Far from home, not from risk

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 workers from the United States, Britain, France, Japan, Romania and other countries were among the deceased. Accounts from survivors revealed the terrorists had specifically targeted foreign workers for kidnapping.

In the wake of this tragedy, it is worth pondering whether Canadian occupational health and safety laws apply to Canadian employers who employ Canadian workers on foreign soil, and what measures employers can take to protect such workers. This is particularly timely in an era of increased globalization and worker mobility.

While there is general presumption against the extraterritorial application of Canadian labour and employment legislation, courts and adjudicators have held this can be rebutted if there is express language in a statute that illustrates an intention to address matters outside of Canada. Though limited, there is some authority that suggest Canadian law can have extraterritorial application.

Cases that have considered the Canada Labour Code (CLC), would be an example. The CLC provides labour, employment, 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 they frequently extend beyond Canadian territorial limits. The CIRB has opined that Parliament could not have intended for the CLC to cease 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 oilrigs and vessels.

In another case, the board considered a union’s request to apply a collective agreement to its employees working in Saudi Arabia and found 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 it had jurisdiction to include non-resident foreign correspondents in a bargaining unit of journalists employed by the CBC.

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

Another example of legislation that can have extraterritorial application is workers’ compensation legislation.

In 2005, the Ontario Workplace 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 in Albania.

The WSIAT found there was “sufficient connection” to Ontario to establish that the worker’s usual place of employment was in Ontario so as to bring him within the purview of the province’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.

To best protect workers — especially in relation to health and safety — Canadian employers would be wise to apply the same due diligence standard to those workers who work outside of Canada as they do to workers in Canada.

Canadian employers may wish to consider the following measures when sending workers abroad, especially to jurisdictions where there are known health and safety risks 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 pressuring workers to accept the work.
• Develop clear policies that govern workers 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/emergency insurance or hiring third parties for medical and security assistance.
• Consider the use of a travel locator/database tracking system.
• Arrange employee travel and have contingency plans in case of emergency.
• Monitor international warnings and proactively communicate changes in risk levels or hazards to workers while they are outside of Canada.
• Provide employees with a list of phone numbers of contacts to call for 24-hour advice and assistance in case of a variety of emergencies.

Kevin MacNeill is a partner at Toronto firm Heenan Blaikie focused in all areas of labour and employment. You may contact him at 416-360-2602 or [email protected]. Christina Hall is an associate at Heenan Blaikie’s labour and employment group. You may contact her at 416-643-6843 or [email protected].