Health and Safety (OHS) laws apply to Canadian employers who employ Canadian citizens outside of Canada, and what measures employers can take to protect such employees. These questions are particularly timely in an era of increased globalization and mobility of workers.

To best understand the legal context, it is important to note that there is a general presumption against the extraterritorial appli­cation of Canadian labour and employment legislation. That said, courts and adjudicators have held that this presumption can be rebutted if there is express language in a statute that illustrates an intention to address matters outside of Canada. While it is limited, there is some authority to suggest that Canadian legislation can have extraterritorial application.

The first such example involves cases that have considered the Canada Labour Code (CLC). The CLC sets out the labour, employment and health and safety laws that govern federally regulated employers, such as those who are in the business of shipping, air transportation, banking, railways or other transportation extending beyond the limits of a province.

Decisions of the Canada Industrial Relations Board (CIRB) have noted that a common characteristic of these activities is that they frequently extend beyond Canadian terri­torial limits. As a result, the CIRB has opined that Parliament could not have intended that the CLC’s operation ceases at Canada’s territorial limits. In one case, the CIRB employed this rationale to permit a trade union to have access to employees working on the employer’s offshore oil rigs and vessels. In a another case, the board considered a union’s request that a collective agreement apply to its employees working in Saudi Arabia and found that it had juris­diction, in appropriate cases, to certify a bargaining unit that included employees performing work outside of Canada. In a third case, the CIRB confirmed that it had juris­diction to include non-resident foreign correspondents in a bargaining unit of journalists employed by the Canadian Broad­casting Corporation.

While none of these cases directly con­sidered the CLC’s OHS provisions, it is conceivable that these could also have
extraterritorial application in the right circumstances.

A second example of legislation that can have extraterritorial application is workers’ compensation legislation, which exists in every Canadian province. On occasion, adjudicators interpreting this legislation have had to consider its application to injuries that have been sustained outside of Canada. For example, in 2005, the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) upheld a worker’s entitlement to benefits for workplace injuries he had sustained in the course of his employment as a truck driver for a Canadian aid organization while working in Albania. In this case, the WSIAT found there was “sufficient connection” to Ontario in order to establish that the worker’s usual place of employment was in Ontario so as to bring him within the purview of Ontario’s workers’ compensation regime. The WSIAT relied on a number of factors in coming to this decision, including that the worker was hired in Ottawa, attended training in Ottawa at the beginning and end of his mission, and the locus of control while he was overseas was jointly shared by the Canadian organization in Ontario and an international organization in Geneva.

The examples set out above are not meant to be exhaustive, but rather are intended to illustrate that when employers send their workers outside of Canada, their legal obligations do not necessarily stop at the Canadian border. As a result, in order to best protect workers — in particular, in relation to health and safety — Canadian employers would be wise to apply the same due diligence standard to those workers who will be working outside of Canada as they do to workers in Canada.

Subject to the proviso that due diligence will always depend on the particular circumstances, the following is a list of measures that Cana­dian employers may wish to consider taking when sending workers abroad — particularly when those workers may be sent to jurisdictions where there are known health and safety risks that arise from civil unrest, violence, high crime rates, exposure to illness or other sources:

• Carry out a proper risk assessment of the proposed work outside of Canada.

• Be honest and upfront with workers about the potential risks and hazards of the assignment and avoid putting pressure on workers to accept the work.

• Develop clear policies that govern employees who are working abroad.

• Develop and maintain a company crisis management plan.

• Train workers on political, security and travel risks, local laws of importance and emergency procedures.

• Consider specialized global travel, medical or emergency insurance and/or hiring third parties for medical and security assistance.

• Consider using a travel locator or database tracking system.

• Arrange for employee travel and have contingency plans in place in case of emergency.

• Monitor international warnings and proactively communicate changes in risk or hazards to workers while they are outside of Canada (i.e., see the Canadian government’s travel advice and advisories at http://travel.gc.ca/travelling/advisories).

• Provide employees with a list of phone numbers of contacts to call for 24-hour advice and assistance on a variety of emergencies.

— Kevin MacNeill is a partner at Heenan Blaikie LLP, a national law firm whose labour law department comprises more than 120 lawyers. A member of the bars of Ontario and Quebec, and an experienced litigator, Kevin represents employers in all areas of workplace law with an emphasis on OHS, workplace safety and insurance law, human rights and accommodation issues. He is the author of The Duty to Accommodate in Employment, the leading text on the subject. He may be reached at (416) 360-2602 or kmacneill@heenan.ca. Follow Kevin on Twitter @kdmacneill.

Christina Hall is an associate at Heenan Blaikie LLP who practices in all areas of labour and employment law with a focus on employment litigation, human rights matters and occupational health and safety defence work. She is a co-author
of the book, HR Manager’s Guide to Background Checks and Pre-Employment Testing and is adjunct professor at the University of Western Ontario. Christina may be reached at (416) 643-6843 or chall@heenan.ca .