November 4, 2011by Israel Foulon LLP
Bill 160, An Act to amend the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997, received Royal Assent on June 1, 2011. The amendments implement a number of recommendations made to the Minister of Labour in a report prepared by an Expert Advisory Panel (the “Dean Report”) following an accident at a construction site that resulted in the fatality of four workers. The key changes that are important for employers to review are outlined below in more detail and include: mandatory training program standards, approval of training providers, employer responses to Joint Health and Safety Committee recommendations, reprisal referrals and safe workplace designations.
The Act shifts the responsibility for workplace injury and occupational disease prevention from the Workplace Safety and Insurance Board (“WSIB”) to the Minister of Labour and establishes a new prevention structure. The Minister’s added powers in administering this Act are as follows:
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.
3. To educate employers, workers and others 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.
A Chief Prevention Officer will lead this new structure with the support and advice of a Prevention Council, composed of representatives from the following three groups:
(1) trade unions and provincial labour organizations;
(2) employers; and
(3) representatives from each of:
a. non-unionized workers;
b. Workplace Safety and Insurance Board;
c. persons with occupational health and safety expertise.
The purpose of this new structure is to address and implement the recommendations made in the Dean Report.
George Gritziotis was recently appointed Ontario’s first Chief Prevention Officer (“CPO”). Mr. Gritziotis officially started his work as the CPO for Ontario on October 17, 2011. Employers can expect more concrete changes to follow Mr. Gritziotis’ meetings with the Interim Prevention Council and other health and safety partners.
Occupational Health and Safety Strategy
The CPO will develop a strategy to identify occupational health and safety goals for Ontario and outline the key indicators to measure the successful achievement of those goals.
Training Program Standards and Training Provider Approval
The Act provides the CPO with the legislative framework to create new standards for mandatory safety training programs that will be required in order to comply with the Occupational Health and Safety Act (“OHSA”). The CPO will also establish standards to be achieved in order for an individual to obtain approval as a qualified training provider. These standards have not yet been established. The CPO has the authority under the new provisions of the Act to collect documentation prior to approving a training provider and obtain records to substantiate the number of workers who have successfully completed an approved training program.
Joint Health & Safety Committee
A Joint Health and Safety Committee (“JHSC”) is responsible for identifying hazards and making recommendations to constructors or employers to improve the health and safety of workers. Currently, an employer or constructor must provide the JHSC with a written response to recommendations made on consensus by the Committee, requiring the support of both the Committee chair selected by the workers and the Committee chair selected by the employer or constructor.
Starting April 1, 2012 (or earlier if an alternate date is proclaimed by the Lieutenant Governor), when the JHSC cannot reach a consensus on an issue discussed, either of the co-chairs of the Committee will have the power to make a written recommendation to a constructor or employer. The constructor or employer will be responsible for providing a response to the written recommendation within 21 days, whether the recommendation is made by one of the co-chairs or by the Committee on consensus.
Employers should note that the CPO has the power as of April 1, 2012 (or earlier if an alternate date is proclaimed by the Lieutenant Governor), to introduce mandatory training and other standards required for the certification of a JHSC member. JHSC members already certified under the Workplace Safety and Insurance Act (“WSIA”) are deemed to be certified under the OHSA. Employers should expect to enlarge their budgets for the training of new JHSC members.
The most significant amendment to the reprisal provision of the OHSA allows inspectors to refer reprisals to the Ontario Labour Relations Board. Prior to the amendment, it was a worker’s responsibility to identify a reprisal and initiate a complaint. Inspectors will soon be able to make a referral upon obtaining a worker’s consent and in circumstances where a complaint has not already been filed by the worker. This provision of the Act will come into force on a future date to be proclaimed by the Lieutenant Governor.
The Minister of Labour may designate an entity as a safe workplace association or as a medical clinic or training center specializing in occupational health and safety matters if the entity meets prescribed standards, which have not yet been established. Designated entities may be eligible for a grant from the Ministry. Once standards are established for designated entities, the Minister will publish the new standards along with the date by which entities must comply.
Entities currently designated as a safe workplace association or as a medical clinic or training centre specializing in occupational health and safety matters under section 6 of the WSIA will retain that designation under the current WSIA standards until a date to be specified by the Minister of Labour.
MINISTRY OF LABOUR ENFORCEMENT BLITZ – NOVEMBER 2011
Ontario will target workplace hazards related to racking and storage during an enforcement blitz at industrial workplaces across the province.
In November, Ministry of Labour inspectors will check for hazards involving the installation, use, maintenance and repair of racking and storage systems. This includes ensuring material is safely placed and stored on racks.
Inspectors will check that:
racking is selected and installed in a hazard-free manner;
racking is properly maintained and repaired;
material is safely loaded onto racks by appropriate lift trucks; and
aisles are obstruction-free, lighting is adequate and pallets are in good condition.
Between January 1, 2006 and December 31, 2010, three workers died and 45 others received serious injuries involving racking and storage, according to Ministry of Labour data.
Examples of safety issues involving racking and storage include:
poor storage rack design;
incorrect installation and assembly of racking system;
structural problems with the floors or walls of the storage area such as uneven floors and overloaded supporting structures;
concrete floors with cracks and breaks around the racking unit anchors resulting in racking that is not level;
poor/inadequate storage rack maintenance and repair;
incorrect use of racking or overloading;
lack of regular inspection and maintenance program; and
products sticking out the back of the racking.
Ministry inspectors will visit workplaces where racking is commonly used (such as warehouses, distribution centres, retail operations and manufacturing plants), targeting the following risk factors:
workplaces identified as being high-priority due to possible hazards involving racking and storage;
workplaces about which complaints have been received; and
workplaces where there is a poor compliance history.
Inspectors will focus on industrial pallet (skid) racks that store heavy materials. Mechanical lifting devices, such as forklifts, are required to place the loaded pallets onto the racking.