Thoughts from a Management Lawyer

Ministry of Labour Releases OHS Supervisor Workbook and Employer Guide

The Occupational Health and Safety Act is built upon the Internal Responsibility System.  Put colloquially, health and safety in the workplace is everyone's business.  

Supervisor have a key role and responsibility under the legislation and the Ontario Ministry of Labour has just released the “Supervisor Health and Safety Awareness in 5 Steps” Workbook and Employer Guide”.  

The Workbook and An Employer Guide to Supervisor Health and Safety Awareness in 5 Steps (the link to the PDF version is inactive at the time of writing) provide some useful resources for employers in meeting their obligations under the Act. 

According to the Ministry of Labour:

Supervisor Health and Safety Awareness in 5 Steps is a component of a suite of products that is being developed by the Ministry of Labour to meet our commitment on mandatory health and safety awareness training in the workplace. The other components include an awareness poster, the Worker Health and Safety Awareness in 4 Steps workbook and employer guide, and e-learning modules.

These are important tools for employers and the Ministry is to be commended for making them available.

Production of Inspectors Notes under OHSA

Just wrote about the Ontario Labour Relations Board's recent decision regarding the production of an Ministry of Labour inspectors notes, photgraphs and certain other documentation in the context of an OHSA appeal.  Have a read.

Ontario Ministry of Labour Announces Safety Blitzes

The Ontario Ministry of Labour announced its 2011-2012 safety blitz schedule.  According to the Ministry website:

The Ministry of Labour’s proactive inspection blitzes on sector-specific hazards are designed to raise awareness and increase compliance with health and safety legislation.

These blitzes are announced in advance and results are reported after they are completed. The ministry tracks each sector to determine if the blitzes result in a long-lasting increase in compliance and decrease in injuries.

The 2008-2009 Results are available as are the 2010 results.

Counting the "regularly employed" under the Ontario OHSA

The Ontario Court of Appeal yesterday released an important decision interpreting the Ontario Occupational Health and Safety Act.  The case, Ontario (Labour) v. United Independent Operators Limited considered whether independent contractors are to be counted when determining whether an employer must establish and maintain a joint health and safety committee under section 9(2)(a) of the Act.  

Section 9(2) provides that:

(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.

The lower court interpreted the words "regularly employed" narrowly such that independent contractors were not "regularly employed" for purposes of section 9(2)(a) of the Act.  The Court of Appeal held that the lower court was in error and that:

In excluding the truck drivers due to the nature of their employment relationship, the words “regularly employed” were interpreted in a narrow fashion, one that is inconsistent with the objectives, purpose and legislative scheme of the OHSA. 

The Court of Appeal relied upon Ontario (Ministry of Labour) v. Hamilton (City):

When interpreting [the OHSA], it is important to bear in mind certain guiding principles.  Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and the objectives of the legislative scheme.  Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided.

When interpreting legislation, the Court observed that it must examine "the language of the provision, the context in which it is used, and the purpose of the legislation".  When looking at these matters, the Court concluded that the truck drivers, despite being independent contractors, "must be counted when determining whether the threshold requirement in s. 9(2)(a) has been met".

This is a significant decision and worth a close read.  It is arguably, at odds with what is commonly thought of as "regularly employed".  This may well not be the last word we hear on this subject.

Poll Suggests that Bullying is Pervasive at Work

In light of the coming into force of Ontario's Bill 168, violence and harassment in the workplace is (or should be) front of mind for employers in this province.  It should be front of mind for employers even without legislation.  

As reported in HR Magazine Bullying remains rife in the workplace.  According to the article a recent poll suggests that "more than one in five of respondents (21%) feel ‘bullied’ by their boss at work and a further 28% feel picked on by a co-worker in the office" 

Bill 168 in Force Today - Are you compliant?

Well, the six-month delay between Royal Assent and the coming into force of Bill 168 (An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters) is over with the legislation coming into force today (June 15, 2010).  The six-months was intended to allow employers to take the steps required to implement the legislation.

The Windsor Star has a piece called The Story Behind Bill 168 while the Law Times writes that Few Ready for Bill 168.  The Canadian Safety Reporter has an interesting video where Ministry of Labour Inspectors discuss some of what they'll be looking for in a workplace audit around Bill 168.

Toxic Bosses and Workplace Bullying

We put on a seminar for clients (and others) last Thursday on Bill 168. It was really well attended so thanks to all those who came out and I hope you found it of value in getting everything buttoned down for June 15, 2010.

I read a really interesting article in the Wall Street Journal Who's afraid of the big, bad boss? that was fascinating in the shadow of Bill 168 and other such Canadian legislation.   According to the article, the New York Bill (which is not law):

New York's anti-bullying bill defines bullying broadly and includes the repeated use of derogatory remarks, insults and epithets, as well as conduct that a "reasonable person" would find threatening, intimidating or humiliating.

Some of the comments and observations in the article were eye-opening. 

I've written before (here, here, here and here) about the office jerk and not dealing with him/her and about the best-titled book I've seen in recent memory -The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't by Bob Sutton whose blog, Work Matters, is just a great read. 

One of the fears expressed at our seminar was "how far the harassment provisions in Bill 168 go?"  Pretty far and while normal performance management, for example, is not captured (even according to the Ministry) harassing behaviour, that comes within the broad definition in the Bill, would, of course, be.

Update:  New York Labour Law Report has a blog on the bullying legislation that would establish a civil cause of action for those subjected to an "abusive work environment.".

Safety Blitz Finds Issues

A 90-day inspection campaign of more than 3,900 Ontario construction sites found fall hazards at 63 per cent of the sites (see the OHS Canada post Safety blitz finds fall hazards at majority of Ontario construction sites.  The Ontario Federation of Labour has called for fines and criminal charges under Bill C-45.  

"Kill a Worker Go to Jail" Campaign

In anticipation of the National Day of Mourning on April 28, the Ontario Federation of Labour has implored greater use of Bill C-45 in addressing workplace fatalities.  

National Day of Mourning - April 28

As I was watching the coverage of the memorial service for the 29 coal miners killed in West Virginia, I thought it fitting to mention that April 28 is the National Day of Mourning commemorating workers whose lives have been lost or injured in the workplace.

In 1990, Parliament passed the Workers Mourning Day Act to formally recognize April 28 as a "day of mourning" across Canada.

There were 1,036 workplace deaths in Canada in 2008.  Another 942,478 were injured or become ill. 

The CLC has issues a statement in which they propose:

"It’s time for the federal government and the provincial and territorial governments to appoint special prosecutors to lay charges under the Criminal Code against employers when their actions cause death or serious injury.  More inspectors must be hired to ensure employers comply with the law. Government regulators must be held accountable for this carnage that seems to go unchecked."

It will be interesting to see whether more charges will flow from Bill C-45 which amended the Criminal Code and became law on March 31, 2004 which provides in part:

"Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."

To date these provisions have been used sparingly.