4030 study notes
Managing health and safety of contracted work
4 steps: 1. Selection 2. Contract language 3. Orientation 4. Monitoring
the explosion
52 provincial OHS chargers were laid and then withdrawn; criminal chargers laid but stayed there was lack of disclosure
Bird's triangle
Little stuff at the bottom Gradations in-between Big catastrophic event at top
Administrative penalties
Mechanism for enforcing compliance with regulatory legislation. Monetary penalties assessed and imposed by a regulator without recourse to a court or independent administrative tribunal. This avoids use of courts. The delay and cost of court proceedings are avoided, and decisions made by officials acquainted with the purposes of the regulations in issue, rather than by judges who lack such specific expertise.
concurrent investigations
Ministry of Labour: Metron Owner plead guilty to 4 charges under OHSAct Remaining 12 charges dropped Fine was $90,000 What is the intend of Regulatory penalties? Toronto Police: Metron plead guilty and negotiated a settlement Fine was $230,000 Double the previous largest fine (First corp guilty plea in Ontario under Bill C45) What is the intent of Criminal penalties?
the role of social norms and social amplification in enforcement activities and penalties
The following has led the general public to be less tolerant of employers who hurt or kill workers -workplace violence
why use primary prevention?
We use primary prevention methods before the person gets the disease. Primary prevention aims to prevent the disease from occurring. So primary prevention reduces both the incidence and prevalence of a disease. Encouraging people to protect themselves from the sun's ultraviolet rays is an example of primary prevention of skin cancer.
ONTARIO
has taken the lead in terms of number of prosecutions and the size of fines; relatively large numbers of charges laid in this province may simply reflect size of Ontario ontario courts have little tolerance for offenders
impact of corporate culture and IRS on prosecution
if you can't show that you have a committment to health and safety, you wont succeed when showing crown that you did everything to protect employee
criminal neglignece
in doing anything or omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons
Site owner vs site operator
in special cases, site owner might not be site operator
inspections
intended to verify that the workplace is in compliance with regulations and to identify contraventions (instances of non-compliance); contraventions are written up in the form of notices of contravention or orders
absolute liability (criminal offence)
intent is to prevent conduct from continuing and aims to punish the accused
ICOH
international commission on occupational health identifies a multidisciplinary approach
Bill C-45
introduction of this bill is attributed to the incident that occurred at the Westray Mine in NS 1992
criminal law
is a pure criminal offence i.e. break and enter
why use secondary prevention?
is designed to identify and adequately treat a disease or injury process as soon as possible often before any symptoms have developed. These could include medical surveillance and bio-testing
why use tertiary prevention?
is designed to treat a disorder when it has advanced beyond its early stages so as to avoid complications and limit disability, or, if the condition is too advanced, to address rehab and palliative needs
health and safety systems
is it important FOR THE POLICE? is it important FOR THE CORPORATION/INDIVIDUAL? -especially when conducting investigations
regulatory offences
is of simple nature i.e. hurrying, carelessness, sloppiness, etc.
range of penalities
life imprisonment (for death) 10 years imprisonment (for injury)
secondary
to detect disease when it is asymptomatic and when treatment can stop it from progression i.e. Screening Tests Occupational histories Examination Surveillance
examples of contracted work
turnarounds and shutdowns (process-type facilities i.e. power plants, refineries, chemical plants shut down all or parts of their facilities for maintenance and refurbishing)
knowledge
what is going on, what is safe, how to do it right
vulnerable work
workers are truly vulnerable if employers take advantage of vulnerability i.e. contracted workers: workers working in an assembly line putting together electronics as well as a refinery (i.e. BP) - volatile workplace
monitoring
your duty to make sure contracted employer complies with the act and regulations; monitor the work of the employer to ensure it is being carried out safely (degree/frequency of monitoring is based on risk and determined by project cordinator)
benefits of contracted work 2
-Contractors do the same thing over and over so they are more efficient at their job time-wise -Only need to pay them for the time they're there -No need to pay benefits i.e. workers compensation if they get injured -A decreased system of responsibility /accountability on the employers behalf -Easier to fire contractors/not held liable by the labour board because of loopholes in contracts
creative penalties
-fine in an amount equal to estimation by the court of the amount of any monetary benefits accrued as a result of commission of offence -publish facts relating to offence -pay amount for the purpose of public education -perform community service -provide a bond or pay an amount of money to court to ensure compliance with order -secure good conduct to prevent repeat offences or similar offences
5 aims of occ health
-promotion and maintain of the highest degree of the physical, mental and social wellbeing -protect workers from workplace factors that can injure worker's health -adapting the work to the person and person to the job (ergonomics and psychosocial factors)
sentencing factors/considerations
1. Magnitude of risk and degree of failure to act to prevent bodily harm 2. Degree and permanence of the injury (degree: how bad is breaking your leg, permanence: that isn't permanent)
purpose of code of ethics
1. Promotion of ethical conduct and deterrence of unethical conduct 2. A set of standards or norms against which to judge professional behaviour 3. Guidance in situations where the occupational health professional is facing ethically difficult decisions 4. Enhancement of public trust and respect for occ health professions
Expert Panel Review: MOL should
1. Review its current enforcement policy and supports for inspectors to ensure consistency 2. Review the offenses for which tickets can be used and revise existing fines 3. Enhance current legislative provisions for penalties by adding administrative monetary penalties as an enforcement tool 4. Institute a regulatory review approach that ensure regulations are current, consistent and provide compliance flexibility and support
Hazards exposed to contracted worker
1. contracted workers may be exposed to hazards which cannot be controlled by their own employer 2. the contracted workers may create hazards for the employees of the site operator; to protect their own workers, the site operator may need to control/manage activities of contracted workers to some degree 3. there may be situations in which the workers of more than one contracted employer are engaged (working in close proximity)
benefits of contracted work
1. cost savings 2. contracted employer has specialized skills or some other ability site owner/operator doesn't 3. contracted employer will do work that others wont 4. use of contracted employer reduces risk of injury or some other loss 5. increased flexibility in staffing
concepts that are consistent across most jurisdictions
1. definition of the work site or workplace is established; purpose is to enable the duties and responsibilities of site owners and others to be as site-specific as possible 2. the role and duties of the site owner are defined 3. other roles - constructor, contractor, prime contractor, each one with its duties are set out 4. the site owner is allowed, in appropriate circumstances, to contract out of his duties - by passing them over to the site operator or to another person
offences
1. fails to discharge a duty 2. contravenes a regulation or provision 3. fails to comply with order or direction 4. obstructs an OHS officer 5. makes a false entry in book 6. takes discriminatory action against worker
westray mine explosion PROMISES
15 years of good paying jobs and state of the art safety
What to do?
ACT PLAN DO CHECK
Reasonable care
Anticipate and recognize hazard Implement system to prevent harm Ensure that system was working
Elements of control
Authority Knowledge Skill Proximity
Penalties
CoCorporate fines high to low: federal inspectors vs. ministry inspectors (20,000 Individual fines high t low (25,000-3,000 - quebec is lowest) jail time high to low (1 month in PEI and 3 years in Yukon) other penalties: repeat offender amount, administrative penalties high to low, creative penalty options, etc.
teritary
Disease has declared itself; to treat disease to avoid complications, further deterioration & limit disability Where disease is fatal- to maximizes the amount of high quality time a person has left
primary
Keeps disease from occurring by removing its causes Use of hazard and exposure surveillance programs help reduce risks Hierarchy of controls reduce risk factors
additional hazards contracted workers bring
People don't know where things are (equipment in your way), a lot more workers; equipment and processes may not be familiar; procedures the new employees bring in (they may have PPE but the other workers around don't); misunderstanding of who is the boss and who they need to answer to; schedules (who makes their schedules and is timing flexible...they may have other jobs)
The intent and impact behind enforcement penalties under Strict Liability Statutes
Scheduled offences Fines Administrative penalties Incarceration: Jail Creative penalties
Scheduled offences
Scheduled offences: See preface of OHSAct for list of scheduled offenses. These are similar to tickets issued by the police and contraveners have regress in the courts
Westray public inquiry
Seven Contributory Responsibilities for enforcement inspectors: 1. Evaluation of IRS during inspections and investigations 2. Determine whether decisions made between wpl parties are appropriate 3. Take action if IRS is malfunctioning 4. Make decision in work refusals re) likeliness to endanger 5. Issue orders for non-compliance 6. Provide more attention where IRS fails 7. Concentrate on wpls with consistent non-compliance or have poor lagging indicators
aftermath of Cotton Felts
The Court of Appeal emphasized that each case must be decided upon its own merits • the size of the company involved; • the scope of the economic activity at issue; • the extent of actual and potential harm to the public; • the maximum penalty prescribed by the statute.
Cotton Felts Ltd 1982
Worker lost his arm caught by a roller and pulled into machine he was cleaning, resulting in an amputation below the elbow. Worker had failed to stop the machine before he began cleaning it. Earlier, another employee had injured his thumb while working on a similar machine in motion. An inspection of the workplace by the Department of Labour resulted in 50 work orders and Company was charged under section which provides that a machine shall only be cleaned when motion that may endanger the worker has stopped. At trial, it was shown that management knew that the machines were cleaned without being turned off. Company pleaded guilty, sentencing was adjourned. The company spent $100,000 in h&s improvements. Crown recommended $2,000 to $3,000, company asked for less. Court ignored both and imposed $20,000 emphasizing the importance of general deterrence. At the time, this fine was significantly higher than other fines imposed for similar offences. The maximum fine permitted by the Act at that time was $25,000.
defence
accused has to defence due diligence, that they did everything reasonable possible in circumstances to prevent the incident from occurring
FAILURES 2
after 6 days of rescue attempts mine owner addressed rescuers and said whats done is done; "we need to get mine open as fast as possible so you can get your jobs back" 11 bodies remained buried mine was never re-opened (steel workers union ratified by workers)
due diligence
aim has been to look at this as a legal defence; DD is a way of conducting business
strict liability law
also called public welfare law and liability law aimed at person caught in machine instead of person who let person get caught in machine
PROMISES 2
an inquiry will be held to learn how this happened and to prevent it from happening again; 4years later, the inquiry began
code of ethics
are standards process. It is not rule based, it is generalized guidelines from which you would work. It is not legislation.
directing mind
bill c-45 provides for separation of physical and mental element of offences attributable to organizations. the physical element could be provided by an employee, the mental element by a senior member of the organization; both no longer need to be derived from same individual
examples of contracted work 6
body shop (trades or operators who work side by side with company employees); these workers could receive paycheque from nominal employer who could be an agency but work is directed by site operators
examples of contracted work 4
brought in on a one-off basis (i.e. specialized activities such as a diving company brought in to inspect the intake at a water treatment plant)
FAILURES
cave ins, rock fails and explosions before mine opened no training provided for experienced or new workers first unionization attempt failed and workers told mine may close worker who signed MOL complaint was fired and MOL inspector testified but couldn't answer why no action was taken, why his report said no flagrant safety violation and why he didn't speak with workers without the mine managers there (even after worker was fired for reporting MOL)
difference between criminal prosecutions and strict liability prosecutions
commission of act: criminal law and regulatory law (strict liability) state of mind: criminal law: guilty, strict liability: based on negligence standard of proof: criminal law: beyond a reasonable doubt, strict liability: balance of probabilities burden of proof: criminal law: on crown, strict liability: on accused penalties: criminal law: criminal code, strict liability: provincial OH and S statute or canada labour code
examples of contracted work 2
construction (new building or plant, new process, expansions)
contract
contracts will address cost, timing, and quality of work to be done...contracts should include: expectations: define the ways in which you expect contracted employer to address health and safety on the job prohibitions: set out things that contracted employer may not do rights: define th set of powers you have to inspect the work, stop the work if it is unsafe and terminate the contract if appropriate
strict liability offenses
created in 1978 when OHSC was created -offences are presumed to be based on negligence, crown must prove otherwise and defendant may chose to offer a defence of due diligence (they took reasonable care)
representative
director, partner, employee, member, agent or contractor of organization
Bill c-45 changes
doesn't change much for managers, supervisors, workers but major change is that a new duty has been added to apply to everyone and includes individuals, organizations and corporations
strict liability offenses
due to negligence or negligent conduct NOT because of a deliberate attempt to commit crime
who has control 2
employer (appoint managers, establish policies,make sure systems are in place and are working) contracted worker (pre-planning the work from a safety point of view, authorizing work with permits, direction of work, inspections, monitoring and correction)
latent defect
employers did not know about hazard nor could they have known
new duty - duty of persons directing work
everyone who undertakes or has the authority to direct how another person does work is under a legal duty to take steps to prevent bodily harm to that person or any other person that could arise from that work or task bodily harm: hurt or injury to person that interferes with health or comfort of that person and is more than merely transient or trifling in nature
Westray Mine Disaster
explosion occurred underground at the mine, resulted in 26 deaths and was the worst industrial accident in Canadian history; two managers were charged with manslaughter and criminal negligence causing death- chargers were also laid under Nova Scotia OHSact but later withdrawn by Crown.
control
flows down or up the chain of command; anyone who has the ability either to authorize work or to stop it has some degree of control
new duty
this new duty makes the offence more specific but it does not change the fact that an individual cannot be convicted of a criminal act unless they commit a criminal act
orientation
make sure everyone is aware of hazards they may be exposed to and the procedures and rules they will need to follow to protect their health while they are on your site - site specific hazards; purpose of orientation is not to train workers (training is responsibility of contracted employer)- they should bring the necessary PPE and be knowledgeable in the risks of their own trades/work but your job is to communicate information vital to their health/ hazards they don't know about
ontario fines
max fine against individual is $25,000 and $500,000 against corporation
investigations
may result in orders, charges being laid, or in assessment of administrative penalties
penalties
monetary fines or imprisonment some jurisdictions want creative sentencing - additional penalties
Balance** EXAM
need to reach a balance between degree of control, knowledge and expertise and safer alternatives - are they available?
MOL prosecution stats
number of inspectors= number of prosecutions
food for thought
o A building organization that hires a company to take over...is that organization accountable for anything that goes wrong when the company they hired hires contractors? o Would a small municipality with 3 workers who contract out the entire work to be done (through another organization) be held accountable if something goes wrong
Contracted workers
people that are not in the position that are hired for standard work hours; these folks have precarious employment - one of those factors of being a vulnerable worker
proximity
person who is present in the filed during work is better placed to know whats happening and to take steps to make the work safe than someone who is remote
authority
powers granted by legislation (right to refuse) financial control executive control experience expertise ownership contractual rights other forms: older vs younger, bigger vs smaller
factors to consider when monitoring
previous experience with contracted employer experience with supervisor experience of employer's work team doing that type of work inherent hazards of work duration of work and size of crew hazards of the area any other facts that might increase risk
central purpose of occ health professionals
primary prevention
prevention
primary, secondary and tertiary
Where do professionals work?
private practice, gov'ts, research firms, NGO's, employers, unions, etc. (Occ Physicians, Occ Health Nurses, Occ Hygienists, Occ Psychologists, Ergonomists, Rehabilitation Therapy, Primary Care Physician, On-site Professionals, Workplace Inspectors) Who else is involved? Government Private Sector In Workplaces
intent of strict liability law
protect the public, promote wider interests and aimed at the consequences of conduct
organization
public body, body corporate, society, company, firm, partnership, trade union or municipality or association of persons that is created for a common purpose, has an operational structure and holds itself out to the public as an association of persons
examples of contracted work 3
regular activities (continuous everyday tasks i.e. mining company, site security)
examples of contracted work 5
regular short-duration activities (workers come on site regularly but only for short periods of time...their tasks are low risk i.e. reading a gas meter, delivering papers, filing the pop machine)
senior officer
representative who plays an important role in the establish of organization's policies, or is responsible for managing important aspect of activities i..e director, chief executive officer, financial officer
absolute liability (criminal offence)
required elements of guilty; physical element and mental element with intent; there is a challenge in proving intent and pining that offence on somebody
selection
site operator is to perform a thorough evaluation of the contracted employer's safety program against the health and safety requirements of the work before the contracted employer is hired
health and safety system elements
systems of work equipment and effective maintenance PPE warning systems and other safety devices training Direction and Instruction Information Monitoring and correction plus..Documentation
orders
take measures to come into compliance with regulations; stop using or supplying unsafe equipment or to stop work that is dangerous to workers
Who has control
the degree of control and the means to exercise that control is different for worker (right to refuse work...empower workers to speak up for safety) supervisor (ability to authorize work, monitor work, stop it and discipline or penalize those who do unsafe behaviour) management (establish priorities, approve expenditures, appoint, promote, fire and reward supervisors and set the tone for safety)
after westray
the directing mind element was removed so it is easier to convict corporations for actions of senior officers and others police have increased investigations in workplace injuries and fatalities
the aftermath
the public inquiry was ordered, halter and then reinstated (#73 legislation to ensure corporate executives and directors are held properly accountable for workplace safety)- was reinstated bill was tabled by NDP in 1999 but only 12 years after explosion, bill C-45 came into force in 2004 no one invovled in Westray was held accountable
contractors
there is a loss of control over timing of activities, quality of work, the worker involved, maintenance of equipment (CO unmaintained floor cleaner), types of quality of products used and training of workers
IRS
there is importance of a firmly established IRS prior to a significant injury event - a well established plan do check act system can assist wit injury prevention and establish the absence of negligence in an investigation