SFTY 6006 - Chapter 2 - Legislative Framework

changes to the criminal code in canada

-company executives can be found criminally negligent for serious occupational health and safety violations and face fines and prison time accordingly

whmis legislation

- 1988 and phased into force across canada between 1988 and 1990

act

- a federal, provincial or territorial law that constitutes the basic regulatory mechanism for occupational health and safety >sets out basic intent and general rights and duties of individuals affected by the law

duties of supervisors

- a person (with/without title) who has charge of a workplace and authority over a worker - can be union members, association members, covered under a collective agreement, plant managers, lead hands, forepersons, school principals or self-employed individuals - general duty to ensure where reasonably predictable the h,s, and welfare of all workers under his/her supervision

general duties

- a primary duty directly articulated in the occupational health and safety act - the general duty provision requiring employers to take every reasonable precaution to ensure employee safety is represented in health and safety acts across Canada

dangerous circumstance definition

- a provision of the act or the regulation is being contravened - a contravention presents a danger or a hazard to a worker - the danger or hazard is such that any delay in controlling it may seriously endanger a worker

mandatory components for ohs in jurisdictions

- activities and policies : requirements for hs activities, ohs policies and prevention programs - components of the act vary, but some are quite consistent

specific duties of supervisors

- advising workers of safety hazards - providing instructions about safety precautions - ensuring workers use protective equipment

how to refuse work properly

- alert employer to the danger and indicate the intention to refuse due to a reasonable assumption that the work is unsafe - employer investigates - another employee cannot be asked to perform the work in the interim - employer writes up report - corrective actions are taken if conclusion that danger is present - if it's concluded that there is no danger, employee can opt to return to task - if they still disagree and refuse, a committee conducts additional investigation and reporting - if conclusion is the same, refusal can be taken to the relevant government ministry - employee can be assigned to other work while investigation continues

CNESST

- also has ability to require a committee in a QB wokrplace regardless of the number of workers

elements of all Canadian OHS legislation

- an act - powers of enforcement - the right of workers to refuse to do unsafe work - protection of workers from reprisals - duties and responsibilities assigned to employers and others

prescribed duties may include

- an employers responsibility to establish occupational health services - a description of the written procedures that may be required - assessing risk for workplace violence given the nature of their workplaces

federal legislation governing the transportation of dangerous goods

- applies to all person who handle, offer for transport, transport or import any dangerous goods > provincial/territorial legislation doesn't always go this far, making it sometimes impossible to determine which statutes apply

90% of Canadian workers

- are regulated by OHS legislation of the province or territory where they work

federal statutes relevant to ohs

- canadian environmental protection act - hazardous products act - canadian charter of rights and freedoms, part 1 of the constitution act - canada labour code, part iv - criminal code of canada - pest control products act - transportation of dangerous goods act - radiation emitting devices act - canada shipping act - radiation protection regulations

what does dangerous goods transportation apply to

- carrier, shippers, transportation intermediaries such as freight forwarders and custom brokers

stop work provisions

- certain persons have authority to stop work under the hs act - bilateral work stoppages allow certified members of the jhs committee, representing both the employer and employee members of the joint hs committee to agree to stop work in dangerous circumstances that become apparent in the course of an inspection or investigation

whmis 2015 changes dues to ghs

- changes in classification criteria with some new classes added, new requirements for supplier labels, new formatting and information requirements for safety data sheets (no longer called material safety data sheets)

westray tragedy

- changes to criminal code followed this incident in 1992 - nova scotia mine explosion, killed 26 miners, determined to be attributable to corporate negligence - canadian laws at the time did not permit criminal charges

change to criminal code

- could lead to a corporation and its managers being criminally prosecuted for failing to provide an appropriate standard of occupational hs in the workplace if an employee died or was injured as a result of that negligence > corporate homicide

when do organizations need joint health and safety committees?

- depends on size and occupational hs jurisdiction it falls under - most hs acts require a joint occupational and safety committee in workplaces with 20 or more employees

duties of joint hs committees

- differ across the country, but can include: > hazard recognition, risk assessment, responding to employee concerns, ensuring that records are maintained and monitored

"ensure" in federal jurisdiction

- duty is sufficiently broad in scope that an employer could be held liable for failing to ensure the health and safety of an employee even if there was an absence of a specific violation to a regulatory provision

federal law employees

- employees of federal government - airports - rail - highway transport

statutes and regulation

- enacted to protect the rights of workers - also establish duties that require compliance

statutes

- establish legal foundation

regulations enacted under the statute

- establish the framework within which the employer will conduct business in order to comply with the law

standards

- established by agencies such as: > canadian standards association (CSA) > international labour organization (ILO) > international organization for standardization (ISO) > national institute for occupational health and safety (NIOSH) > american conference of governmental industrial hygienists (ACGIH)

good from recognizing potential dangers

- establishes a safety guideline for the handling of hazardous materials to ensure the protection of the pubic and the environment

regulations

- explain how the general intent of the act will be applied in specific circumstances > typically have the same force of law as the act

jurisdictions that require joint hs committee

- federal jurisdiction - bc, manitoba, ont, nb, ns, pei, yukon an nwt/nunavut* - some of the jurisidictions have special provisions that can require a smaller organization to have a committee in place as a result of an order and/or when requested by the governing body

bill c-45

- followed westray - federal bill that proposed to address the issue of corporate liability with respect to both fraud and occupational health and safety - passed by parliament in 2003 and became law in march 2004

work refusals

- for reasonable cause - if they believe that doing so would cause danger to themselves or others

GHS

- globally harmonized system of classification and labelling of chemicals - international standard for the classification and labeling of chemicals being adopted by countries around the world - encases global trade and business interaction

Ontario

- has additional provisions for committees when designated substances are in use

3 further elements that ontario added to its legislation

- hazardous materials inventory requirement - physical agents (such as noise) - public's right to know

point of joint hs committees

- helps enact the internal responsibility system - joint, reflects both labour and management particularly in the work of the committee - provides a nonadversarial atmosphere in which labour and management can work together to create a safer and healthier workplace - can bring together knowledge of work tasks and company policies and procedures to improve hs

constructor/ primary contractor

- in hs legislation, a person or company that oversees the construction of a project - ultimately responsible for the health and safety of all workers - have responsibilities similar to those outline for employers

duties of workers

- inclusion of workers' responsibilities and duties is relatively new in hs legislation - before 70's all responsibility for workplace hs rested with the employer - now, employer is solely responsible for paying for health and safety activities, everyone is responsible for making them work

how "ensure" is applied in legislation across Canada

- intended to mean the strongest responsibility possible short of a guarantee

internal responsibility system

- joint hs committee from this idea - the suggestion that work and safety are inexorably linked and that all parties in the workplace have a responsibility to improve health and safety

other names for joint hs committee

- joint occupational health and safety committee - work site safety committee

original 1988 whmis legislation was based on 3 elements

- labels designed to alert the worker that the container contains a potentially hazardous product - materials safety data sheets (MSDSs) outlining a product's potentially hazardous ingredients - procedures for safe handling of the product and employee training

if both sides do not agree that there are dangerous circucmstances

- legislation permits unilateral work stoppages with the notification and involvement of the ontario labour relations board

ohs legislation regulates the formation and composition of the joint committee

- legislation: typically mandates that joint committees are structured in such a way that equal or better representation is required from workers who do not exercise managerial responsibilities - most acts outline training requirements for committee members

criminal code

- likely to be invoked in only the most severe, egregious and atypical cases - critics point to the fact that the penalties still do not reflect the seriousness of the charges

other ohs legislation elements that vary across jurisdictions

- mandatory establishment of joint labour/management health and safety committees - hs policies - accident-prevention programs - advisory coucils on occupational hs

guidelines and policies

- more specific rules that are not legally enforceable unless referred to in a regulation or act

labour legislation and standards relating to ohs

- not static - always being updated - changes may be limited and specific, or general

transportation of dangerous goods

- not the exclusive domain of the federal, provincial or territorial governments - the environmental and transportation regulation seeks to supply the framework within which society can protect itself from the risk that attends the transportation of inherently dangerous materials

corporate liability for ohs under the criminal code

- past: directors and officers of incorporated entities were responsible solely to the corporation and shareholders - zone of accountability now extends to the public at large - environmental and ohs statutes have been amended to include broad responsibilities for directors and officers of corporations > can be fined or imprisoned for environmental pollution, or fined for failing to comply with regulatory legislation

quebec's act

- permits the formation of health and safety committees when there are more than 20 employees - committee is established by written notice by the certified association or 10% of the workers in the case of workplaces without certified associations

certain professions that have a limited right of refusal

- police officers, correctional workers, firefighters and health care workers - but doesn't mean that they never have a right to refuse dangerous work

how can they improve hs

- prevention, education and training - providing ongoing forum for problem resolution

worker duties under the Canada Labour Code examples

- properly using the safety equipment and clothes provided - taking all reasonable precaution to ensure their own hs and that of those who may be affected by their work activities - reporting hazards such as defective equipment to the employer

standards and codes

- provide practical guidance on the implementation of occupational health and safety practices; often established by agencies such as the CSA or the ILO >may outline recognized best practices to manage a specific hazard, such as maintenance and operation of a crane or another type of heavy equipment > not necessarily enforceable by law unless they are explicitly identified as required within the OHS act

general/broad based duties include

- providing supervision, education, training and written instructions where applicable - assisting the joint hs committee or representatives - complying with statutes and regulations

corporate homicide

- raises the stakes for managers and corporations - companies cannot shift blame to frontline managers b/c the legislation details that companies are responsible for ensuring that front line staff know the appropriate rules, regulations and working procedures and that employees follow the procedures - no longer possible to claim that employees were derelict in their responsibility

what does the jhs committee lead to

- reduction in # of workplace injuries - doesn't always mean its effective

regulatory laws

- related to environmental assessment, public health, waste disposal, buried fuel tanks and storage or use of pesticides have an impact on the environment, the public and the occupational health and safety of employees - practitioner is required to understand environmental and ohs jurisdiction and the potential for overlap

2 jurisdictions: Newfoundland and Labrador, and Saskatchewan

- require a committee when there are 10+ employees

joint health and safety committees

- required by law in most jurisdictions in canada

alberta

- requires committees at the direction of the minister responsible for the occupational health and safety act

general duty provision

- requires every employer to take every reasonable precaution to ensure employee safety is Canada-wide

ohs acts

- set the minimum requirement for ohs in each jurisdiction - also states the boundaries of its application - also outline mandatory components for ohs within their jurisdiction

section 217.1

- states that those in authority for workers have a responsibility to take reasonable steps to protect those workers from harm - sections 22.1 and 22.2 specify that corporations can be criminally liable for negligence and other offences

general employer general duties

- take every reasonable precaution to ensure employee safety - appoint a competent supervisor - provide info (including confidential info) in a medical emergency - inform supervisors and workers of possible hazards - post the ohs act in the workplace - prepare and maintain a health and safety policy to be reviewed annually - prepare policies regarding workplace violence and workplace harassment

concern with this law

- that it has no teeth in practice - whenever changes could be laid under either the safety legislation (provincial) or the criminal code (federal), the preference seems to be for safety legislation to prevail

the act makes a company responsible for

- the actions of those who oversee day to day operations (supervisors and midlevel managers) - managers (executive or operational) who intentionally commit or have employees commit, crimes to benefit the organization - managers who do not take action when they become aware of offences being committed - the actions of managers who demonstrate a criminal lack of care (criminal negligence)

what did the passing of bill c-45 mean?

- the addition of sections to the criminal code of canada - addition of section 217.1

environmental legislation

- the hs profesional will be aware of the overlap in environmental and ohs statutes and regulations > a chemical that can cause damage to a worker may also cause damage to the ecosystem if release into the environment

remaining 10%

- under federal jurisdiction for occupational health and safety

prescribed duties

- under the ohs legislation a duty to be undertaken b/c of health and safety regulation - may come into effect by regulation at some time

construction projects in certain jurisdictions

- when a construction project is scheduled to commence, a constructor/primary contractor has a duty to notify the authority within a specified time - some require a "notice of project" to be filed outlining the approximate cost, scope, commencement date and duration of the project

appropriate work refusal procedures

- when refusals go through appeals process, courts will consider whether appropriate reporting and investigations took place - will also examine whether the motivation for the refusal was in bad faith - avoiding discomfort vs true safety concern

2 exceptions

- where committees are mandated at the discrention of the agency, minister or safety officer responsible for the health and safety act or by written expression of the workforce

essential theme of work refusals

- worker doesn't have the right to refuse unsafe work if such work is a normal condition of employment - or if the worker by their refusal places another person's safety in jeopardy

whmis

- workplace hazardous materials information system - important aspect of worker's right to know about hazards in their workplaces, particularly about hazards that may be associated with handling, storage, use and emergency measures for chemicals used in the workplace, and community