For a greater effectiveness of the law and social justice in Quebec, Mélanie Dufour-Poirier, Ph. D., School of Industrial Relations, University of Montreal and Me Jean-Paul Dautel, Ph. D., Department of Industrial Relations, University of Quebec in Outaouais, Canada, present the case for mobilizing intelligence for preventing mental health injuries in the workplace
Filling the normative gap in terms of prevention through mobilizing and promoting the intelligence of workers in the construction of their health in the workplace.
The approach presented here relies on the intelligence of workers to individually and collectively create relevant practices in respect to prevention and the construction of their occupational health. Such possibilities imply the need to listen to them, make them feel they can speak freely, and enable them to give their pain a name in various forums for discussing work-related issues.
Such a shift in paradigm—for that is certainly what is at issue here—strikes a blow at the positivist approach traditionally enshrined in Quebec labour law, according to which the latter is created and imposed in a top-down manner on workers, independently of their presence and their ability to deal with organizational constraints when promoting effective (individual and collective) actions and engagement in terms of prevention and the construction of their occupational health. Under that approach, anything but pluralistic in the normativities at play in the field of occupational health and safety (OHS), workers cannot be considered fully qualified to instigate regulatory initiatives peripheral to the law and specifically OHS-focussed participatory bodies.
We argue against such a restrictive and misguided approach to prevention, for two reasons. Firstly, standards of prevention can come from workers themselves: in our view, they would benefit from being considered and recognized as creators of health standards in workplaces. We believe workers are in fact naturally qualified to create those kinds of standards (both official and unofficial), not only in response to the precautionary and reporting behaviours legally required of them.
Secondly, and further to the above, revamping the effectiveness of OHS law involves remobilizing workers’ industrial citizenship and enhancing their individual and collective potential for empowerment. For workers, being active citizens entails a triple power, namely: 1) that of exercising their social rights in the workplace, with the aim of preserving their dignity and wellbeing; 2) that of conducting their work in a free and independent manner, which implies the presence of a certain degree of autonomy and flexibility in the performance of their work; and 3) that of feeling heard and being able to take part at every level of the decision-making processes affecting work organization, thereby contributing to the operationalization of prevention on the ground in the workplace. Such a direct and integrated approach to prevention requires the presence of a social environment that empowers and values the free, active and voluntary participation of workers in the processes of consultation and group discussions that fuel it.
These considerations underscore the importance of enlisting workers’ intelligence through their experiential knowledge (be it conscious or tacit) in discussion forums dealing with their lived experience of work to co-construct, in collaboration with them, preventive measures attuned to the expectations of the particular environment. Beyond our own work, that thinking is in line with that of Dejours, Chaignot Delage and Dodier, as well as of Cau-Bareille, Lhuillier and Viviers, all of whom recognize, as do we, the ability of workers to regulate, both formally and informally, the risks inherent in their jobs. They also acknowledge workers’ power to share and give effect to official and unofficial rules for collective implementation, development of occupational know-how and the reorganization of work (and indirectly of the environment in which it takes place), in order to reduce the gaps between prescribed and real work, and thus better control the potential or perceived impacts on their health and safety.
By enlisting the contribution of all workplace actors—employers, unions, OHS bodies and workers—in the co-construction of substantial preventive measures responding to their daily challenges, our approach counters actions (instituted and reinforced by the law, among other things, as we shall see) that do not take into consideration workers’ capacities for adaptation and safety initiatives in their actual experience of work and the operationalization of OHS.
The seriousness of the current mental health situation, coupled with the shortfall in the effectiveness of Quebec OHS-related law, nonetheless demand moving beyond the mere involvement and leadership of employers, as well as the obligation of individuals to highlight and even report occupational hazards, which is dominated by the relationship of subordination arising from the employment contract itself.
The critical gap in the effectiveness of Quebec law in terms of preventing mental health injuries in the workplace
The evolution of the legal framework in Quebec for preventing mental health injuries in the workplace has been slow and piecemeal. The Act respecting occupational health and safety (AOHS), enacted in 1979, marked a major advance in terms of primary prevention by emphasizing the elimination of dangers at the source. However, that reform remained focussed on physical wellbeing, implicitly excluding mental health, despite the initial references to the latter in the work done in 1978 in preparation for the AOHS. Its omission was the result of a narrow interpretation of the concept of health on the part of the Quebec administrative authorities. Until 2000, the prevention of mental health injuries was essentially absent from public policies, despite the evolving recognition of psychological harassment through the Act respecting labour standards in 2004 and of work-related psychological injuries under the Act respecting industrial accidents and occupational diseases. This remedial approach, focussed on compensation and rehabilitation, clearly illustrates the limits of the system in place in Quebec, where the prevention of psychosocial risks (PSR) has long been sidelined.
In 2000, a development in case law broadened the scope of the AOHS by asserting that dangers to mental health justified workers in exercising their right of refusing unsafe work. That decision also introduced the requirement that work be organized in such a way as to not adversely affect workers’ mental health. Nevertheless, that advance has not been fully integrated into the prevention mechanisms in place in Quebec. Overall, actions to prevent mental health injuries have limited themselves to more of a compensatory and remedial, rather than preventive, approach unrelated to the general obligation under AOHS to assess the organization of work and make it safe.
Given that context, the 2021 reform resulting in the Act to modernize the occupational health and safety regime constituted a major advance, or at least seeded a real hope, in getting to the heart of work and working life: it effectively established an explicit requirement for employers to protect workers’ psychological wellbeing. Employers were therefore responsible for identifying, analysing, rectifying and preventing PSR by conducting in advance an assessment of the ways of organizing and the design of work; this was accompanied by the provision of a greater role for health and safety committees and health and safety representatives. Those committees were mandated to take part in the analysis of the work activity, as well as understand, communicate, discuss and resolve the problems experienced by workers. The representatives would receive training to contribute to a collective prevention quite unlike a reactive, individualized management of issues that, given their recurrent nature and considerable organizational impact, are systemic. Workers, in addition to their obligation to safeguard their own and others’ health, would be an integral part of the collective deliberations and play an essential role in the regulation and prevention of occupational risks in Quebec. To maximize its transformative impact, the reform would ultimately benefit from democratizing the holding of discussions about work and the ways in which it is organized, and from no longer treating those subjects as the sole preserve of employers: in actual fact, the very effectiveness, legitimacy, relevance and acceptability of the right to OHS in Quebec depend on the co-construction of mental health injury prevention being implemented on the ground.
Revamping industrial citizenship through the co-construction of prevention
The ways in which work is organized have undergone a profound transformation in the past few decades. This can be seen in individual performance reviews—in which performance is reduced to a reifying employability, with its underlying burden of accountability for workers; human desert, in which strategic conviviality substitutes for collective solidarity; work intensification and work overloads; endless cuts in available resources; standardization of processes, limiting the expression of autonomy and creativity in the workplace as well as destroying the reappropriation of a subjective relationship with work and dignity; blurring of the boundaries between work and private life; the problematic linkage of working and non-working hours; the increase and depletion of the intangible resources made use of in the same context (e.g., workers’ skills, confidence and health), and so on.
Furthermore, those developments are taking place against a backdrop of heightened surveillance, pervasive competition between individuals and the disintegration of co-operation in the workplace, thereby discrediting the principle of prevention that posits adapting work to the individual, their right to take part in shaping the ways in which work is organized, and in collectively deliberating on them.
On the one hand, in response to this situation, all public and private actors, as part of their obligation to ensure safe and secure environments (in accordance with the fundamental International Labour Organization principle) are called upon to strengthen the functions and effectiveness of OHS law to resist its deviation and counteract the deleterious effects of the developments mentioned above. In every society, recognizing the impact of work and the ways in which it is organized on human wellbeing and dignity is imperative for social justice and industrial democracy. In turn, by strengthening the general obligation to protect health—at the very core of inalienable workplace rights—a new conception of OHS law could emerge, incorporating workers as subjects and active citizens in respect to their health and future, and fostering a framework in which the common good would take precedence over the dictates of profitability and economic efficiency. On the other hand, taking into account the realities of the work activity and consequently recognizing the individual and collective intelligence at work in employer-controlled organizations, as well as rebuilding co-operation within workplaces, offer interesting options for consideration to counter those challenges. By enhancing such co-operation, the relationship of subordination, still largely perceived as a tool of corporate control, could become more acceptable as well as compatible with workers’ individual and collective potential for empowerment, on the sole condition that work be the subject of open and informed discussion among them and become understood as a source of health.
All things considered, recognition must be given to the need to take advantage of workers’ intelligence in discussing situations posing dangers to their health, and to enlist it in the operationalization of prevention on the ground, thereby helping to overcome the biases surreptitiously created by the law over the years. We hope through our work to address the remissness of Quebec law in not engaging workers’ intelligence in the construction of a productive exercise in terms of prevention. Quebec lawmakers and workplaces would nevertheless do well to remedy this blind spot in prevention by urging all actors to go well beyond the behaviours of surveillance and compliance legally prescribed for them.
Ultimately, advocating an approach that protects and promotes the fundamental rights of individuals in the workplace, making use of every aspect of their personhood (i.e., their bodies, sensibilities, knowledge and know-how, experiences, insights, responsiveness to the hazards of a work activity, and so on) to carry out tasks, requires acknowledging their intelligence in the construction of their health in the workplace, both in terms of legal frameworks and the ways in which work is organized. In our view, that could be achieved by restoring the industrial citizenship of workers and work groups in their capacity as agents in the construction and transfer of occupational knowledge. Such a major change in paradigm would entail proactive regulation of the existing ultra-productivist dynamics and a reassertion of the value of the collective principles of solidarity and co-operation—neglected for far too long—to make work a vehicle for health and avert the organizational abuses currently committed in its name. Such a change underlies the necessity of making the subject of work the focus of OHS law as well as of legal thinking and the resulting normative proposals, and thus a central public health issue in Quebec workplaces.
