Employee Rights

Highlighted words reveal definitions and supplementary information when selected.

Summary

Every employee in Nova Scotia has the right to a safe and healthy workplace environment. Every worker has three basic rights: the right to know, the right to participate, and the right to refuse unsafe work. Health and safety are the responsibility of every person in the workplace, both for themselves and for all others present. This shared responsibility is known as the Internal Responsibility System (IRS). The Nova Scotia Occupational Health and Safety Act legislates the IRS by stating the rights, duties, and obligations of all persons with a connection to the workplace; namely the employer, employee, Joint Occupational Health and Safety Committee (JOHSC) members or Health and Safety Representative, and other persons such as owners, contractors, suppliers, and regulators.

General Precautions and Duties

Taking every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near the workplace is commonly known as the general duty clause and is a core part of the internal responsibility system. The general duty clause covers any circumstance that could impact the health and safety of persons at or near the workplace. Both the employer [S.N.S. 1996, c.7, s. 13(1)(a)] and the employee [S.N.S. 1996, c.7, s. 17(1)(a)] have a general duty to perform their workplace duties to ensure health and safety is built into the tasks they are completing.

Other required general precautions and duties of the employer include:

• providing and maintaining equipment, machines, materials, or things that are properly equipped with safety devices; [S.N.S. 1996, c.7, s. 13(1)(b)]
• conducting business activities in a way that does not expose employees to health and safety hazards; [S.N.S. 1996, c.7, s. 13(1)(f)]
• consulting and co-operating with the JOHSC or health and safety representative, and also co-operating with anyone who is performing a duty or exercising a power conferred by the Act or regulations; and [S.N.S. 1996, c.7, s. 13(2)(a) and s. 13(2)(b)]
• following the Act and the regulations and making sure their employees do so as well. [S.N.S. 1996, c.7, s. 13(2)(d)]

Other required general precautions and duties of the employee include:

• co-operating with the employer and other employees to protect the health and safety of themselves and others at the workplace; [S.N.S. 1996, c.7, s. 17(1)(b)]
• using or wearing any protective devices, equipment, or clothing required by the employer, the Act or the regulations; [S.N.S. 1996, c.7, s. 17(1)(c)]
• consulting and co-operating with the JOHSC or health and safety representative, and also co-operating with any person who is performing a duty or exercising a power conferred by the Act or regulations; [S.N.S. 1996, c.7, s. 17(1)(d) and s. 17(1)(e)] and,
• following the Act and the regulations. [S.N.S. 1996, c.7, s. 17(1)(f)]

Three Rights

The Occupational Health and Safety Act entitles all employees in Nova Scotia to three basic rights:

• The right to know about health and safety matters.
• The right to participate in decisions that could affect their health and safety.
• The right to refuse work that could affect their health and safety and that of others.

Many of the rights, duties, and obligations of the employer and employee stated in the Act and the regulations directly support these rights:

1. Right to Know

• Employers primarily support this right by providing all information, instruction, training, supervision, and facilities to their employees that are necessary for their health and safety; [S.N.S. 1996, c.7, s. 13(1)(c)] and, by establishing occupational health and safety programs, polices, and procedures as required by both the legislation and the internal company policies. [S.N.S. 1996, c.7, s. 13(2)(e)]
• Employees have the right to know about any health or safety hazards in the workplace that might affect them; as well as how to properly use all required protective devices, equipment, and clothing. Supervisors and foremen must be provided with this knowledge as well. [S.N.S. 1996, c.7, s. 13(1)(d)][S.N.S. 1996, c.7, s. 13(1)e)]
• Employees who are a member of the JOHSC, or a health and safety representative, also have the right to receive from the employer any additional training they need to carry out their duties. [S.N.S. 1996, c.7, s. 13(2)(c)]

Workplace examples that support the right to know include:

• easy access to the Act and regulations, and other posted OHS materials;
• reports of workplace hazards identified during job-task hazard analysis, audits, routine facility inspections, daily pre-use inspections, or special monitoring and sampling;
• results of the Occupational Health and Safety Department of the Government of Nova Scotia OHS Officer workplace inspections and investigations;
• general health and safety orientation training, and job-specific instruction such as Workplace Hazardous Materials Information System (WHMIS) and safety data sheets, forklift operation, fall protection, lockout – tagout, using and caring for personal protective equipment (PPE), and correct task ergonomics;
• training on emergency procedures such as first aid, fire and spill response, evacuation, incident reporting, and investigation;
• mechanisms for reporting and correcting sub-standard working conditions;
• good communication between the employer, the JOHSC or Health and Safety Representative, and employees; and,
• any other OHS programs, policies, and work procedures applicable to the workplace and tasks.

Access to Information

An employer must:

• make specific information available for employees to examine. [S.N.S. 1996, c.7, s. 38(1)(a)]
• make sure specific information remains posted in a prominent and accessible location. [S.N.S. 1996, c.7, s. 38(1)(b)]
• post in a prominent and accessible location any other information specified by the Act or regulations for at least seven days, or longer if required, to give all employees time to read it; or provide it to each employee in writing. [S.N.S. 1996, c.7, s. 38(2)]
• when an order, a compliance notice, or a notice of appeal or decision is made by an officer to the employer, post it and provide a copy to the JOHSC or Health and Safety Representative. [S.N.S. 1996, c.7, s. 39(1)]

An employer must:

• when workplace OHS inspections or OHS monitoring (including tests, samples, and measurements) are performed in the workplace, notify the JOHSC or Health and Safety Representative about the reports, and provide them to the JOHSC or Health and Safety Representative, or employee, when requested. [S.N.S. 1996, c.7, s. 35(1) and s. 35(2)]
• when a monitoring observer is required and selected, give reasonable notice about when it will start. [S.N.S. 1996, c.7, s. 42(3)(a)]
• provide and explain the monitoring procedure to the observer, if requested. [S.N.S. 1996, c.7, s. 42(4)]
• notify the observer if the monitoring equipment has malfunctioned, or the process has been altered. [S.N.S. 1996, c.7, s. 42(1)(a)]
• when monitoring will be performed by an owner, constructor, or contractor then all of the employer’s requirements apply, and they must also provide reasonable notice to all employees at the workplace about when it will be done. [S.N.S. 1996, c.7, s. 42(5)(a) and 42(5)(b)]

Other OHS Information

An employer must:

• respond in writing within twenty-one days to a written request by the JOHSC or Health and Safety Representative, or by an employee if there is no representation, for any other OHS information, with either the requested information, with reasons for not providing it, or with a reasonable explanation for the delay with a timeline for response. The delay may be reported to an officer if the JOHSC or Health and Safety Representative, or employee, are not satisfied that it is reasonable. [S.N.S. 1996, c.7, s. 35(3) and s. 35(4)]
• where the Workers Compensation Act applies to the workplace, can receive information (annual summary of data relating to the employer) when requested in writing, by the employer, an employee, JOHSC or Health and Safety Representative. [S.N.S. 1996, c.7, s. 41]

2. Right to Participate

Employee participation in their workplace OHS program is an important part of the IRS. The Act and regulations ensure that employees have the right to participate and provide input on matters that affect their own health and safety.

Representation and Reporting

An employee:

• can participate directly as a JOHSC member or Health and Safety Representative, or by making health and safety suggestions to them.
• when they know of anything that is or may be dangerous to their, or others’ health or safety, must: [S.N.S. 1996, c.7, s. 17(2)]
  • Immediately report it to a supervisor (the employer);
  • If the employer does not correct the issue to the employee's satisfaction, report it to the JOHSC or Health and Safety Representative;

  If the issue is still not resolved, report it to the Occupational Health and Safety Department of the Government of Nova Scotia by calling 902-424-5400 or toll-free: 1-800-9LABOUR (1-800-952-2687).

  An employee can be selected to observe when workplace OHS monitoring (including tests, samples, and measurements) is performed, unless the monitoring takes place in certain circumstances. Time spent in this activity is deemed to be regular paid work time. [S.N.S. 1996, c.7, s. 42(1)] [S.N.S. 1996, c.7, s. 42(5)(b)] The selected employee must be granted access to the workplace for the purpose of observation. [S.N.S. 1996, c.7, s. 42(3)(b)] [S.N.S. 1996, c.7, s. 42(5)(b)]

  3. Right to Refuse

  When the first two rights have not resolved the employee’s safety concern to their satisfaction, the worker may be able to exercise their right to refuse (in certain circumstances). Exercising this right is serious and should not be done lightly or as a routine method of solving workplace problems. However, employees should not be afraid to exercise their right to refuse an unsafe act when they have reasonable grounds for believing that the act is likely to endanger the employee's health or safety or the health or safety of any other person until certain resolution conditions are met. [S.N.S. 1996, c.7, s. 43(1)]

  • When an employee exercises their right to refuse, they must: [S.N.S. 1996, c.7, s. 43(2)]
    • immediately report it to a supervisor (the employer);
    • if the employer does not remedy the matter to their satisfaction, report it to the JOHSC or health and safety representative;
    • if the issue is still not remedied; report it to the Occupational Health and Safety Division of the Government of Nova Scotia.

    Refusal – Work Assignment

    • The employer may reassign the employee to other work and the employee must accept the reassignment until they are able to return to work. A reassignment of work is not discriminatory action. [S.N.S. 1996, c.7, s. 43(5)][S.N.S. 1996, c.7, s. 43(8)]
    • The employer may not assign another employee to do that work until the resolution conditions are met, unless the employee has been advised of the following: [S.N.S. 1996, c.7, s. 44]
      • the work was refused by another employee
      • the reason for the work refusal; and,
      • their right to refuse unsafe or unhealthy work.
      • The employer will continue to pay the employee the same wages or salary and grant the employee the same benefits as would have been received had the employee continued to work while:
        • they accompany an officer, or the JOHSC or Health and Safety Representative on physical inspection of the workplace; [S.N.S. 1996, c.7, s. 43(4)]
        • they are reassigned to other work; [S.N.S. 1996, c.7, s. 43(6)] or,
        • they are not reassigned to other work. [S.N.S. 1996, c.7, s. 43(7)]

        Discriminatory Action

        Employees have protections from discriminatory action under the Act and regulations.

        • The employer or union may not take or threaten to take discriminatory action against an employee for any of the actions listed below: [S.N.S. 1996, c.7, s. 45(2)]
          • acted in compliance with the Act or the regulations;
          • acted on an order or direction made under the Act or the regulations;
          • sought the enforcement of the Act or the regulations;
          • participated in or associated with a committee, sought the establishment of a committee, or performed functions as a committee member;
          • associated with a Health and Safety Representative, sought selection of a Health and Safety Representative, or performed functions as a Health and Safety Representative;
          • exercised their right to refuse unsafe or unhealthy work;
          • sought access to information to which the employee is entitled by this Act or the regulations;
          • has been assigned the role of OHS monitoring observer;
          • has testified or is about to testify in any proceeding or inquiry pursuant to this Act or the regulations; or
          • has given information to the JOHSC, a Health and Safety Representative, an officer or other person concerned with the administration of this Act or the regulations with respect to the health and safety of employees at the workplace unless the employer or union, establishes that such action is solely motivated by legitimate business reasons. [S.N.S. 1996, c.7, s. 45(2)]

          An employee:

          • has the right to make a complaint if an employer has failed to pay wages, salary, pay or a required benefit entitlement; or, an employer or a union has taken, or threatened to take, discriminatory action contrary to the Act and regulations. [S.N.S. 1996, c.7, s. 46(1)(a)][S.N.S. 1996, c.7, s. 46(1)(b)]
            • where the employee is not subject to a collective agreement under which they are entitled to file a grievance, can make a complaint in writing to an officer within thirty days. [S.N.S. 1996, c.7, s. 46(1)(c)][S.N.S. 1996, c.7, s. 46(1)(d)]
            • where the employee is subject to a collective agreement under which they are entitled to file a grievance, can have the complaint dealt with by final and binding arbitration under the collective agreement; or make a complaint in writing to an officer within thirty days, if an arbitrator has not seized jurisdiction over the matter under the collective agreement. [S.N.S. 1996, c.7, s. 46(1)(d)]

            An officer:

            • will investigate the complaint and either issue an order if the Act or regulations have been contravened; or, notify the complainant that there are no grounds upon which to issue an order. [S.N.S. 1996, c.7, s. 46(2)]
              • an order regarding failure to pay wages, salary, pay or a required benefit entitlement will require remedial actions from the employer or the union by a specified date. [S.N.S. 1996, c.7, s. 46(3)]
              • an order regarding discriminatory action will require remedial actions from the employer or the union by a specified date. [S.N.S. 1996, c.7, s. 46(4)]
              • where an order or decision of an officer is not appealed, the decision of the officer is final and binding. [S.N.S. 1996, c.7, s. 46(5)]

              Legislation

              OCCUPATIONAL HEALTH AND SAFETY ACT

              Section 13 DUTIES AND PRECAUTIONS

              13. (1) Every employer shall take every precaution that is reasonable in the circumstances to

              (a) ensure the health and safety of persons at or near the workplace;

              (b) provide and maintain equipment, machines, materials or things that are properly equipped with safety devices;

              (c) provide such information, instruction, training, supervision and facilities as are necessary to the health or safety of the employees;

              (d) ensure that the employees, and particularly the supervisors and foremen, are made familiar with any health or safety hazards that may be met by them at the workplace;

              (e) ensure that the employees are made familiar with the proper use of all devices, equipment and clothing required for their protection; and

              (f) conduct the employer's undertaking so that employees are not exposed to health or safety hazards as a result of the undertaking.

              (2) Every employer shall

              (a) consult and co-operate with the joint occupational health and safety committee, where such a committee has been established at the workplace, or the health and safety representative, where one has been selected at the workplace;

              (b) co-operate with any person performing a duty imposed or exercising a power conferred by this Act or the regulations;

              (c) provide such additional training of committee members or the representative as may be prescribed by the regulations;

              (d) comply with this Act and the regulations and ensure that employees at the workplace comply with this Act and the regulations; and

              (e) where an occupational health and safety policy or occupational health and safety program is required pursuant to this Act or the regulations, establish the policy or program.

              (3) The employer at a subsea coal mine shall provide such additional resources or information for the committee as may be prescribed by the regulations.

              [N.S. 2007, c. 14, s. 7; 2010, c. 66, s. 5]

              Section 17

              17. (1) Every employee, while at work, shall

              (a) take every reasonable precaution in the circumstances to protect the employee's own health and safety and that of other persons at or near the workplace;

              (b) co-operate with the employer and with the employee's fellow employees to protect the employee's own health and safety and that of other persons at or near the workplace;

              (c) take every reasonable precaution in the circumstances to ensure that protective devices, equipment or clothing required by the employer, this Act or the regulations are used or worn;

              (d) consult and co-operate with the joint occupational health and safety committee, where such a committee has been established at the workplace, or the health and safety representative, where one has been selected at the workplace;

              (e) co-operate with any person performing a duty or exercising a power conferred by this Act or the regulations; and

              (f) comply with this Act and the regulations.

              (2) Where an employee believes that any condition, device, equipment, machine, material or thing or any aspect of the workplace is or may be dangerous to the employee's health or safety or that of any other person at the workplace, the employee shall

              (a) immediately report it to a supervisor;

              (b) where the matter is not remedied to the employee's satisfaction, report it to the committee or the representative, if any; and

              (c) where the matter is not remedied to the employee's satisfaction after the employee reports in accordance with clauses (a) and (b), report it to the Division.

              Section 35

              35. (1) An employer shall notify the committee or representative, if any, of the existence of reports of

              (a) workplace occupational health or safety inspections; and

              (b) workplace occupational health or safety monitoring or tests,

              undertaken at the workplace by, or at the request of, an officer or the employer and, on request, the employer shall make the reports available to the committee or the representative.

              (2) An employer shall make available to an employee at a workplace, on request, reports of

              (a) workplace occupational health or safety inspections; and

              (b) workplace occupational health or safety monitoring or tests,

              undertaken at the workplace by, or at the request of, an officer or the employer.

              (3) Within twenty-one days of receiving a request in writing from the committee, representative or, where there is no committee or representative, an employee at a workplace for any information of a health or safety nature other than that specified in subsection (1), the employer shall respond in writing and the response shall

              (a) provide the requested information; or

              (b) give reasons for not providing the information, in whole or in part,

              and where it is not reasonably possible to provide a response before the expiry of the twenty-one day period, provide within that time a reasonable explanation for the delay, indicate to the committee, representative or employee when the response will be forthcoming and provide the response as soon as it is available.

              (4) Where the committee, representative or employee makes a request pursuant to subsection (3) and is not satisfied that the explanation provided for a delay in responding is reasonable in the circumstances, the chair or co-chairs of the committee, the representative or the employee, as the case may be, shall promptly report this fact to an officer.

              Section 38

              38. (1) Every employer shall

              (a) make available for examination at the workplace

              (i) a copy of the regulations that relate to the workplace, and

              (ii) information and reports that an officer considers advisable to enable employees to become acquainted with their rights and responsibilities pursuant to this Act and the regulations;

              (b) post in a prominent place or places in the workplace capable of being easily accessed by the employees

              (i) a current copy of this Act,

              (ii) a code of practice required pursuant to this Act or the regulations,

              (iii) a current telephone number for reporting occupational health or safety concerns to the Division, and

              (iv) where the employer is required pursuant to this Act or the regulations to have an occupational health and safety policy, the policy,

              and ensure they remain posted.

              (2) Where anything other than the information listed in subsection (1) is required to be posted pursuant to this Act or the regulations, the person who has the duty to post shall

              (a) post a legible copy of it in a prominent place or places in the workplace capable of being easily accessed by the employees; and

              (b) ensure that it remains posted for at least seven days, or longer if additional time is necessary to enable employees at the workplace to inform themselves of the content, unless this Act or the regulations otherwise specify,

              or in lieu of complying with clauses (a) and (b), shall provide the information to each employee, in writing.

              Section 39

              (a) an officer makes an order pursuant to this Act or the regulations against an employer;

              (b) a compliance notice is required of an employer pursuant to subsection 56(1); or

              (c) an appeal is initiated or disposed of pursuant to Section 69,

              the employer shall, subject to subsections (2) and (3), immediately

              (d) post the order, compliance notice, notice of appeal or decision; and

              (e) deliver a copy of the order, compliance notice, notice of appeal or decision to the committee or representative, if any.

              (2) An officer may authorize in writing an officer's order to be edited to protect a trade secret, secret manufacturing process or confidential personal information, the disclosure of which is limited pursuant to this Act.

              (3) Where an order is edited pursuant to subsection (2), the authorization of the officer shall be affixed to the order and it shall be posted in accordance with this Act in substitution for the unedited order.

              [S.N.S. 2013, c. 41, s. 2]

              Section 41

              41. Where the Workers' Compensation Act applies to a workplace,

              (b) a representative;

              (c) an employee; or

              at the workplace who so requests in writing shall receive an annual summary of data relating to the employer.

              Section 42

              42. (1) Every employer shall permit an employee selected pursuant to subsection (2) to observe workplace occupational health or safety monitoring and the taking of samples ", tests or measurements where a significant part of the rationale is based on either health or safety of employees at the workplace, unless the monitoring or taking of samples, tests or measurements takes place

              (a) continuously or on a regular and frequent basis, except to observe the initial setup of the workplace occupational health or safety monitoring process and to be informed and observe the monitoring where there has been a malfunction of the monitor or alteration in the process;

              (aa) in a situation that would violate an employee's personal privacy;

              (b) in a location that is remote and is part of the regular task of a person employed at the location; or

              (c) during an emergency situation,

              and time spent by the employee in such activities is deemed to be work time for which the employee shall be paid by the employer at the applicable rate.

              (2) Where there is

              (a) a committee or representative at a workplace, the employee who observes workplace occupational health or safety monitoring and the taking of samples or measurements shall be selected by the committee or representative, as the case may be; or

              (b) no committee or representative at a workplace, the employee who observes workplace occupational health or safety monitoring and the taking of samples or measurements shall be selected by the employees.

              (3) Every employer shall provide

              (a) reasonable notice to an observer of the commencement of the occupational health or safety monitoring and of the taking of samples or measurements undertaken pursuant to subsection (1); and

              (b) access to a workplace for the purpose of the observation.

              (4) Where an observer requests, the procedure for occupational health or safety monitoring and the taking of samples or measurements shall be identified and explained to the observer.

              (5) Where an owner, constructor or contractor performs occupational health or safety monitoring or takes samples or measurements that relate to the health or safety of employees at the workplace,

              (a) the owner, constructor or contractor shall provide reasonable notice to all employers at the workplace of the commencement of the occupational health or safety monitoring and of the taking of samples or measurements; and

              (b) the requirements of subsections (1) to (4) apply.

              (6) Where the monitoring, samples or measurements referred to in subsection (1) are conducted by, or at the request of, an officer, the officer may undertake the monitoring, samples or measurements whether or not notice has been given pursuant to subsection (3) or (5).

              [S.N.S. 2010, c. 66, s. 10]

              Section 43

              43. (1) Any employee may refuse to do any act at the employee's place of employment where the employee has reasonable grounds for believing that the act is likely to endanger the employee's health or safety or the health or safety of any other person until

              (a) the employer has taken remedial action to the satisfaction of the employee;

              (b) the committee, if any, has investigated the matter and unanimously advised the employee to return to work; or

              (c) an officer has investigated the matter and has advised the employee to return to work.

              (2) Where an employee exercises the employee's right to refuse to work pursuant to subsection (1), the employee shall

              (a) immediately report it to a supervisor;

              (b) where the matter is not remedied to the employee's satisfaction, report it to the committee or the representative, if any; and

              (c) where the matter is not remedied to the employee's satisfaction after the employee has reported pursuant to clauses (a) and (b), report it to the Division.

              (3) At the option of the employee, the employee who refuses to do any act pursuant to subsection (1) may accompany an officer or the committee or representative, if any, on a physical inspection of the workplace, or part thereof, being carried out for the purpose of ensuring others understand the reasons for the refusal.

              (4) Notwithstanding subsection 50(8), an employee who accompanies an officer, the committee or a representative, as provided in subsection (3), shall be compensated in accordance with subsection (7), but the compensation shall not exceed that which would otherwise have been payable for the employee's regular or scheduled working hours.

              (5) Subject to any applicable collective agreement, and subsection (3), where an employee refuses to do work pursuant to subsection (1), the employer may reassign the employee to other work and the employee shall accept the reassignment until the employee is able to return to work pursuant to subsection (1).

              (6) Where an employee is reassigned to other work pursuant to subsection (5), the employer shall pay the employee the same wages or salary and grant the employee the same benefits as would have been received had the employee continued in the employee's normal work.

              (7) Where an employee has refused to work pursuant to subsection (1) and has not been reassigned to other work pursuant to subsection (5), the employer shall, until clause (1)(a), (b) or (c) is met, pay the employee the same wages or salary and grant the employee the same benefits as would have been received had the employee continued to work.

              (8) A reassignment of work pursuant to subsection (5) is not discriminatory action pursuant to Section 45.

              (9) An employee may not, pursuant to this Section, refuse to use or operate a machine or thing or to work in a place where

              (a) the refusal puts the life, health or safety of another person directly in danger; or

              (b) the danger referred to in subsection (1) is inherent in the work of the employee.

              Section 44

              44. Where an employee exercises the employee's right to refuse to work pursuant to subsection 43(1), no employee shall be assigned to do that work until the matter has been dealt with under that subsection, unless the employee to be so assigned has been advised of

              (a) the refusal by another employee;

              (b) the reason for the refusal; and

              (c) the employee's rights pursuant to Section 43.

              Section 45

              45. (1) In this Section and in Section 46, "discriminatory action" means an action that adversely affects an employee with respect to terms or conditions of employment or any opportunity for employment or promotion and includes dismissal, layoff, suspension, demotion, transfer of job or location, change in hours of work, coercion, intimidation, imposition of any discipline, reprimand or other penalty including reduction in wages, salary or other benefits, or the discontinuation or elimination of the job of the employee.

              (2) No employer or union shall take, or threaten to take, discriminatory action against an employee because the employee has acted in compliance with this Act or the regulations or an order or direction made thereunder or has sought the enforcement of this Act or the regulations or, without limiting the generality of the foregoing, because

              (a) of the participation of the employee in, or association with, a committee or the employee has sought the establishment of a committee or performed functions as a committee member;

              (b) of the association of the employee with a representative or the employee has sought the selection of a representative or performed functions as a representative;

              (c) the employee has refused to work pursuant to subsection 43(1);

              (d) the employee has sought access to information to which the employee is entitled by this Act or the regulations, or has been assigned the role of observer pursuant to Section 42;

              (e) the employee has testified or is about to testify in any proceeding or inquiry pursuant to this Act or the regulations; or

              (f) the employee has given information to the committee, a representative, an officer or other person concerned with the administration of this Act or the regulations with respect to the health and safety of employees at the workplace,

              unless the employer or union, as the case may be, establishes that such action is solely motivated by legitimate business reasons.

              (3) On an inquiry into a complaint pursuant to Section 46 alleging that there has been a failure by an employer or a union to comply with subsection (2), the burden of proving that there has been no such failure is upon the employer or the union, as the case may be.

              Section 46

              46. (1) An employee who complains that

              (a) an employer has failed to pay wages, salary, pay or a benefit entitlement required pursuant to

              (i) subsection 30(6), 33(5), 42(1), 43(4), 43(6), 43(7) or 50(8), or

              (ii) the regulations; or

              (b) an employer or a union has taken, or threatened to take, discriminatory action contrary to subsection 45(2),

              (c) where the employee is not subject to a collective agreement under which the employee is entitled to file a grievance, within thirty days, make a complaint in writing to an officer; or

              (d) where the employee is subject to a collective agreement under which the employee is entitled to file a grievance,

              (i) have the complaint dealt with by final and binding arbitration under the collective agreement, or

              (ii) within thirty days, make a complaint in writing to an officer, if an arbitrator has not seized jurisdiction over the matter under the collective agreement, in which case the matter shall be dealt with by the arbitrator under the collective agreement.

              (2) Where an officer receives a complaint pursuant to subsection (1), the officer shall investigate the complaint and

              (a) issue an order specifying the provision of this Act or the regulations that has been contravened; or

              (b) determine that there are no grounds upon which to issue an order, and so notify the complainant.

              (3) Where the officer determines that an employer has failed to pay wages, salary, pay or a benefit entitlement required by a provision referred to in clause (1)(a), the officer's order issued pursuant to clause (2)(a) shall require, by a specified date,

              (a) the employer to pay the wages, salary, pay or other benefits required by the provision referred to in clause (1)(a); or

              (b) the employer or the union to do the things that, in the opinion of the officer, are necessary to secure compliance with this Act and the regulations.

              (4) Where the officer determines that discriminatory action has been taken or threatened against an employee contrary to subsection 45(2), the officer's order issued pursuant to clause (2)(a) shall require, by a specified date,

              (a) the employer to reinstate the employee pursuant to the same terms and conditions under which the employee was formerly employed;

              (b) the employer to pay any wages, salary, pay or other benefits that the employee would have earned but for the discriminatory action;

              (c) that any reprimand or other references to the matter in the employer's records on the employee be removed;

              (d) the reinstatement of the employee to the union and the payment by the union to the employee of any wages, salary, pay or other benefits that the employee would have earned but for the discriminatory action; or

              (e) the employer or the union to do the things that, in the opinion of the officer, are necessary to secure compliance with this Act and the regulations.

              (5) Where an order or decision of an officer made pursuant to clause (2)(a) is not appealed, the decision of the officer is final and binding.

              [S.N.S. 2009. c. 24, s. 1]