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below.
By Kevin Munn
By Chris Rolfe
For the West Coast Environmental Law Association
1. the right to a joint worker-management environment committee;
2. the legal right to refuse to pollute;
3. the right to environmental information from the employer; and
4. whistle-blower protection.
Canada has made a start in enacting workers' environmental rights in Ontario, Yukon and the North-West Territories, though no jurisdiction has entrenched the right to a joint environment committee. We urge the federal jurisdiction to be the first to do this, as a result of the CEPA Review.
Some issues over the right to refuse unsafe and unhealthy work, such as the right of worker representatives to shut down operations, and payment of wages and benefits in the event of stoppage, have proved to be controversial and similar controversies will arise over the right to refuse to pollute.
This is sometimes called the right to participate. It reflects and builds upon the right to joint health and safety committees in the workplace which is universal in Canada. Demonstrably, pollution prevention initiatives require an intimate knowledge of production processes. Here, workers are the experts with first-hand knowledge. While committee work is sometimes contentious and adversarial, the intention and much of the practice is cooperative. This will be especially true of pollution prevention programmes in which workers, their unions and management all have an interest in a pollution-free workplace, and in a pollution-free environment outside the workplace.
For instance, most right-to-refuse laws in Canada require that the work hazard be in some way abnormal or unusual (e.g. imminent danger), to justify stopping work. Similarly, where governments have given workers a legal right to refuse to pollute, they have usually qualified that right for fear that it might be abused. Even the progressive Yukon legislation does not go so far as to allow work stoppage over any amount of pollution, however small.
At the same time, general rights to information only mean something if the employer too has access to the relevant environmental information. In this regard, the Canadian Labour Congress has recommended (outside the context of CEPA) a new category of environmental protection.
It is likely that employers will raise the issue of trade secrets in relation to environmental information. As discussed in the context of NPRI there should be no trade secrecy in relation to the identity or environmental effects of substances released into the environment. New Jersey has refused to allow trade secrecy in relation to identity of releases, and this has not adversely affected those New Jersey companies. Even if it is true that revealing the identity of a pollutant would breach trade secrecy, the public interest has to override business confidentiality. Having entered the public domain as substances, information on these substances should also enter the public domain.
At present, most jurisdictions protect the right only partially and indirectly, through grievance arbitration. While some arbitrators have upheld the right to blow the whistle, they have not done so unconditionally. Broadly (and generalization is risky), (i) the whistle-blower must have the best of intentions, e.g. she/he must have the public interest at heart; (ii) she/he must have grounds for believing that the employer has done something wrong, e.g. a gross breach of environmental law; (iii) she/he must give the employer the opportunity to correct the violation; and (iv) she/he must consider the manner and tone of the whistle-blowing. These generalizations come from arbitration jurisprudence and they should be replaced by statute law on whistle-blower protection.
Similarly, when unions have tried to negotiate whistle-blowing in collective bargaining, they have found that employers are granting the "right", but only with the employer's "permission".
Worker rights are specific examples of informational rights, rights to a clean environment and rights to involvement in decision-making that affects the environment. They are, however, examples which are of specific interest to workers. To a large extent the rights called for in this section reflect and build on the existing rights to a clean, safe, healthy and stress-free workplace, which have been entrenched in law universally across Canada. Joint health and safety committees in the workplace are universal, as is the legal right to refuse unsafe and unhealthy work. The right to information necessary to protect workers' health and safety has been vastly expanded through the implementation of the Workplace Hazardous Materials Information System (WHMIS) and Canada's national workplace right-to-know law on chemical hazards.
There are many good reasons for enacting workers' environmental rights. The more participation in workplace environmental programmes that workers have (through joint committees), the more rights they have to refuse to undertake environmentally hostile acts or to blow the whistle on such acts, and the more information they have on workplace environmental matters, the more likely it is that an effective pollution prevention programme will be designed and implemented.
62 C. Rolfe, Ensuring meaningful public and worker involvement in environmental protection under CEPA, Internet address: http://vcn.bc.ca/wcel/otherpub/7454.html, WCEL, 1994.
