Public Commons

• Initial research into the 2011 proposed changes to the Occupational Health and Safety Act.

Part of OHSA Proliferating regulations

Subject: Bill 160 – Amendments to the Occupational Health and Safety Act and Workplace Safety and Insurance Act Sources:

The full text of the bill to make the amendments is at http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=2463&detailPage=bills_detail_the_bill&Intranet=

Background information about the bill is found on Ontario legislative assemby website: http://www.labour.gov.on.ca/english/hs/eap/report/index.php

This is a summary of the Bill which has been changed by The Social Policy Committee and is currently ordered for third reading (if the Bill is approved by a majority of the legislative representatives, it will become law).

To read about how laws are made, see the Legislative Assembly of Ontario see http://www.ontla.on.ca/web/go2.jsp?Page=/bills/bills_main&menuItem=bills_header&locale=en

In April 2011, CELOS wrote a letter to April 15, 2011 to the Standing Committee on Social Policy, Chair to raise concerns with the on-the-ground effects of the proposed changes. Submission on Bill 160-2.

The Ministry of Labour website has a copy of the report by the "expert panel" whose findings led to the proposed Bill. http://www.labour.gov.on.ca/english/hs/eap/report/index.php

A sample of the criticisms of the bill during the second reading of the bill in the Ontario legislature can be found at:

http://www.ontla.on.ca/web/house-proceedings/house_detail.do?locale=en&Date=2011-03-09&detailPage=%2Fhouse-proceedings%2Ftranscripts%2Ffiles_html%2F09-MAR-2011_L092.htm&Parl=39&Sess=2#PARA27

The expert panel was named after Peter Fonseca, the Minister of Labour called for "a comprehensive review of Ontario’s occupational health and safety system". Fonseca called for the review in the wake of the 4 people who died and one person seriously injured when a high-rise swing stage fell in 2010.

In the Executive summary, the chair of the panel, Tony Dean, described the context in which the review was done: [note: all of the bolding below has been added]

"Over the last five years, Ontario annual workplace fatalities have ranged from a low of 73 to a high of 101, with thousands more seriously injured. This review was preceded by the tragic collapse of a high-rise swing stage that resulted in four deaths and serious injuries to a fifth worker. Workplace fatalities have continued to occur throughout the course of this review, including some in confined spaces such as storage silos. All of these incidents arose in the course of activities that are known to involve a high degree of risk. [bold added] The overall vision of Ontario’s OHS system is the elimination of workplace fatalities. The Panel believes that its recommendations represent an opportunity for the system to take the next step toward achieving the worthy goal of zero workplace injuries and illness.

At the same time, the Panel’s consultations revealed a broad recognition of today’s economic environment. Canada’s economy is improving, but that improvement is tenuous and operates in an increasingly competitive global context. Any further regulatory requirements should be focused on filling significant gaps and tackling demonstrated risks. It should also be cost effective and be well supported by the health and safety delivery organizations. [bold added]

The Panel noted that upwards of $220 million, funded by employers’ insurance premiums, is currently being spent on the delivery of health and safety services in Ontario. While greater investments would further improve prevention or enforcement, or both, the Panel believes that our recommendations can be fully funded within the current spending allocation. [bold added]

Here are other excerpts from the executive summary:

There is a strong commitment to the Internal Responsibility System (IRS) that Dr. James Ham described when developing Ontario’s first Occupational Health and Safety Act in the 1970s. Ham emphasized that, together with government as standard setter and enforcement services provider, the workplace parties — CEOs, unions, employers, workers and supervisors — play a significant role in promoting workplace health and safety. He emphasized that the role of each of these parties is proportional to the degree of control they exercise in the workplace. Ham also established three fundamental requirements of the IRS: the right of workers to know about workplace hazards, to participate in health and safety matters in the workplace, and to refuse work they consider to be unsafe.

It is also important that the delivery system is efficient, aligned and responsive to the realities of workplaces and in particular, to running and working in a small business. In general, system resources should be focused on high-risk work and areas of conscious non-compliance. Where risk is low and employers would benefit from support, there should be an emphasis on supporting compliance, with enforcement coming into play only where necessary. "

The panel recommends more education:

"The report recommends a more intensive focus on workplace health and safety in high schools, with foundational knowledge being a precondition for graduation. This upstream approach should also be reflected in colleges and universities, trade schools and apprenticeships, and in the curricula of engineering and business schools. The Panel recommends that, before starting work, all workers receive a brief primer on their rights and responsibilities in the area of health and safety. A similar recommendation is made with respect to supervisors."

The panel concludes that a more focused bureaucracy within the Ministry of Labour is the way to achieve its goals:

"In response to numerous persuasive and compelling submissions, the Panel has concluded that the provincial prevention mandate should be realigned. It recommends that all prevention activities be more closely integrated, that roles be clearly defined and that there be stronger lines of accountability to a single and accountable Chief Executive responsible for prevention. The Chief Executive would head a prevention organization under the auspices of the Ministry of Labour, and would report directly to the Minister. This executive would work with the Deputy Minister of Labour and a competency-based multi-stakeholder Prevention Council to develop and execute an integrated occupational health and safety strategy for the province. The Chief Executive in concert with the Council would be required to submit an annual report to the Minister of Labour on the performance of the integrated OHS system. The responsibilities of the Executive and the Council would be set out in the Occupational Health and Safety Act. The six Health and Safety Associations would continue to operate outside of the ministry structure, but would report to the proposed Chief Executive."...

The chair of the panel, Tony Dean, wrote to the Minister about the intent of the panel's recommendations:

"If this report is fully implemented, every Ontario worker and supervisor will receive mandatory information about workplace rights and responsibilities before they start their job; every construction worker will receive entry-level training on construction site safety; there will be rigorous training standards for workers who work at heights and on other high risk activities there will be tougher penalties for those who place workers at risk of death or serious injury; employers will receive better support in understanding and meeting health and safety standards and greater recognition where these are exceeded; the needs and realities of operating small businesses will be accommodated in labour policies; there will be a renewed prevention organization with focused leadership heading a more integrated, efficient and accountable system; [bold added] and there will be more information and better protection available for vulnerable workers. More open and transparent consultation with the workplace parties [bold added] coupled with these and other recommendations in this report will assist you in promoting safer and healthier workplaces."

Dean specifies how some of these changes are to be brought about:

"Better methods of gathering and sharing information so that everyone involved in health and safety can better track the performance of workplaces and sectors and better identify current and emerging risk factors such as those in the underground economy. An important first step would be the development of a broadly accepted set of performance metrics.

Providing recognition and incentives for high-performing employers and sharing best practices with other workplaces to bring them up to an appropriate level of health and safety. There is a particular focus on the characteristics and needs of smaller employers.

Increasing the involvement of the workplace parties in making decisions about OHS system priorities, and earlier involvement in other decisions that affect them, such as the development of regulations. ...

Ensuring better accountability for spending and results. This will result in better performance measurement and transparent reporting on progress in priority areas."

Some of the criticisms of the bill during the second reading:

http://www.ontla.on.ca/web/house-proceedings/house_detail.do?locale=en&Date=2011-03-09&detailPage=%2Fhouse-proceedings%2Ftranscripts%2Ffiles_html%2F09-MAR-2011_L092.htm&Parl=39&Sess=2#PARA27

- concerns by conservative and NDP MLA's that the legislation transfers powers from existing Health and Safety organizations across Ontario to a provincial body with appointed members - concerns that costs of legislation - education, etc. will be borne by small businesses

CELOS' Concerns about the legislation:

- it vastly expands the powers of the Minister (very similar to open-ended powers in Health Promotion and Prevention Act)

Powers of Minister (2) In administering this Act, the Minister’s powers and duties include the following: 1. To promote public awareness of occupational health and safety. 2. To educate employers, workers and other persons about occupational health and safety. 3. To foster a commitment to occupational health and safety among employers, workers and others. 4. To make grants, in such amounts and on such terms as the Minister considers advisable, to support occupational health and safety.

- it delegates powers to Directors - the bureaucracy, and permits them to make policies which must be followed by inspectors

3. Section 6 of the Act is amended by adding the following subsections: Policies (3) A Director may establish written policies respecting the interpretation, administration and enforcement of this Act. Same (4) An inspector shall follow any policies established by a Director under subsection (3).

- it provides for endless training and certification of certain training "providers"

4. The Act is amended by adding the following sections: Standards – training programs 7.1 (1) The Minister may establish standards for training programs required under this Act or the regulations. Approval – training programs (2) The Minister may approve a training program if it meets the standards established under subsection (1). Standards ¬¬¬– persons who provide training 7.2 (1) The Minister may establish standards that a person shall meet in order to become an approved training provider. Approval – persons who provide training (2) The Minister may approve a person who meets the standards described in subsection (1) as a training provider with respect to one or more approved training programs. Amendment of standard 7.3 (1) The Minister may amend a standard established under subsection 7.1 (1) or 7.2 (1). Publication of standards (2) The Minister shall publish the standards established under subsections 7.1 (1) and 7.2 (1) promptly after establishing or amending them. Time limit of approval 7.4 (1) An approval given under subsection 7.1 (2) or 7.2 (2) is valid for the period that the Minister specifies in the approval. Revocation, etc., of approval (2) The Minister may revoke or amend an approval given under subsection 7.1 (2) or 7.2 (2).

- H&S reps must be trained(with pay)

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. Same (5.2) The training described in subsection (5.1) shall meet such requirements as may be prescribed. Entitlement to be paid (5.3) A health and safety representative is deemed to be at work while he or she is receiving the training described in subsection (5.1), and the representative’s employer shall pay the representative for the time spent, at the representative’s regular or premium rate as may be proper.

- it creates a whole new bureaucracy - a "prevention council" of workers,employers, other health and safety "experts", who will advise the "chief prevention officer", whose job it is to come up with a "strategy", annual reports and advice to the Minister of Labour

8. (1) The Act is amended by adding the following Part: Part II.1 Prevention Council, Chief Prevention Officer and designated entities Prevention Council Prevention Council 22.2 (1) The Minister shall establish a council to be known as the Prevention Council in English and Conseil de la prévention in French. Composition (2) The Council shall be composed of such members as the Minister may appoint, and shall include representatives from the following groups: 1. Workers. 2. Employers. 3. Other persons with occupational health and safety expertise. Appointment of members (3) The members of the Council shall be appointed for such term as may be determined by the Minister. Chair (4) The members of the Council shall choose a chair from among themselves by the date fixed by the Minister; if they fail to do so, the Minister shall designate a member as chair. Same (5) Subsection (4) applies on the first appointment of members and thereafter whenever the office of chair is vacant. Functions (6) The Council shall, (a) provide advice to the Minister on the appointment of a Chief Prevention Officer; (b) provide advice to the Chief Prevention Officer, (i) on the prevention of workplace injuries and occupational diseases, (ii) for the purposes of the provincial occupational health and safety strategy and the annual report under section 22.3, and (iii) on any significant proposed changes to the funding and delivery of services for the prevention of workplace injuries and occupational diseases; (c) provide advice on any other matter specified by the Minister; and (d) perform such other functions as may be specified by the Minister. Advice (7) For the purposes of subsection (6), any advice provided by the Council shall be communicated by the chair of the Council. Remuneration and expenses (8) Any member of the Council who is not a public servant within the meaning of the Public Service of Ontario Act, 2006 may be paid such remuneration and expenses as may be from time to time fixed by the Lieutenant Governor in Council. Chief Prevention Officer Chief Prevention Officer Functions 22.3 (1) The Minister shall appoint a Chief Prevention Officer to, (a) develop a provincial occupational health and safety strategy; (b) prepare an annual report on occupational health and safety; (c) exercise any power or duty delegated to him or her by the Minister under this Act; (d) provide advice to the Minister on the prevention of workplace injuries and occupational diseases; and (e) provide advice to the Minister on any proposed changes to the funding and delivery of services for the prevention of workplace injuries and occupational diseases. Changes, funding and delivery of services (2) The following rules apply to advice under clause (1) (e): 1. If the Chief Prevention Officer is considering providing advice about a proposed change to the funding and delivery of services for the prevention of workplace injuries and occupational diseases, the Chief Prevention Officer shall determine whether the proposed change is significant. 2. If the Chief Prevention Officer determines that the proposed change is significant, he or she shall, i. ask the chair of the Prevention Council to state whether the Council endorses the proposed change, and ii. include that statement in the advice to the Minister. Appointment (3) The Chief Prevention Officer may be appointed for a term not exceeding five years and may be reappointed for successive terms not exceeding five years each. Occupational health and safety strategy (4) The Chief Prevention Officer shall develop a written provincial occupational health and safety strategy that includes, (a) a statement of occupational health and safety goals; (b) key performance indicators for measuring the achievement of the goals; and (c) any other matter specified by the Minister. Advice of Prevention Council (5) The Chief Prevention Officer shall consult with the Prevention Council and shall consider its advice in developing the strategy. Strategy provided to Minister (6) The Chief Prevention Officer shall provide the strategy to the Minister on or before a day specified by the Minister. Minister’s approval (7) The Minister may approve the strategy or refer it back to the Chief Prevention Officer for further consideration. Publication (8) After approving the strategy, the Minister shall publish it promptly. Annual report (9) The Chief Prevention Officer shall provide an annual written report to the Minister on occupational health and safety that includes a measurement of the achievement of the goals established in the strategy, and that contains such other information as the Minister may require. Advice of Prevention Council (10) The Chief Prevention Officer shall consult with the Prevention Council and shall consider its advice in developing the report. Report provided to Minister (11) The Chief Prevention Officer shall provide the annual report to the Minister on or before a day specified by the Minister. Publication (12) The Minister shall publish the Chief Prevention Officer’s report promptly.

- it provides for still more designations of: "safe workplace associations", according to more standards set by the Ministry

2) Part II.1 of the Act, as enacted by subsection (1), is amended by adding the following sections: Designated Entities Designation by Minister 22.4 (1) The Minister may designate an entity as a safe workplace association or as a medical clinic or training centre specializing in occupational health and safety matters if the entity meets the standards established by the Minister. Standards (2) The Minister may establish standards that an entity shall meet before it is eligible to be designated. Same

- once designated, the association can apply for Ministry grants - it becomes a further "arm" of the government, subject to its requirements

- Effect of designation Grants 22.5 (1) A designated entity is eligible for a grant from the Ministry.

Monitoring (2) The Minister shall monitor the operation of designated entities, may require a designated entity to provide such information, records or accounts as he or she specifies, and may make such inquiries and examinations as he or she considers necessary. Directions (3) The Minister may direct a designated entity to take such actions as the Minister considers appropriate. Government directives (4) In addition to the directions the Minister may issue under subsection (3), the Minister may direct an entity to comply with such government directives as the Minister specifies. Failure to comply (5) If an entity does not operate in accordance with the standards established under section 22.4 and with any other requirements imposed on it under this section, the Minister may, (a) reduce or suspend grants to the entity while the non-compliance continues; (b) assume control of the entity and responsibility for its affairs and operations; (c) revoke the designation and cease to provide grants to the entity; or (d) take such other steps as he or she considers appropriate. Appointment of administrator 22.6 (1) For the purposes of assuming control of an entity and responsibility for its affairs and operations under clause 22.5 (5) (b), the Minister may appoint an administrator.