Introduction
New prevention measures
Shifting prevention mandate to Ministry of Labour
Mandatory training
New powers for joint health and safety committee co-chairs
Reprisals
Codes of practice
Omissions from Bill 160 amendments
In early December 2010 the report of the Expert Advisory Panel on Occupational Health and Safety (the Dean Panel) set out 46 detailed recommendations to change the occupational health and safety system in Ontario. In June 2011 Bill 160 was passed to implement many of the Dean Panel's recommendations. As Bill 160 became law quickly following the Dean Panel's report, it left many Ontario employers wondering which Dean Panel recommendations made it into Bill 160, which were left out and what is yet to come. This update looks at the status of occupational health and safety change in Ontario with reference to the Dean Panel report and the Bill 160 amendments.
The Ontario Ministry of Labour immediately indicated its commitment to adopt the Dean Panel's recommendations and promptly established an implementation team consisting of its own personnel, members from the Workplace Safety and Insurance Board (WSIB) and members of existing health and safety associations. But Bill 160 is just the beginning. Implementing all of the recommendations requires the development of numerous new regulations, operational policies, procedures and infrastructure at the ministry. The full implementation of all the changes residing in Bill 160 may still require further changes to the Occupational Health and Safety Act and the Workplace Safety and Insurance Act.
At a high level, Bill 160 creates the structures and framework necessary to implement the vast and varied recommendations of the Dean Panel – whether they are contained in Bill 160 or await implementation through future legislation or other means.
The Bill 160 amendments created a significant role for a new chief prevention officer, to be appointed by the minister of labour, who is supported by a new Prevention Council in carrying out a broad new set of duties mandated under the Occupational Health and Safety Act. In August 2011 George Gritziotis was appointed as Ontario's first chief prevention officer. Gritziotis previously served as the founding executive director of the Construction Sector Council and assumed his new role on October 17 2011.
Bill 160 also created provisions for the new Prevention Council, comprised of employers, representatives of trade unions and provincial labour organisations, non-unionised workers, the WSIB and other occupational health and safety experts. Provisions relating to the Prevention Council and the chief prevention officer became law when Bill 160 received royal assent on June 1 2011.
An interim Prevention Council is in place, but the composition of the Prevention Council has not yet been announced. Employer representation is still required. It is expected that the council will select a chair; the chair is assigned no specific powers by the bill, but he or she will communicate with the chief prevention officer and the minister of labour on behalf of the council. The role of the new chief prevention officer and the Prevention Council appears largely advisory in nature. However, they are nonetheless expected to be influential because, by April 1 2012, the minister will be required to consider advice received pursuant to the Occupational Health and Safety Act. Their key functions involve advising the minister about preventing work-related injuries and illnesses, provincial occupational health and safety strategy and any other matters specified by the minister.
The Dean Panel report contained a recommendation that the council should be charged with creating a multi-year social awareness strategy directed at reducing public tolerance of workplace injuries, illnesses and fatalities. Under the Bill 160 amendments, that duty rests with the minister. However, the minister is empowered to delegate the power to an employee of the ministry, such as the chief prevention officer, who can in turn seek advice from the council. It is anticipated that the minister, the chief prevention officer and the Prevention Council will largely shape the direction of future health and safety strategy in Ontario.
Shifting prevention mandate to Ministry of Labour
Bill 160 added provisions to the Occupational Health and Safety Act specifying that the minister will now be responsible for preventing work-related injuries and illnesses. These provisions will become law no later than April 2012. This is creating some confusion for stakeholders, as the transfer of authority and programmes is starting to take place, but the provisions await proclamation. The minister will have express powers to:
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promote public awareness of occupational health and safety;
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educate employers and others about occupational health and safety;
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foster commitment to occupational health and safety among employers, workers and others; and
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make grants to support occupational health and safety, which would include funding research.
Part 2 of the Workplace Safety and Insurance Act – the provisions related to injury and disease prevention – have been repealed. Those functions are to be transferred to the minister, who will now have the power to create 'designated entities', which will include safe workplace associations, training centres or medical clinics specialising in occupational health and safety. In short, the minister and not the WSIB now sets the standards for these organisations. All existing safe workplace associations, clinics and training centres are expected to be retained.
Setting of training standards and recommended training
The Bill 160 amendments permit the minister to establish standards for training programmes and to approve programmes that meet those standards. They also empower the minister to collect information regarding a worker's completion of an approved training programme and, with a worker's consent, to disclose such information to anyone – including current or potential employers. In short, the ministry may become a repository for information about specific training that a worker has received which can be accessed by workers and employers. This could lead to greater access to the existing training status of a particular worker.
The Dean Panel recommended mandatory health and safety awareness training for all workers and supervisors responsible for frontline staff. It was recommended that such training include:
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health and safety rights and responsibilities;
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the role of health and safety authorities, the ministry and the WSIB;
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hazard recognition, control and elimination; and
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the Workplace Hazardous Materials Information System.
Mandatory training on high-risk issues, starting with fall protection training, was recommended. All standards and content for the proposed mandatory health and safety training (ie, free mandatory entry training for workers, free mandatory entry training for supervisors, mandatory construction worker training and mandatory fall protection training) will be set by the ministry through the chief prevention officer. The ministry is currently developing this training, but regulatory change and perhaps further Occupational Health and Safety Act amendments will be required beyond the Bill 160 amendments. Given that this training will be made available in multiple languages and delivery formats, the current estimate from the ministry is that the recommended training will be available in 18 to 24 months.
The ministry is considering mandatory fall protection training in all sectors, starting with construction. Existing training that meets the new standards is expected to be recognised under equivalency provisions.
The provisions relating to the authority over training all became law on receipt of royal assent on June 1 2011. However, as yet no provisions require employers or constructors to provide specific additional training pending the development of training programmes and legislative change.
Bill 160 also provides for a change in the authority over certification training for joint health and safety committee members. As with designated entities, this responsibility is in the process of being transferred from the WSIB to the Ministry of Labour. All standards for training or other requirements for becoming a certified member of a joint health and safety committee, and the power to certify a person meeting the requirements, will rest with the ministry, through the chief prevention officer, on or before April 1 2012.
Health and safety representative training
A priority recommendation was a new requirement that health and safety representatives receive training. Previously, the Occupational Health and Safety Act imposed no obligation to train a health and safety representative, required at Ontario workplaces where the number of workers is regularly between six and 19. Bill 160 amended Section 8 of the act to require a constructor or employer to ensure that a health and safety representative receives training to enable him or her to exercise the powers and perform the duties of a health and safety representative effectively. The Bill 160 amendments state that this training shall meet such requirements as may be promulgated in supporting regulations.
Provisions relating to this mandatory training have been passed, but have not yet been proclaimed in force. Unlike some of the amendments mentioned above, these provisions will not come into force until proclaimed. The standards have not yet been set. The training required may well be 'certification light' (ie, something less than is required for certified members of a joint health and safety committee).
New powers for joint health and safety committee co-chairs
Bill 160 amended Section 9 of the Occupational Health and Safety Act to permit a single co-chair of a joint health and safety committee to submit written recommendations directly to the employer or constructor. Previously, the act gave the power to make recommendations to the committee as a whole. The amended Section 9 states that if the committee has failed to reach consensus about making a recommendation after attempting in good faith to do so, either co-chair of the committee is permitted to make a recommendation. Employers and constructors have the same obligation to respond to a recommendation from an individual co-chair as existed for recommendations from the entire committee. These provisions have been passed and will be proclaimed in force no later than April 1 2012.
The Dean Panel expressed concern regarding the manner in which reprisal complaints, made under Section 50 of the Occupational Health and Safety Act, were handled. Its report identified that reprisal complaints, which allege retaliation for seeking the enforcement of rights and obligations under the the act, are not prosecuted by the ministry, and that non-union workers have difficulty navigating the complaint process. Bill 160 added a number of provisions to the act in an attempt to remedy this concern. The new Section 50.1 designates the Office of the Worker Adviser as a body to provide support services to non-union workers in respect of a reprisal complaint. The Office of the Employer Adviser is designated as a body to provide support services to employers with fewer than 100 workers (or another threshold that may be prescribed), who are responding to a reprisal allegation.
Most importantly, a new and additional mechanism for commencing a reprisal complaint has been created. Under the Bill 160 amendments, a ministry inspector can refer a matter of an alleged reprisal directly to the Ontario Labour Relations Board. The board's rules requiring a response to a complaint will be triggered on such a referral. However, before a matter can be referred directly to the board, a number of conditions must be met:
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The involved worker must consent to the referral;
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A policy respecting reprisal referrals must be established by the board and the ministry; and
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The alleged reprisal cannot already have been the subject of a complaint to the board or have been arbitrated under a collective agreement.
Policies are being developed. The board's expectation is likely to be that a referral from a ministry inspector contain all information currently required in a reprisal complaint filed by a worker.
Under the Bill 160 amendments, it appears that, as before, ministry inspectors will have virtually no role or function in the determination of the referred reprisal complaint. The inspector is not a competent or compellable witness in the proceeding, meaning that the inspector cannot testify. Although the ministry inspector may have a role in referring a complaint, it still appears that the worker is responsible for representing himself or herself or obtaining advice and assistance from the Office of the Worker Adviser. Employers should take note of the changes involving reprisal complaints for several reasons. First, the reverse onus, requiring the employer to prove that a reprisal did not occur, will continue. Second, under the Bill 160 amendments, the decision of a ministry inspector to refer a complaint cannot be appealed; thus, once the referral is made, the employer will have to respond to the allegations without the ability to challenge the inspector's decision to make the referral. These Bill 160 provisions have been passed, but not yet proclaimed in force. This is another set of amendments that do not automatically come into force and will not be operative until proclaimed.
Bill 160 amended the Occupational Health and Safety Act provisions relating to codes of practice to facilitate their development. Section 32 of the act provides that the minister may approve a code of practice and the approved code can be followed to comply with the legal requirement. Further, Bill 160 amended the act to provide that failure to follow an approved code of practice is not, in itself, a violation of the legal requirement for which the code was approved. Codes of practice have been widespread in jurisdictions beyond Ontario and provisions already existed in the act for the development of such codes. Presumably, the intent of this change is to encourage greater use of more prescriptive codes of practice to guide employers and constructors in meeting the general performance-based standards in the regulations. These provisions were passed in June 2011. There is still no word from the Ontario Ministry of Labour on planned codes of practice.
Omissions from the Bill 160 amendments
While much was said about creating greater protection for categories of worker identified as vulnerable, including workers in the farming, construction and temporary staffing industries, Bill 160 did not further those protections. Specific steps recommended in the Dean Panel report (eg, new occupational health and safety posters explaining rights and responsibilities of workplace parties, how to contact a ministry inspector and the specifics of more frequent proactive inspections, and enforcement campaigns at workplaces in sectors where vulnerable workers are concentrated) did not appear in the bill. These recommended steps still await guidance from the ministry and its policies on administering and enforcing the Occupational Health and Safety Act.
Similarly, the Dean Panel also made numerous specific recommendations for tackling the underground economy in the construction industry. Its recommendations included electronic registrations of subcontractors at construction projects, posting of notices of project and proactive inspections by ministry inspectors on evenings and weekends. Any developments in this regard will also await ministry changes to administration and enforcement of the act – although the ministry is preparing to conduct enforcement activities regularly outside normal working hours.
Bill 160 confirmed the Ontario government's commitment to implementing the Dean Panel recommendations. The amendments generally focused on establishing the institutions of the new health and safety regime, permitting the setting of prescribed training standards and addressing reprisal complaints. Employers should anticipate further, more significant changes as the Prevention Council and chief prevention officer roles become operative, once enforcement strategy is created and once any supporting regulations are created.
For further information on this topic please contact Cheryl A Edwards, Jeremy Warning or Samantha Seabrook at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email ([email protected], [email protected] or [email protected]).
