Emond Harnden -Bill 160 – Ontario takes first step in overhauling occupational health and safety

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The Ontario Minister of Labour (the “Minister”) recently introduced Bill 160, An Act to amend the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997 with respect to occupational health and safety and other matters.  Bill 160 received Royal Assent on June 1st, 2011. Bill 160 implements many of the recommendations submitted by the Expert Advisory Panel on Occupational Health and Safety in its December 2010 report (the “Dean Report”).  The Panel was formed following an accident in 2009 in which four Toronto construction workers were killed when the suspended scaffolding they were working on collapsed.  The Minister charged the Panel with conducting a comprehensive review of Ontario’s occupational health and safety system.  The Dean Report contained 46 suggested changes to how Ontario regulates occupational health and safety.

Bill 160 implements many of these changes and will significantly alter the occupational health and safety system in Ontario.  The amendments include a new authority for the Minister to appoint a Chief Prevention Officer. The Chief Prevention Officer will be responsible for advising the Minister with respect to occupational health and safety, and will establish and approve training standards and providers. Bill 160 also expands the powers of the co-chairs of Joint Health and Safety Committees (“JHSC”) and requires additional training for workplace Health and Safety Representatives.

ESTABLISHMENT OF TRAINING STANDARDS

For employers, the most significant change under Bill 160 may relate to the new standards for health and safety training programs required under the Occupational Health and Safety Act (the “OHSA”).  Bill 160 provides the Chief Prevention Officer (the “CPO”) with the authority to establish standards for OHSA training programs, and to approve training programs that meet those standards.  The CPO is also authorized to establish standards for training providers and to approve providers that meet those standards. 

The authority to establish standards for health and safety training programs enables the CPO to adopt many of the changes recommended in the Dean Report.  These include mandatory safety and awareness training for entry level employees and front line supervisors, as well as mandatory safety training in construction and other high-risk industries.  All such standards will be published and are subject to amendment by the CPO. 

EXPANDED POWERS OF THE JHSC CO-CHAIRS TO MAKE RECOMMENDATIONS

Currently under the OHSA, the JHSC may make recommendations to the employer, or constructor, for the improvement of the safety of workers.  Bill 160 expands this power by giving the JHSC worker co-chair and employer co-chair the ability to make recommendations to the employer, or constructor, even where the committee is deadlocked on the particular recommendation.  This change is important, since the submission of the recommendation, even in the absence of consensus, will trigger the employer’s duty to respond to the recommendation within 21 days.

ADDITIONAL TRAINING FOR HEALTH AND SAFETY REPRESENTATIVES

Under Bill 160, employers are required to ensure that Health and Safety Representatives (“HSRs”) receive the training necessary for them to effectively exercise their powers and perform their duties.  Currently, only one worker member and one employer member of the JHSC are required to be certified by the WSIB.  Bill 160 provides the CPO with the authority to establish training standards for HSRs and to certify those individuals that meet the standards.  Individuals that are currently certified under the Workplace Safety and Insurance Act, 1997 the (“WSIA”) are deemed certified under the amendments.

PREVENTION COUNCIL, CHIEF PREVENTION OFFICER AND DESIGNATED ENTITIES

Bill 160 provides the Minister with the authority to establish a Prevention Council (the “Council”). The function of the Council is to advise the Minister on the appointment of the CPO, and to advise the CPO on matters related to the prevention of workplace injuries; a provincial occupational health and safety strategy; and changes to the funding and delivery of occupational health and safety services.  The Minister will appoint as Council members representatives from the following groups:

1. Trade unions and provincial labour organizations.
2. Employers.
3. Non-unionized workers, the WSIB, and other persons with
    occupational health and safety expertise.

In appointing the members of the Council, the Minister is required to ensure that there is equal representation between the groups described in 1 and 2 above, and that appointees from group 3 do not make up more than one-third of the Council.

The CPO, who will be appointed for up to five years by the Minister (based on the advice of the Council), will work with the Council to develop a provincial occupational health and safety strategy.  The CPO will also be required to prepare an annual report on occupational health and safety, and to advise the Minister on matters related to preventing workplace injuries.  The CPO will also advise the Minister on any proposed changes to the funding and delivery of services for the prevention of workplace injuries and occupational diseases.  The establishment of the Council and the appointment of the CPO essentially shift the responsibility for workplace injury prevention from the WSIB to the Council and the CPO.

Under the Bill 160 amendments, the Minister is also provided with the authority to establish standards that an entity must meet in order to be designated as a safe work association or as a medical clinic or training centre specializing in occupational health and safety.  Such designated entities will be eligible for grants from the Ministry.  Entities already designated under the WSIA would be deemed to be a designated entity under Bill 160.  The CPO is charged with monitoring designated entities and reporting back to the Minister on their compliance with the established standards.

INSPECTORS MAY REFER REPRISAL COMPLAINTS TO Ontario Labour Relations Board

Another significant change relates to the authority of Ministry inspectors to refer reprisal complaints to the Ontario Labour Relations Board (the “OLRB”). Currently under section 50 of the OHSA, employers are prohibited from taking any reprisals against an employee for complying with the OHSA.  Where a worker complains of reprisal, the matter may be dealt with by final and binding arbitration under a collective agreement, if any, or by filing a complaint with the OLRB.  Under the Bill 160 amendments, Ministry inspectors would be able to refer a reprisal complaint to the OLRB, provided that the employee agrees to the referral, and the matter has not been dealt with by final and binding arbitration.  This amendment is accompanied by other procedural changes, such as the ability of the OLRB to expedite proceedings, which are designed to facilitate the filing of reprisal complaints. 

WHEN BILL 160 WILL COME INTO FORCE

The Bill 160 provisions relating to the additional training requirements for HSRs and the authority of Ministry inspectors to refer reprisal complaints to the OLRB, will come into force upon a day to be proclaimed by the Lieutenant Governor. The Bill 160 amendments which relate to the certification of JHSC members; the expanded powers of the JHSC; and the designation of safe workplace associations will come into force on the earlier of April 1, 2012 or a day to be named by the Lieutenant Governor. The balance of Bill 160, including those provisions which relate to the CPO and the Council, came into force on June 1st, 2011.  

In our view

Although Bill 160 contains most of the legislative changes necessary to implement the recommendations in the Dean Report, one exception stands out: the amendments do not include provisions for the application of administrative monetary penalties (“AMPs”) as an enforcement tool where an employer contravenes the OHSA.  The Dean Report recommended AMPs be applied “primarily for willful or repeat offences that immediately place workers at serious risk.”.  It is interesting to note that earlier versions of Bill 160 provided the Minister with the authority to introduce written policies on the interpretation and enforcement of the OHSA.  It was speculated that AMPs may be introduced using this mechanism.  However, this ministerial authority was removed from the most recent iteration of Bill 160, and it appears as though AMPs will not be part of the new health and safety regime ushered in by Bill 160.

For further information, please contact Paul Lalonde at (613) 940-2759.