HRM 305: Health and Safety- Test 1

Introduction of the Factory Act legislation

Provincial legislature enacted a legal framework to ensure no workers are exposed to hazards that it judged to be unreasonable - Ontario Factories Act of 1884. Set specific standards (e.g. for work/children, length of work day) Established a full-time inspectorate Overall, this Act was inconsistent, the standards were uncertain and its enforcement was discretionary.

Definitions in the Act

Section 1 in the Act outlines definitions and terms - it is not included in any of the parts. Definitions establish how, when, and to whom the Act applies. Words are defined because they may not be used in accordance with their conventional (dictionary) definition.

Lingo: The use of "SHALL", "MAY" and "WILL"

These words will change the force of an instruction. Required (shall) to discretionary (may) to possible (will). Will indicates future responsibility.

Main Workplace Parties: Duties

Unlike rights, duties are things these workplace parties must do. We will discuss the following workplace parties: Employer (Section 25-26 Duties of Employers) Supervisor )Section 27 Duties of Supervisors) Worker (Section 28 Duties of Workers) Directors and officers of a corporation (Section 32 Duties of Directors and Officers of a corporation)

Due Diligence

What is Due Diligence? Due means as much as is required, enough, or adequate. Diligence means the degree of attention or care expected of a person in a given situation. Remember employer and supervisor responsibilities? ... take every precaution reasonable in the circumstances for the protection of the worker. Most offences under occupational health and safety law are considered strict liability offences. R. vs. Sault St. Marie (1978) An employer can defend against this type of offence by establishing due diligence. Burden of proof falls to employer to prove that every precaution reasonable has been taken. Consider due diligence as more than a legal defense, it is a standard of behaviour. Reasonable steps toward injury prevention prior to incident occurring or once hazard(s) identified. The presence of a proper system: Measures to monitor health and safety and ensure compliance (policies/procedures). Adequate training provided to all employees. Effective, proactive processes (e.g. RACE). Sufficient documentation.

Internal Responsibility System (IRS)

Who is responsible for OHS in the workplace? Reinforces a shared responsibility for OHS. Internal - to the workforce; to individual work processes (incorporate H+S into all aspects of work), and to you (are you motivated? Do you participate?) The IRS expressed a model of monitored-self regulation. Establishes a framework of authority, responsibility, and accountability (the authority can be delegated along the chain of command) Accountability goes UP the hierarchy--> to managers/supervisors. Information given to front line, but managers can be the "glass ceiling" There is also the External Responsibility System (ERS) for things like audits

Lingo: The use of "AND" and "OR"

Will always appear at the end of the second last clause or sub-clause in every sub-section.

Employer

a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services; ("employeur") "Follow the money"

Workplace

any land, premises, location or thing at, upon, in or near which a worker works

OHS is concerned with...

the identification (recognition), evaluation (assessment), and control of those hazards and stressors arising in, and from, the workplace which may cause losses. RACE to safety = recognition, assessment, control, evaluation

Uranium Miners Strike (1974)

Concern regarding exposure to silica. Resulted in a Royal Commission (Hamm Commission) to investigate health and safety in mines. The Hamm Commission Report was released in 1976. Recommendations formed basis of what we know as the Ontario Occupational Health and Safety Act. Increase worker knowledge of OHS. Formation of an Internal Responsibility System (IRS). Formation of a Joint Health and Safety Committee (JHSC). 1976 Bill 139 establishes the Employees Health and Safety Act

Explain the doctrines of: Contributory Negligence Voluntary Assumption of Risk Fellow-Servant Rule

Contributory Negligence: If you contribute to the incident, you are liable Voluntary Assumption of Risk: if you accept the job, you accept the risk Fellow-Servant Rule: Extends Voluntary Assumption of Risk; if coworker contributes, employees are liable.

OHS laws in Canada

Federal Legislation Canada Labor Code Part II and regulations Interprovincial Activities, Communication Services, Crown Corporations, Federal Employees, etc. Provincial Legislation (Ontario) Occupational Health & Safety Act and many regulations. Workplace Safety & Insurance Act

Who are the four main stakeholders in Health and Safety?

Government: Sets standards and compensates injured workers Employers: Must comply with standards and educate people in the workforce (enforce) Employees: must also comply, wear PPE, and report hazards to employers Organized Labour: Champion for change, guidance

Supervisor

Has charge over a workplace/authority over a worker

Committee

JHSC

Ontario Occupational Health and Safety Act (1978)

Bill 70 was passed. All OHS legislation combined into one statute - the Occupational Health and Safety Act (the Act). The philosophy behind the Act is known as the Internal Responsibility System (IRS) Expanded the rights of workers. Occupational Health and Safety Act was proclaimed on October 1, 1979.

Lingo: "IDEM"

If a sub-section has the same title as the one above it, the Latin word Idem (meaning "the same") is used.

Competent Person

(a) is qualified because of knowledge, training and experience to organize the work and its performance, (b) is familiar with this Act and the regulations that apply to the work, and (c) has knowledge of any potential or actual danger to health or safety in the workplace *A SUPERVISOR HAS TO BE A COMPETENT PERSON*

All OHS legislation includes the following elements:

- An Act Powers of enforcement Workers' right to refuse unsafe work Protection of workers from reprisals Duties and responsibilities assigned to employers and others Duty to take every precaution reasonable to ensure employee safety is Canada-wide.

Traditional approach to OHS has emphasized the Three E's. What are these?

- Engineering - Educating - Enforcing But this does not focus on the people aspect at all. Doing so is likely to foster a more robust OHS system.

Duties of Supervisors

- Have a duty to take every precaution reasonable in the circumstances for the protection of a worker. Must ensure workers comply with the Act and regulations and that they use protective devices or clothing required by employer. Have a duty to advise workers of actual or potential hazards including written instructions where prescribed. 27 (2) (c) A supervisor shall take every precaution reasonable in the circumstances for the protection of a worker. (also have general duty)

Hogg's Hollow Tragedy (1960)

At the York Mill subway station, 5 employees were sent underground to work. Due to smoke from a fire, they were trapped. Emphasized the inadequacy of the regulatory system with respect to enforcement and employer responsibilities. Resulted in a Royal Commission (McAndrew Commission) to study and modernize all worker safety regulations. Resulted in the Industrial Safety Act of 1964. Worker safety and health was the primary focus. Workers could not participate in enforcing the legislation.

Lost-time injury

A workplace injury that results in the employee missing time from work.

What is the purpose of the Act?

-Provide healthy, safe workplace -Assign responsibility -Promote active participation The Act also sets a minimum standard to protect workers from hazards on the job. You can do more but you cannot do less!

Occupational illness

Any abnormal condition or disorder caused by exposure to environmental factors associated with employment

The three basic rights of workers

1. The right to know about hazards in the workplace (actual and potential) e.g. with WHMIS 2. The right to participate in JHSCs or as a worker health & safety rep. 3. The right to refuse unsafe work

Occupational injury

Any cut, fracture, sprain, or amputation resulting from a workplace accident

Regulations

Apply principles of act in the workplace

Director vs. director

A Director is an inspector from the Ministry of Labour; a director is within the organization

Joint Health and Safety Committee

A Joint Health & Safety Committee (JHSC) is an advisory body made up of management and workers members (bipartide) - internal auditor of the IRS. Primary functions of the JHSC include: Identify health and safety hazards. Assess health and safety hazards. Recommend and follow-up on control measures. Take part in workplace accident investigations, work refusals and act as a liaison to resolve OHS concerns. 9 (2) A joint health and safety committee is required, (a) at a workplace at which twenty or more workers are regularly employed; (b) at a workplace with respect to which an order to an employer is in effect under section 33; or (c) at a workplace, other than a construction project where fewer than twenty workers are regularly employed, with respect to which a regulation concerning designated substances applies. "Regularly employed" means if job lasts for longer than 3 months. If you have less than 20 workers but more than 5, you need a health and safety rep. 9 (6) A committee shall consist of, (a) at least two persons, for a workplace where fewer than fifty workers are regularly employed; (1 mgmt 1 worker) or (b) at least four persons or such greater number of people as may be prescribed, for a workplace where fifty or more workers are regularly employed (2 mgmt, 2 worker) 9 (7) At least half the members of a committee shall be workers employed at the workplace who do not exercise managerial functions. They need to be selected by the workers they represent (peers or volunteer to be there) 9 (10) A member of the committee who ceases to be employed at the workplace ceases to be a member of the committee. 9 (23) Subject to subsection (24), the members of a committee who represent workers shall designate a member representing workers to inspect the physical condition of the workplace. *View JHSC image* 9 (25) The members of a committee are not required to designate the same member to perform all inspections or to perform all of a particular inspection. 9 (26) Unless otherwise required by the regulations or by an order by an inspector, a member designated under subsection (23) shall inspect the physical condition of the workplace at least once a month. 9 (32) A constructor or an employer required to establish a committee under this section shall post and keep posted at the workplace the names and work locations of the committee members in a conspicuous place or places where they are most likely to come to the attention of the workers. 9 (33) A committee shall meet at least once every three months at the workplace and may be required to meet by order of the Minister. 9 (35) A member of a committee shall be deemed to be at work during the times described in subsection (34) and the member's employer shall pay the member for those times at the member's regular or premium rate as may be proper.

Offences and Penalties

A contravention or failure, by a person, to comply with a provision of the Act or regulations or an order/requirement of an inspector: Fine of not more than $25,000 per offence; or Imprisonment for a term of not more than twelve months, per offence or both. A contravention or failure, by a corporation: Fine of not more than $500,000 per offence.

Brown lung (byssinosis)

A disease of the lungs caused by excessive inhalation of dust; the disease is in the pneumoconiosis family and often affects textile workers

Work Refusal

A worker may refuse to work or do particular work where he/she has reason to believe: Any equipment, machine, device or thing likely to endanger; The physical condition of the workplace likely to endanger; Workplace violence is likely to endanger; or Any equipment machine, device or thing or the physical condition of the workplace is in contravention of the Act or regulations and likely to endanger. 44 (1) "dangerous circumstances" means a situation in which, (a) a provision of this Act or the regulations is being contravened, (b) the contravention poses a danger or a hazard to a worker, and (c) the danger or hazard is such that any delay in controlling it may seriously endanger a worker. ALL THREE NEED TO BE PRESENT Certified Workers: 1) Investigate dangerous circumstances 2) Stop work Training Requirement 5.1: Unless otherwise prescribed, a constructor or employer shall ensure that a health and safety representative selected under subsection (5) receives training to enable him or her to effectively exercise the powers and perform the duties of a health and safety representative. Certain professionals have a limited right to refuse work when: Work refusal criteria is inherent in the worker's work or is a normal condition of employment; or The refusal would directly endanger the life, health or safety of another person. (e.g. police, firefighter, hospital) Before refusing work, you have an obligation to report a hazard first. There are two, unofficial, stages of a work refusal: Stage 1: Worker has reason to believe. Immediately reported to supervisor (or employer) who must investigate forthwith. Worker remains in a safe location. Stage 2: Work has reasonable grounds (objective evidence) Ministry of Labour notified promptly. Reassign or assign another worker. You can reassign the refused work, but you have to be transparent about the work refusal, in the presence of a worker member on the committee The worker cannot go home; need to be at the workplace to be available for investigation.

Codes/Standards/Guidelines

Are not law, unless cited in Act or regulations. Standards exist to explain how to implement regulations.

Reprisals

According to section 50 of the Act...an employer (or person acting on behalf of employer) cannot dismiss, threaten, discipline, suspend, intimidate, coerce or impose a penalty upon a worker because the worker has acted in compliance with the Act or regulations. Reprisal against you? Contact OLRB

Types of Regulations

Act expresses principles or intent of the law. Regulations state how the act (and its principles) will be applied. There are 4 major types of regulation: 1. WHMIS regulation 2. Sector regulations (industrial establishments, mining, construction, etc.) 3. Designated substances regulations 4. Control of Exposure to Biological or Chemical Agents

Prescribed

By a regulation made under the Act (specific to organization)

What are the three domains of importance of OHS? Briefly describe each.

Economic: Health and safety is like an iceberg. Direct costs are visible (associated with the injury itself), but there are also indirect hidden costs (e.g. lost production, lost quality, retraining). Indirect costs are typically 3-10x the amount of direct costs. Legal: Compliance with the minimum standard. Many organizations want to go above this. Moral: Going above and beyond what is required. More training, safety features, etc. For employees, this has impact on personal life and family. We want people to go home safe.

Who bears primary responsibility under the H&S Act?

Employers, but remember that everyone bears some responsibility.

Duties of Directors/Officers of a Corporation

Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with: The Act and regulations. Orders and requirements of inspectors and Directors Review policy annually

Duties of Employers

Have a general duty ensure the Act and regulations are complied with. Have a duty to take every precaution reasonable in the circumstances for the protection of workers. * GENERAL DUTY CLAUSE 25 (2) (h) "an employer shall take every precaution reasonable in the circumstances for the protection of a worker" (Think, what would a cautious or prudent person do? Plan for emergencies and safety risks) Obligation to Joint Health and Safety Committee: Establish as required. Ensure one worker and employer representative are certified. Pay for time spent fulling duties. Provide pertinent information to the committee. 25. (1) An employer shall ensure that, (a) the equipment, materials and protective devices as prescribed are provided; (b) the equipment, materials and protective devices provided by the employer are maintained in good condition; (c) the measures and procedures prescribed are carried out in the workplace; (d) the equipment, materials and protective devices provided by the employer are used as prescribed; 25 (2) (a) Without limiting the strict duty imposed by subsection (1), an employer shall, (a) provide information, instruction and supervision to a worker to protect the health or safety of the worker Information = Providing materials, instruction = training and teaching, supervision = overseeing workplace 25 (2) (c) when appointing a supervisor, appoint a competent person 25 (2) (i) post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers 25 (2) (j) prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy Policy is typically just one page; the program goes much more in depth

OHS History: Industrial Capitalism (1800s)

Heavy focus on transportation Wage labour was the major form of production. Industrial processes and an increase in labour lead to an increase in work related injuries and deaths (mechanistic equipment). Widows and workers sought relief through the courts. Courts used doctrines

Duties of Workers

Must work in compliance with the Act and regulations. Must wear and use protective devices or clothing provided by the employer and not interfere with protective devices. Have a duty to report violations of the Act, defective equipment or workplace hazard they are aware of. Must not operate equipment in a way that may endanger themselves or another worker Prohibited from engaging in contests, pranks, etc. 28 (2) (c) No worker shall engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

Board

Ontario Labour Relations Board

APPLICATION (PART I)

Part 1 sets out the application of the Act. In general, the Act applies to all workers in Ontario. Exceptions include federal workers and work done by owner in or around a private residence. Section 2 To whom the Act applies. Section 3 Where and to whom the Act does not apply Section 4 Application of Act to self-employed persons. Section 2 (2) sets the act as the gold standard

Divisions of the Act

Parts - Group sections covering the same subject matter PART II (capital letters; large roman numerals) Headings - The contents of a Part. ADMINISTRATION (capital letters) Sections - Main idea or subject heading. 1, 2, 3 (sequential numbers in bold print) Sub-section - Expand on main idea of section. (1) (2) (3) (sequential numbers in brackets; no bold; indented) Clause - Divide the subsections. (a) (b) (c) (lower case letters in brackets) Sub-clause - Expand on points made in a clause. (i) (ii) (iii) (small roman numerals in brackets)

Constructor

Person or company that oversees the construction of a project and that is ultimately responsible for the health and safety of all workers (similar to resp. outlined for employers) REVIEW WHMIS pg. 35- 44 Review Law Exercise

Enforcement

The Ministry of Labour enforces the Act. Inspectors have authority to: Enter any workplace, question any person, conduct tests, make inquiries, require reports, impose orders, and stop work. Everyone in the workplace is expected to cooperate. Section 54 Powers of Inspectors 54 (1) (a) An inspector may, for the purposes of carrying out his or her duties and powers under this Act and the regulations, (a) subject to subsection (2), enter in or upon any workplace at any time without warrant or notice; (2) An inspector may only enter a dwelling or that part of a dwelling actually being used as a workplace with the consent of the occupier or under the authority of a warrant issued under this Act or the Provincial Offences Act. Section 61 Appeals 61 (1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order. Section 62 Interference 62 (1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations. 62 (2) Every person shall furnish all necessary means in the person's power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector, (a) in the exercise of his or her powers or the performance of his or her duties under this Act or the regulations; or (b) in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations. 62 (3) No person shall knowingly furnish an inspector with false information or neglect or refuse to furnish information required by an inspector, (a) in the exercise of his or her powers or the performance of his or her duties under this Act or the regulations; or (b) in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations. Section 65 Immunity Ministry of Labour will determine if duties and obligations are fulfilled. Inspect the workplace Investigate hazardous situations or work refusals Investigate OHS complaints Order compliance with the Act or regulations Initiate prosecutions Both Ministry of Labour and ERS enforce Act

Accident proneness

The notion that some individuals are inherently more likely than others to be involved in accidents, as a result of individual characteristics

Worker

does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program: 1. A person who performs work or supplies services for monetary compensation. 2. A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled. 3. A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university or other post-secondary institution. 4. A person who receives training from an employer, but who, under the Employment Standards Act, 2000, is not an employee for the purposes of that Act because the conditions set out in subsection 1 (2) of that Act have been met. 5. Such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation; ("travailleur") Prior to last year this definition only included those given monetary compensation. Volunteers are not included in this definition, but we should treat them like unpaid workers.