ENH 121 Unit 7A - OHS Law I 2024 PDF

Environmental Health Law ENH 121 Unit 7A – OHS Law I Daniel Huynh BASc School of Occupational and Public Health Toronto Metropolitan University From slides by Dr. Peter Strahlendorf 2024 Uni...

Environmental Health Law ENH 121 Unit 7A – OHS Law I Daniel Huynh BASc School of Occupational and Public Health Toronto Metropolitan University From slides by Dr. Peter Strahlendorf 2024 Unit 7A OHS Law 1  Unit 7A - Contents 1. Internal Responsibility System (IRS) 2. Occupational Health and Safety Act (OHSA) a. Definitions b. Application c. Administration 3. The Duties (in the OHSA) Unit 7A OHS Law 2 1. Internal Responsibility System (IRS) Unit 7A OHS Law 3  Internal Responsibility System Everyone is personally and directly responsible for health and safety as an intrinsic part of his or her job. Work and OHS are not separate activities. Everyone is doing OHS 100% of the time. What a person does for OHS depends on his or her authority. Unit 7A OHS Law 4  Internal Responsibility System 1. ERS and IRS – it’s not the government’s job to directly make your workplace safe for you. 1. Within the IRS – it’s everyone as an individual – it’s not the Committee’s job or the OHS manager’s job to make your workplace safe for you. Unit 7A OHS Law 5 Internal versus External Unit 7A OHS Law 6  Internal Responsibility System The employer is primarily responsible for OHS. In the legal version of the IRS, the employer has the most duties and the broadest duties. But the employer, usually a corporation, is a legal fiction. It doesn’t have knowledge, it doesn’t make decisions, and it doesn’t work. People do. In the legal version of the IRS, every individual has duties, which depend on the individual’s role/authority. Unit 7A OHS Law 7  Internal Responsibility System It is incorrect to say that the IRS is a partnership between the employer and employees or between labour and management. The IRS is not a two party system. It is a multi-party system. For 30+ years, this is the biggest mistake the government has made about the IRS. Law: “A bipartite policy making process will always describe the IRS as a bipartite concept.” Unit 7A OHS Law 8  IRS as the Core Concept The IRS is the intellectual or philosophical framework that knits together and makes sense of all of our big ideas in OHS. The IRS helps resolve many of our current issues in OHS. Unit 7A OHS Law 9  IRS as the Core Concept 1. It’s a framework for due diligence 2. It animates the OHS Management System 3. It’s 90% of what people call a “Safety Culture” 4. It resolves conflict between a “systems approach” and behaviour-based safety (BBS) 5. It overcomes complacency and plateauing 6. It has evolved to a “Phase Two” – quality and creativity. Unit 7A OHS Law 10  The Internal Responsibility System The philosophy behind the OHSA The IRS is a way of allocating responsibility, authority and accountability for safety that precedes law First named in the 1976 Ham Royal Commission Report Not mentioned directly in OHS legislation, except NS Unit 7A OHS Law 11  Internal Responsibility System 45 years old (in name) Mis-described, misunderstood, under-utilized Confirmed repeatedly: Burkett, Mckenzie-Laskin, MacDonald, Richards enquiries/commissions James Ham got it right in 1976: 1. OHS should be integrated into production; it’s not a separate function. 2. Everyone should be doing OHS directly as part of his or her job. Unit 7A OHS Law 12  The “Frat House” Problem “Everyone shares the responsibility for the health and safety of persons at the workplace.” Is this enough? What’s missing? What is everyone responsible for Unit 7A OHS Law 13  The “Spiderman Principle” “The primary responsibility for creating and maintaining a safe and healthy workplace should be that of each party in the workplace, to the extent of each party's authority and ability to do so.” “With great power comes great responsibility.” Unit 7A OHS Law 14  Responsibility and the Org Chart It’s not just that everyone does OHS. Everyone does OHS in a way that matches their position in the organizational chart. If you understand the scope of a person’s authority and control, then you have a good idea of what their OHS activities should be. Unit 7A OHS Law 15 Basic Structure of the IRS Unit 7A OHS Law 16 Activities Match Authority & Control Unit 7A OHS Law 17  The Burkett Report 1981 Joint Federal-Provincial Inquiry Commission into Safety in Mines and Mining Plants in Ontario, Towards Safe Production, 2 vols. (Toronto, 1981). (Chair Kevin M. Burkett) [Burkett Report]. Unit 7A OHS Law 18  The Burkett Report 1981 “Direct responsibility for safe production extends to those who are directly responsible for the organization of work, the design of work practices and the manner in which, and the conditions under which, work is performed. Direct responsibility falls to worker, supervisor, management and executive; the line organization. “ Unit 7A OHS Law 19  The Burkett Report 1981 “Contributive responsibility extends to those who, although not directly responsible for the performance of work, are in a position to contribute to safe production through consultation, advice, audit, inspection, etc. Contributive responsibility falls to health and safety committees, safety departments, unions, the Mines Accident Prevention Association of Ontario and the Mining Health and Safety Branch.” consult, audit, revise and inspect OHS to refine it. Unit 7A OHS Law 20 Direct versus Contributive Unit 7A OHS Law 21  The Burkett Report 1981 “The Ham Report leaves no doubt that the centre of authority with respect to all matters relating to the performance of work rests within the direct internal responsibility system comprised of worker, supervisor, management, and executive. Health and safety committees, safety departments, local unions etc., are not seen as assuming decision-making authority with respect to the performance of work. Rather they are viewed as a means of improving the quality and sensitivity of the decisions emanating from within the direct responsibility system. “ Unit 7A OHS Law 22  The Burkett Report 1981 “The role of government is one of defining what minimum safety performance is acceptable and promoting compliance with the requirements established. Legislation is the basic instrument for carrying out this role.” Unit 7A OHS Law 23 Wrong IRS Description: Set of three rights only “IRS is a set of three rights: 1. To know about hazards 2. To refuse unsafe work 3. To participate (through committee)” Missing the main element – personal duties of everyone Unit 7A OHS Law 24  The IRS as Rights vs as Duties with ancillary rights Unit 7A OHS Law 25  Wrong IRS Description: IRS as Labour Relations “Labour and management co-manage OHS through the Committee. The Committee IS the IRS.” The “labour relations” version of the IRS. Missing personal contribution of individuals. Unit 7A OHS Law 26  Correct Description: The IRS is … An element of the OHS management system Something you already have Individualistic About the personal responsibility of each individual Is primarily about duties Is monitored and supported by the committee Is connected to due diligence (tells us who must be duly diligent) If it works well will ensure regulatory compliance Unit 7A OHS Law 27 The IRS as Personal Duties Unit 7A OHS Law 28 Direct Causes of Losses Unit 7A OHS Law 29 Root Causes of Losses Unit 7A OHS Law 30  Power of the IRS It is the only philosophy that captures the knowledge, experience, skill, insight, observational position, initiative, creativity and enthusiasm of every human mind in the workplace. It is the ultimate expression of respect for the human element in the workplace. It is about Values like: life and health, openness, personal responsibility, objective problem-solving Unit 7A OHS Law 31  Power of the IRS The IRS is the “people framework” around which the management system is built. An OHS management system without the IRS is lifeless. Programs and techniques are built on top of and around the IRS. A weak IRS will sabotage any other OHS initiative. RESULT: A successful IRS will result in risk being continually driven down so that there will be progressively longer intervals between accidents or work-related illnesses. Unit 7A OHS Law 32  The IRS – Activities at Each Level The IRS is based on an integration of OHS into every individual’s job at every level of the hierarchy. Examples... Unit 7A OHS Law 33  For Front-line Workers Following regulatory procedures Following employer's procedures Following supervisor's procedures Identifying defects, contraventions and dangers Identifying opportunities for improvement Applying discretion to solve OHS problems Reporting unsolvable problems and opportunities for improvement Unit 7A OHS Law 34  For Front-line Supervisors Coaching and training Job observation Job Planning Safety talks and tailboard conferences Enforcement of rules and regulations Discipline Taking problems and opportunities to senior management Unit 7A OHS Law 35  For Managers OHS Performance evaluation Holding others accountable Implementing programs Considering system wide problems Taking problems and opportunities to more senior management Unit 7A OHS Law 36  For Senior People Policy Competent Professionals Sufficient Resource Allocation Leadership Holding Subordinates Accountable Ensuring the development of an OHS System Ensuring Periodic "System Audits" Unit 7A OHS Law 37 The IRS is a "Dynamic Machine" Unit 7A OHS Law 38 The IRS is a "Dynamic Machine" The IRS is dynamic, not just a static list of responsibilities. Most OHS problems are dealt with on an on-going basis while doing the operative work. When an operative worker sees a problem beyond his or her authority or skill, it is tossed as a "hot potato" to the supervisor - duty to report upwards. Unit 7A OHS Law 39 Reporting and Responding Unit 7A OHS Law 40  Nova Scotia Legislation 2 The foundation of this Act is the Internal Responsibility System which (a) is based on the principle that (i) employers, contractors, constructors, employees and self-employed persons at a workplace, and (ii) the owner of a workplace, a supplier of goods or provider of an occupational health or safety service to a workplace or an architect or professional engineer, all of whom can affect the health and safety of persons at the workplace, share the responsibility for the health and safety of persons at the workplace; Unit 7A OHS Law 41  NS Definition Continued … (b) assumes that the primary responsibility for creating and maintaining a safe and healthy workplace should be that of each of these parties, to the extent of each party's authority and ability to do so; (c) includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for the parties to carry out their responsibilities pursuant to this Act and the regulations; and Unit 7A OHS Law 42  NS Definition Continued … (d) is supplemented by the role of the Occupational health and Safety Division of the Department of Labour, which is not to assume responsibility for creating and maintaining safe and healthy workplaces, but to establish and clarify the responsibilities of the parties under the law, and to support them in carrying out their responsibilities and to intervene appropriately when those responsibilities are not carried out. Unit 7A OHS Law 43 2. Occupational Health and Safety Act R.S.O. 1990, CHAPTER O.1 Last amendment: 2023, c. 9, Sched. 29, s.14. Downloaded: September 2023 Unit 7A OHS Law 44 Unit 7A OHS Law 45  Regulations Possible Under the Ontario OHSA 70 (1) The Lieutenant Governor in Council may make such regulations as are advisable for the health or safety of persons in or about a workplace. (2) Without limiting the generality of subsection (1), the Lieutenant Governor in Council may make regulations, 1. defining any word or expression used in this Act or the regulations that is not defined in this Act; Unit 7A OHS Law 46  Sectoral Regulations Construction Projects: O. Reg. 213/91. Last amendment: 64/18. Industrial Establishments: R.R.O. 1990, Reg. 851. Last amendment: 456/18. Mines and Mining Plants: R.R.O. 1990, Reg. 854. Last amendment: 61/18. Unit 7A OHS Law 47  Designated Substances Acrylonitrile Arsenic Asbestos Asbestos on Construction Projects and in Buildings and Repair Operations Benzene Coke Oven Emissions Ethylene Oxide Isocyanates Lead Mercury Silica Vinyl Chloride Unit 7A OHS Law 48  Ontario OHSA Definitions Unit 7A OHS Law 49  OHSA Definitions 1 (1) In this Act, Board means the Ontario Labour Relations Board; certified member means a committee member who is certified under section 7.6; committee means a joint health and safety committee continued under this Act; Chief Prevention Officer means the Chief Prevention Officer appointed under subsection 22.3 Unit 7A OHS Law 50  OHSA Definitions competent person means a person who, (a) is qualified because of knowledge, training and experience to organize the work and its performance, (b) is familiar with the provisions of this Act and the regulations that apply to the work, and (c) has knowledge of any potential or actual danger to health or safety in the workplace; Unit 7A OHS Law 51  OHSA Definitions construction includes erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, and any work or undertaking in connection with a project but does not include any work or undertaking underground in a mine; Unit 7A OHS Law 52  OHSA Definitions project means a construction project, whether public or private, including, (a) the construction of a building, bridge, structure, industrial establishment, mining plant, shaft, tunnel, caisson, trench, excavation, highway, railway, street, runway, parking lot, cofferdam, conduit, sewer, watermain, service connection, telegraph, telephone or electrical cable, pipe line, duct or well, or any combination thereof, (b) the moving of a building or structure, and (c) any work or undertaking, or any lands or appurtenances used in connection with construction; Unit 7A OHS Law 53  OHSA Definitions Construction project = a verb from construction and a noun from project. Then the Construction Reg applies. Unit 7A OHS Law 54  OHSA Definitions constructor means a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer; Deputy Minister means the Deputy Minister of Labour; designated substance means a biological, chemical or physical agent or combination thereof prescribed as a designated substance to which the exposure of a worker is prohibited, regulated, restricted, limited or controlled; Unit 7A OHS Law 55  OHSA Definitions Director means an inspector under this Act who is appointed as a Director for the purposes of this Act; employer means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or sub-contractor to perform work or supply services; Unit 7A OHS Law 56  OHSA Definitions factory means, (a) a building or place other than a mine, mining plant or place where homework is carried on, where, (i) any manufacturing process or assembling in connection with the manufacturing of any goods or products is carried on, (ii) in preparing, inspecting, manufacturing, finishing, repairing, warehousing, cleaning or adapting for hire or sale any substance, article or thing, energy is, (A) used to work any machinery or device, or (B) modified in any manner, Unit 7A OHS Law 57  OHSA Definitions (iii) any work is performed by way of trade or for the purposes of gain in or incidental to the making of any goods, substance, article or thing or part thereof, (iv) any work is performed by way of trade or for the purposes of gain in or incidental to the altering, demolishing, repairing, maintaining, ornamenting, finishing, storing, cleaning, washing or adapting for sale of any goods, substance, article or thing, or (v) aircraft, locomotives or vehicles used for private or public transport are maintained, Unit 7A OHS Law 58  OHSA Definitions (b) a laundry including a laundry operated in conjunction with, (i) a public or private hospital, (ii) a hotel, or (iii) a public or private institution for religious, charitable or educational purposes, and (c) a logging operation; Unit 7A OHS Law 59  OHSA Definitions hazardous material means a biological or chemical agent named or described in the regulations as a hazardous material; hazardous physical agent means a physical agent named or described in the regulations as a hazardous physical agent; health and safety representative means a health and safety representative selected under this Act; Unit 7A OHS Law 60  OHSA Definitions homework means the doing of any work in the manufacture, preparation, improvement, repair, alteration, assembly or completion of any article or thing or any part thereof by a person for wages in premises occupied primarily as living accommodation; industrial establishment means an office building, factory, arena, shop or office, and any land, buildings and structures appertaining thereto; [and therefore the Industrial Reg applies] Unit 7A OHS Law 61  OHSA Definitions inspector means an inspector appointed for the purposes of this Act and includes a Director; labour relations officer means a labour relations officer appointed under the Labour Relations Act, 1995; “licensee” means a person who holds a licence under Part III of the Crown Forest Sustainability Act, 1994; Unit 7A OHS Law 62  OHSA Definitions logging means the operation of felling or trimming trees for commercial or industrial purposes and includes the measuring, storing, transporting or floating of logs, the maintenance of haul roads, scarification, the carrying out of planned burns and the practice of silviculture; [Logging into “factory” and then into “industrial establishment”] Unit 7A OHS Law 63  OHSA Definitions mine means any work or undertaking for the purpose of opening up, proving, removing or extracting any metallic or non-metallic mineral or mineral-bearing substance, rock, earth, clay, sand or gravel; mining plant means any roasting or smelting furnace, concentrator, mill or place used for or in connection with washing, crushing, grinding, sifting, reducing, leaching, roasting, smelting, refining, treating or research on any substance mentioned in the definition of "mine"; Unit 7A OHS Law 64  OHSA Definitions Minister means the Minister of Labour; Ministry means the Ministry of Labour; occupational illness means a condition that results from exposure in a workplace to a physical, chemical or biological agent to the extent that the normal physiological mechanisms are affected and the health of the worker is impaired thereby and includes an occupational disease for which a worker is entitled to benefits under the Workplace Safety and Insurance Act, 1997; Unit 7A OHS Law 65  OHSA Definitions Office of the Employer Adviser means the office continued under subsection 176 (2) of the Workplace Safety and Insurance Act, 1997; Office of the Worker Adviser means the office continued under subsection 176 (1) of the Workplace Safety and Insurance Act, 1997; Unit 7A OHS Law 66  OHSA Definitions owner includes a trustee; receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate; prescribed means prescribed by a regulation made under this Act; Unit 7A OHS Law 67  OHSA Definitions regulations means the regulations made under this Act; shop means a building, booth or stall or a part of such building, booth or stall where goods are handled, exposed or offered for sale or where services are offered for sale; supervisor means a person who has charge of a workplace or authority over a worker; Unit 7A OHS Law 68  OHSA Definitions trade union means a trade union as defined in the Labour Relations Act that has the status of exclusive bargaining agent under that Act in respect of any bargaining unit or units in a workplace and includes an organization representing workers or persons to whom this Act applies where such organization has exclusive bargaining rights under any other Act in respect of such workers or persons; Unit 7A OHS Law 69  OHSA Definitions worker means any of the following, but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program: 1. A person who performs work or supplies services for monetary compensation. Unit 7A OHS Law 70  OHSA Definitions 2. A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled. 3. A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university, private career college or other post-secondary institution. Note: On a day to be named by proclamation “private career college” to be replaced with “career college” Unit 7A OHS Law 71  OHSA Definitions 4. Repealed: 2017, c. 22, Sched. 1, s. 71 (2). 5. Such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation; Unit 7A OHS Law 72  OHSA Definitions workplace means any land, premises, location or thing at, upon, in or near which a worker works; workplace harassment means, (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment; Unit 7A OHS Law 73  OHSA Definitions workplace sexual harassment means, (a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; Unit 7A OHS Law 74  OHSA Definitions workplace violence means, (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. Unit 7A OHS Law 75  OHSA Definitions 1 (2) For the purposes of this Act and the regulations, a ship being manufactured or under repair shall be deemed to be a project. (3) An owner does not become a constructor by virtue only of the fact that the owner has engaged an architect, professional engineer or other person solely to oversee quality control at a project. Unit 7A OHS Law 76 Workplace harassment 1 (4) A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment. 2016, c. 2, Sched. 4, s. 1 (3). Unit 7A OHS Law 77  PART I APPLICATION Unit 7A OHS Law 78  Application of the OHSA 2 (1) This Act binds the Crown and applies to an employee in the service of the Crown or an agency, board, commission or corporation that exercises any function assigned or delegated to it by the Crown. (2) Despite anything in any general or special Act, the provisions of this Act and the regulations prevail. Unit 7A OHS Law 79  Application of the OHSA 3 (1) This Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith. (2) Except as is prescribed and subject to the conditions and limitations prescribed, this Act or a Part thereof does not apply to farming operations. Unit 7A OHS Law 80  Application of the OHSA Where is the prescription? ONTARIO REGULATION 414/05 - Farming Operations Application of Act to farming operations 1. Subject to the limitations and conditions set out in this Regulation, the Act applies to farming operations. Exception 2. Despite section 1, the Act does not apply to a farming operation operated by a self-employed person without any workers. O. Reg. 414/05, s. 2. Unit 7A OHS Law 81  Application of the OHSA 3 (3) Except as is prescribed and subject to the conditions and limitations prescribed, this Act or a Part thereof does not apply to, (a) a person who is employed as a teacher as defined in the Education Act; or (b) a person who is employed as a member or teaching assistant of the academic staff of a university or a related institution. Unit 7A OHS Law 82  Application of the OHSA Where is the prescription? Teachers, R.R.O. 1990, Reg. 857 2. Subject to section 3, the Act applies to all persons who are employed as teachers as defined in the Education Act. R.R.O. 1990, Reg. 857, s. 2. Unit 7A OHS Law 83  Application of the OHSA Where is the prescription? Regulation for University Academics and Teaching Assistants, R.R.O. 1990, Reg. 858. As of July 1, 1984, academic staff and teaching assistants are considered to be the same as any other worker under the OHSA. Unit 7A OHS Law 84  Application of the OHSA 4. Subsection 25 (1), clauses 26 (1) (c), (e), (f) and (g), subsection 33 (1) and sections 34, 37, 38, 39, 40, 41, 51, 52, 54, 57, 59, 60, 61, 62, 66, 67, 68 and 69, and the regulations in relation thereto, apply with necessary modifications to a self-employed person. Unit 7A OHS Law 85  PART II ADMINISTRATION Unit 7A OHS Law 86  Administration of the OHSA Administration of Act 4.1 (1) The Minister is responsible for the administration of this Act. 2011, c. 11, s. 2. Unit 7A OHS Law 87  Administration of the OHSA Powers of Minister 4.1 (2) In administering this Act, the Minister’s powers and duties include the following: 1. To promote occupational health and safety and to promote the prevention of workplace injuries and occupational diseases. 2. To promote public awareness of occupational health and safety. Unit 7A OHS Law 88  Administration of the OHSA 3. To educate employers, workers and other persons about occupational health and safety. 4. To foster a commitment to occupational health and safety among employers, workers and others. 5. To make grants, in such amounts and on such terms as the Minister considers advisable, to support occupational health and safety. 2011, c. 11, s. 2. Unit 7A OHS Law 89  Administration of the OHSA Duty to consider 4.1 (3) In administering this Act, the Minister shall consider advice that is provided to the Minister under this Act. 2011, c. 11, s. 2. Unit 7A OHS Law 90  Administration of the OHSA Delegation of powers 5 Where under this Act or the regulations any power or duty is granted to or vested in the Minister or the Deputy Minister, the Minister or Deputy Minister may in writing delegate that power or duty from time to time to any employee in the Ministry subject to such limitations, restrictions, conditions and requirements as the Minister or Deputy Minister may set out in the delegation. R.S.O. 1990, c. O.1, s. 5; 2006, c. 35, Sched. C, s. 93 (1). Unit 7A OHS Law 91  Administration of the OHSA 6 (1) Such persons as may be necessary to administer and enforce this Act and the regulations may be appointed as inspectors by the Deputy Minister and the Deputy Minister may designate one or more of the inspectors as a Director or Directors. (2) A Director may exercise any of the powers or perform any of the duties of an inspector under this Act or the regulations. Unit 7A OHS Law 92  Administration of the OHSA 7 (1) The Deputy Minister shall issue a certificate of appointment, bearing his signature or a facsimile thereof, to every inspector. (2) Every inspector, in the exercise of any powers or duties under this Act, shall produce his or her certificate of appointment upon request. Unit 7A OHS Law 93  Advisory Committees 21 (1) The Minister may appoint committees, which are not committees as defined in subsection 1(1), or persons to assist or advise the Minister on any matter arising under this Act or to inquire into and report to the Minister on any matter that the Minister considers advisable. Unit 7A OHS Law 94  MOL Funding 22 (1) The Workplace Safety and Insurance Board shall require Schedule 1 and Schedule 2 employers under the Workplace Safety and Insurance Act, 1997 to make payments to defray the cost of administering this Act and the regulations. The Lieutenant Governor in Council may fix the total payment to be made by all employers for that purpose. (2) The Workplace Safety and Insurance Board shall remit the money collected from employers under this section to the Minister of Finance. Unit 7A OHS Law 95  PART II.1 PREVENTION COUNCIL, CHIEF PREVENTION OFFICER AND DESIGNATED ENTITIES (not covered) Unit 7A OHS Law 96 3. The Duties (in the OHSA) Unit 7A OHS Law 97  Duties Duties Generally Constructor and Contractor Duties Employer Duties Worker Duties Supervisor Duties Directors and Officers Duties Property Owners’ Duties Suppliers’ Duties Architects and Engineers’ Duties Unit 7A OHS Law 98  Some Questions re Duties Be very careful about using a definition across jurisdictions. Is the OHS Act of a jurisdiction encouraging a healthy Internal Responsibility System Ask for each one, “what would be due diligence for this duty?” What sort of “program” might be developed within an OHS management system to ensure compliance with the duty? Unit 7A OHS Law 99  Several Ideas about Duties 1. Personal 2. Can't be delegated to avoid liability 3. Can't be contracted out of 4. Interlocked - employer, supervisor and worker duties are integrated 5. Some are "regulation dependent" - where the duty says "as prescribed" Unit 7A OHS Law 100  Several Ideas about Duties 6. Some are "regulation independent" 7. The duties are broad and flexible and must be applied to any given situation. 8. The courts have interpreted some duties to mean other than what they seem to say on the surface - "judicial (or common law) interpretation" 9. Due diligence is a defence to a charge that one has breached a duty Unit 7A OHS Law 101  OHSA - PART III Constructor and Licensee Duties Unit 7A OHS Law 102  Constructor Duties Ontario There are many types of contractors who can come into an employer’s workplace. If the work is a “construction project”, then the contractor might be the “constructor”.....or not. The owner or the general contractor can be the constructor... it’s a question of who is in control of all the subcontractors. Unit 7A OHS Law 103  Constructor Duties Ontario 23 (1) A constructor shall ensure, on a project undertaken by the constructor that, (a) the measures and procedures prescribed by this Act and the regulations are carried out on the project; (b) every employer and every worker performing work on the project complies with this Act and the regulations; and (c) the health and safety of workers on the project is protected. Unit 7A OHS Law 104  Constructor Duties Ontario 23 (2) Where so prescribed, a constructor shall, before commencing any work on a project, give to a Director notice in writing of the project containing such information as may be prescribed. Notice of project Unit 7A OHS Law 105  OHSA Employer Duties Unit 7A OHS Law 106  Employer Duties Ontario 25 (1) An employer shall ensure that, (a) the equipment, materials and protective devices as prescribed are provided; (b) the equipment, materials and protective devices provided by the employer are maintained in good condition; (c) the measures and procedures prescribed are carried out in the workplace; (d) the equipment, materials and protective devices provided by the employer are used as prescribed; and Unit 7A OHS Law 107  Employer Duties Ontario (e) a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, is capable of supporting any loads that may be applied to it, (i) as determined by the applicable design requirements established under the version of the Building Code that was in force at the time of its construction, (ii) in accordance with such other requirements as may be prescribed, or (iii) in accordance with good engineering practice, if subclauses (i) and (ii) do not apply. Unit 7A OHS Law 108  Employer Duties Ontario 25 (2) Without limiting the strict duty imposed by subsection (1), an employer shall, (a) provide information, instruction and supervision to a worker to protect the health or safety of the worker; (b) in a medical emergency for the purpose of diagnosis or treatment, provide, upon request, information in the possession of the employer, including confidential business information, to a legally qualified medical practitioner and to such other persons as may be prescribed; Unit 7A OHS Law 109  Employer Duties Ontario (c) when appointing a supervisor, appoint a competent person; (d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent; (e) afford assistance and co-operation to a committee and a health and safety representative in the carrying out by the committee and the health and safety representative of any of their functions; Unit 7A OHS Law 110  Employer Duties Ontario (f) only employ in or about a workplace a person over such age as may be prescribed; (g) not knowingly permit a person who is under such age as may be prescribed to be in or about a workplace; (h) take every precaution reasonable in the circumstances for the protection of a worker; GENERAL DUTY CLAUSE Unit 7A OHS Law 111  Employer Duties Ontario (i) post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers. (j) prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy; (k) post at a conspicuous location in the workplace a copy of the occupational health and safety policy; Unit 7A OHS Law 112  Employer Duties Ontario (l) provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer's possession and, if that report is in writing, a copy of the portions of the report that concern occupational health and safety; (m) advise workers of the results of a report referred to in clause (l) and, if the report is in writing, make available to them on request copies of the portions of the report that concern occupational health and safety; and Unit 7A OHS Law 113  Employer Duties Ontario (n) notify a Director if a committee or a health and safety representative, if any, has identified potential structural inadequacies of a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, as a source of danger or hazard to workers. R.S.O. 1990, c. O.1, s. 25 (2); 2017, c. 34, Sched. 30, s. 1 (1). Unit 7A OHS Law 114  Employer Duties Ontario 25 (3) For the purposes of clause (2) (c), an employer may appoint himself as a supervisor where the employer is a competent person. (4) Clause (2) (j) does not apply with respect to a workplace at which five or fewer workers are regularly employed. (5) Clause (2) (n) does not apply to an employer that owns the workplace. Unit 7A OHS Law 115 Footwear 25.1 (1) An employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely. 2017, c. 22, Sched. 3, s. 1. Exception (2) Subsection (1) does not apply with respect to an employer of a worker who works as a performer in the entertainment and advertising industry. 2017, c. 22, Sched. 3, s. 1. Unit 7A OHS Law 116 Definitions (3) In subsection (2), “entertainment and advertising industry” means the industry of producing, (a) live or broadcast performances, or (b) visual, audio or audio-visual recordings of performances, in any medium or format; “performance” means a performance of any kind, including theatre, dance, ice skating, comedy, musical productions, variety, circus, concerts, opera, modelling and voice-overs, and “performer” has a corresponding meaning. 2017, c. 22, Sched. 3, s. 1. Unit 7A OHS Law 117  Naloxone Naloxone kits 25.2 (1) Where an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer, or where the prescribed circumstances exist, the employer shall, (a) provide and maintain in good condition a naloxone kit in that workplace; and (b) comply with any other prescribed requirements respecting the provision and maintenance of naloxone kits and the training referred to in subsection (3) Unit 7A OHS Law 118  Naloxone Location of kit (2) The employer shall ensure that, at any time there are workers in the workplace, the naloxone kit is in the charge of a worker who works in the vicinity of the kit and who has received the training described in subsection (3). Training (3) The training shall include training to recognize an opioid overdose, to administer naloxone and to acquaint the worker with any hazards related to the administration of naloxone, and shall meet such other requirements as may be prescribed. Unit 7A OHS Law 119  Naloxone Limit on disclosure (4) No employer shall disclose to any person more personal information than is reasonably necessary to comply with this section. Employer duties (5) For greater certainty, the employer duties set out in section 25 apply, as appropriate, with respect to the administration of naloxone in the workplace. Definition (6) In this section, “naloxone kit” means a kit that includes the prescribed contents. Unit 7A OHS Law 120  Employer Duties PART III.0.1 VIOLENCE AND HARASSMENT (not covered in detail) Unit 7A OHS Law 121  Employer Duties PART III.0.1 VIOLENCE AND HARASSMENT Policies, violence and harassment 32.0.1 (1) An employer shall, (a) prepare a policy with respect to workplace violence; (b) prepare a policy with respect to workplace harassment; and (c) review the policies as often as is necessary, but at least annually. 2009, c. 23, s. 3. Unit 7A OHS Law 122  Employer Duties PART III.0.1 VIOLENCE AND HARASSMENT Written form, posting 32.0.1 (2) The policies shall be in written form and shall be posted at a conspicuous place in the workplace. Exception (3) Subsection (2) does not apply if the number of workers regularly employed at the workplace is five or fewer, unless an inspector orders otherwise. Unit 7A OHS Law 123  Employer Duties PART III.0.1 VIOLENCE AND HARASSMENT Program, violence 32.0.2 (1) An employer shall develop and maintain a program to implement the policy with respect to workplace violence required under clause 32.0.1 (1) (a). 2009, c. 23, s. 3. Unit 7A OHS Law 124  OHSA Worker Duties Unit 7A OHS Law 125  Worker Duties Ontario 28 (1) A worker shall, (a) work in compliance with the provisions of this Act and the regulations; (b) use or wear the equipment, protective devices or clothing that the worker's employer requires to be used or worn; Unit 7A OHS Law 126  Worker Duties Ontario (c) report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker; and (d) report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows. Unit 7A OHS Law 127  Worker Duties Ontario 28 (2) No worker shall, (a) remove or make ineffective any protective device required by the regulations or by his or her employer, without providing an adequate temporary protective device and when the need for removing or making ineffective the protective device has ceased, the protective device shall be replaced immediately; (b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; or (c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct. Unit 7A OHS Law 128  Worker Duties Ontario Consent to medical surveillance 28 (3) A worker is not required to participate in a prescribed medical surveillance program unless the worker consents to do so. Unit 7A OHS Law 129  OHSA Supervisor Duties Unit 7A OHS Law 130  Supervisor Duties Ontario 27 (1) A supervisor shall ensure that a worker, (a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and (b) uses or wears the equipment, protective devices or clothing that the worker's employer requires to be used or worn. Unit 7A OHS Law 131  Supervisor Duties Ontario 27 (2) Without limiting the duty imposed by subsection (1), a supervisor shall, (a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware; (b) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and (c) take every precaution reasonable in the circumstances for the protection of a worker. Unit 7A OHS Law 132  Directors' and Officers' Duties Ontario 32 Every director and every officer of a corporation shall take all reasonable care to ensure that the corporation complies with, (a) this Act and the regulations; (b) orders and requirements of inspectors and Directors; and (c) orders of the Minister. Unit 7A OHS Law 133  OHSA Property Owner Duties Unit 7A OHS Law 134  Property Owner Duties Ontario 29 (1) The owner of a workplace that is not a project shall, (a) ensure that, (i) such facilities as are prescribed are provided, (ii) any facilities prescribed to be provided are maintained as prescribed, (iii) the workplace complies with the regulations, and (iv) no workplace is constructed, developed, reconstructed, altered or added to except in compliance with this Act and the regulations; and Unit 7A OHS Law 135  Property Owner Duties Ontario (b) where so prescribed, furnish to a Director any drawings, plans or specifications of any workplace as prescribed. Unit 7A OHS Law 136  Supplier of Leased Equipment Ontario 31 (1) Every person who supplies any machine, device, tool or equipment under any rental, leasing or similar arrangement for use in or about a workplace shall ensure, (a) that the machine, device, tool or equipment is in good condition; (b) that the machine, device, tool or equipment complies with this Act and the regulations; and (c) if it is the person's responsibility under the rental, leasing or similar arrangement to do so, that the machine, device, tool or equipment is maintained in good condition. Unit 7A OHS Law 137  Architects and Engineers’ Duties Ontario 31 (2) An architect as defined in the Architects Act, and a professional engineer as defined in the Professional Engineers Act, contravenes this Act if, as a result of his or her advice that is given or his or her certification required under this Act that is made negligently or incompetently, a worker is endangered. Unit 7A OHS Law 138 Penalties Unit 7A OHS Law 139 Penalties 66 (1) Subject to subsections (2) and (2.1), every person who contravenes or fails to comply with, (a) a provision of this Act or the regulations; (b) an order or requirement of an inspector or a Director; or (c) an order of the Minister, is guilty of an offence and on conviction is liable to a fine of not more than $500,000 or to imprisonment for a term of not more than twelve months, or to both. Unit 7A OHS Law 140 Same 66 (2) If a corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the corporation is $1,500,000. 2022, c. 7, Sched. 4, s. 2 (2). Same 66 (2.1) A director or officer of a corporation who contravenes or fails to comply with section 32 is guilty of an offence and on conviction is liable to a fine of not more than $1,500,000 or to imprisonment for a term of not more than twelve months, or to both. Unit 7A OHS Law 141 Aggravating factors 66 (2.2) Each of the following circumstances shall be considered an aggravating factor for the purposes of determining a penalty under this section: 1. The offence resulted in the death, serious injury or illness of one or more workers. 2. The defendant committed the offence recklessly. 3. The defendant disregarded an order of an inspector. 4. The defendant was previously convicted of an offence under this or another Act. 5. The defendant has a record of prior non-compliance with this Act or the regulations. Unit 7A OHS Law 142 6. The defendant lacks remorse. 7. There is an element of moral blameworthiness to the defendant’s conduct. 8. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs. 9. After the commission of the offence, the defendant, i. attempted to conceal the commission of the offence from the Ministry or other public authorities, or ii. failed to co-operate with the Ministry or other public authorities. 10. Any other circumstance that is prescribed as an aggravating factor. 2022, c. 7, Sched. 4, s. 2 (2). Unit 7A OHS Law 143