Bill 160
Chief prevention officer
Prevention Council
Reprisals
Training for health and safety representatives
Committee co-chair may make recommendations
Minister of labour given new powers and duties
Comment
The passage of Bill 160 on May 18 2011 paves the way for a transformation of the structure and institutions governing and enforcing occupational health and safety (OHS), and of the bodies providing information, assistance and training on OHS to workplace parties in Ontario. Bill 160, which amends the Ontario Occupational Health and Safety Act and the Workplace Safety and Insurance Act, will come into force on a date to be determined shortly.
Much of this bill creates change derived from recommendations made by the Dean Panel. The Dean Panel was constituted to advise the Ontario government on creating changes to improve Ontario's OHS system further. The passage of Bill 160 means that a number of those recommendations will now have been implemented. Many further changes are also expected, based on the Dean Panel's recommendations, as the Ministry of Labour takes on new prevention, education and public promotion responsibilities, and a new chief prevention officer and Prevention Council begin to fulfil the mandate set out in the bill.
In the short term, it is expected that most of the changes experienced by employers will arise from changes in Ministry of Labour inspection and enforcement strategies encouraged by the Dean Panel. Keeping in mind that a construction sector tragedy was a key factor in the establishment of the Dean Panel, new enforcement strategies targeting key issues for the construction sector and other sectors in which the panel specifically identified that vulnerable workers are employed (eg, temporary staffing agencies, young workers, seasonal workers and hospitality workers) can be expected. It is hoped that incentive programmes encouraging and supporting employers with strong safety programmes will also follow. Employers can expect the addition of compulsory training for new workers and supervisors, and the need to evaluate existing training programmes once training standards are prescribed by the chief prevention officer. Further, in the short term, employers may experience an increase in recommendations from their joint health and safety committee co-chairs and increased reprisal complaints. Employers should anticipate additional and more significant changes when the chief prevention officer and the Prevention Council are operative, enforcement strategies supported by the council are fully developed and all supporting regulations are created.
The key changes brought about by Bill 160 are as follows.
The minister of labour will appoint a chief prevention officer who will be responsible for developing a written provincial OHS strategy that sets out specific goals and key performance indicators for measuring achievement of the goals. The chief prevention officer is also given a number of other specific responsibilities and powers under the Occupational Health and Safety Act amendments, including:
- establishing standards for training programmes required under the Occupational Health and Safety Act and regulations, and collecting and maintaining information on individual worker training. For now, this training will include standards for joint health and safety committee certification training and new health and safety representative training. Further prescribed training, as outlined by the Dean Panel, is expected;
- approving training providers for certification training and OHS training in Ontario generally;
- preparing an annual report on OHS for the minister of labour that measures achievements in OHS; and
- advising the minister on the funding and delivery of services for prevention of workplace injuries and occupational diseases. A mechanism for proposing significant changes to the delivery system is set out in the amendments.
Many of these changes shift the prevention functions previously exercised by the Workplace Safety and Insurance Board to the Ontario Ministry of Labour, and the chief prevention officer can delegate some of these roles to employees of the ministry. Corresponding amendments to the Workplace Safety and Insurance Act removing most prevention functions, including the functions associated with training and certification of joint health and safety committee members, were passed in Bill 160.
The role of the Prevention Council will be advisory in nature. It will have a chair and its main focus will be to advise the minister and the chief prevention officer on the prevention of work-related injuries and occupational diseases in Ontario. The council is authorised to advise on:
- the prevention of workplace injuries and occupational diseases;
- the provincial OHS strategy and annual report to the minister;
- any significant changes to the funding and delivery of services for the prevention of workplace injuries and occupational diseases;
- appointment of the chief prevention officer by the minister; and
- any other matter specified by the minister.
The composition of the Prevention Council changed significantly between the introduction of Bill 160 and its passage, carving out a more significant role for representatives of organised labour. The council will be composed of representatives from each of the following workplace groups:
- trade unions and provincial labour organisations;
- employers; and
- non-unionised workers, the Workplace Safety and Insurance Board and persons with OHS expertise.
The council must include an equal number of members from the trade union and employer groups, while the third group may not comprise more than one-third of the council members.
With these council appointment guidelines, organised labour can be expected to take a more significant role in shaping the future of Ontario's OHS system.
A significant change was made to the means by which a worker may enforce the prohibition against workplace reprisals for seeking to enforce the Occupational Health and Safety Act or a right under the act, found in Section 50 of the act. Now, a Ministry of Labour inspector has the authority to refer a reprisal complaint of a worker (as long as the worker has not already filed a complaint or had the matter determined thorough arbitration under a collective agreement) directly to the Ontario Labour Relations Board. Inspectors must obtain the consent of the worker before referring reprisal complaints to the board. This then triggers the reverse onus being placed on an employer or person alleged to have committed a reprisal, to show that the reason for the actions constituting alleged reprisal were not due to the worker attempting to enforce the act or a safety right.
Training for health and safety representatives
Employers and constructors will now be required to ensure training of health and safety representatives. New Section 8(5.1) requires that those parties 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 training shall meet requirements that are still to be prescribed by regulation. Safety representatives shall be paid for time spent in receiving this training, in the same manner as joint health and safety committee members are to be paid for time spent in becoming certified.
Committee co-chair may make recommendations
An amendment to Section 9 of the Occupational Health and Safety Act will permit a single co-chair of a joint health and safety committee to submit written recommendations directly to the employer or constructor, triggering the obligation for the employer or constructor to respond in writing within 21 days. Previously, the power to make recommendations was given to the committee as a whole. Under the Occupational Health and Safety Act amendments, a new Section 9(19.1) provides that where the committee has failed to reach a consensus on a recommendation, after a good-faith effort to do so, either the employer or worker co-chair can make the recommendation to the employer or constructor. Employers and constructors will have the same obligation to respond in writing to a recommendation from a single co-chair as they would to a recommendation from the committee as a whole.
As passed, the legislation does not require the single co-chair recommendation to include the opposing positions of the committee members and how the committee attempted to reach consensus. This requirement was contained in the initial draft of Bill 160.
Minister of labour given new powers and duties
Under the amendments, the minister of labour is now granted the following powers and duties in the administration of the Occupational Health and Safety Act, to assist in clarifying some of the roles anticipated under the Dean Panel recommendations:
- to promote OHS and to promote the prevention of workplace injuries and occupational diseases;
- to promote public awareness of occupational health and safety;
- to educate employers, workers and other persons about OHS;
- to foster a commitment to OHS among employers, workers and others; and
- to make grants, in such amounts and on such terms as the minister considers advisable, to support OHS.
These amendments and the future policy and regulatory changes that are anticipated to follow shortly will have a significant impact on the regulation and enforcement of OHS by the Ministry of Labour and the implementation of OHS in Ontario workplaces.
For further information on this topic please contact Cheryl A Edwards or Jeremy Warning at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email ([email protected] or [email protected]).