November 22, 2011

Ontario Bill 160 changes safety committee rules, labour guidelines: Lawyer

OHSA amendments impacts safety committees and labour guideline use

Now that the Ontario government has amended its Occupational Health and Safety Act , construction firms defending themselves in court will be able to use guidelines issued by the Ministry of Labour, according to a speaker at a recent Toronto conference.

“That’s an important change, because previously these Ministry of Labour guidelines, that are just on websites, did not have the force of law,” said Ryan Conlin, an employment lawyer with Stringer Brisbin Humphrey.

Conlin made his comments during a presentation on Bill 160, the law passed by the Ontario Legislature earlier this year that changed Ontario’s Occupational Health and Safety Act, at the 25th annual employers’ conference at the Toronto Congress Centre.

Bill 160 was passed after recommendations from an expert panel, led by Tony Dean, reviewed Ontario’s occupational health and safety system. One of those changes was the creation of a chief prevention officer (CPO) who reports to the Minister of Labour. The CPO, Conlin said, could approve ministry guidelines as standards which could be used as a defence in court.

Conlin said in a previous court case, he and a colleague were arguing in court over whether their client was considered a “constructor.”

“We were trying to rely on a publication, the Ministry of Labour Constructor Guideline, a missive on the website about who is or is not a constructor, and the Ministry’s lawyer stood up in court with a straight face and said, ‘That’s just the guideline for what the ministry says; usually we look at the law.’ So somehow the ministry’s own guideline is somehow not germane to who is or is not the constructor.”

But with Bill 160 in force, court cases could be different, he suggested, because guidelines approved by the CPO could be used as defences in court.

Conlin said the new chief prevention officer, George Gritziotis, is a “highly-qualified individual from all accounts.”

His appointment, Conlin said, “has been generally welcomed in the occupational health and safety community as a very credible person to be fulfilling that role.”

Bill 160 also mandated the appointment of a chief prevention council, which “has the potential to be a very important organization” because it will have the power to make recommendations to the labour minister on occupational health and safety.

“These kinds of blue ribbon panels, so to speak, are important when they have the ear of the government,” Conlin said.

“I don’t think there’s any question, since the Liberal government was re-elected, that the prevention council will have the ear of the government. Their recommendations will be taken seriously.”

He also noted companies with fewer than 20 employees, who have health and safety representatives rather than full joint occupational health and safety committees (JOSH), now have to train those reps. Conlin described the previous lack of a requirement to train health and safety reps as “a bizarre legal mistake.”

Conlin warned employers should be diligent in responding to recommendations from their corporations’ safety committees, especially now that Bill 160 allows the union co-chair, or the worker chair of a JOSH committee to make a recommendation directly to the employer if no consensus recommendation is reached by the committee. Prior to Bill 160, Conlin said, the intent was to build a consensus within the JOSH committee before making a recommendation.

“If some of you ever get a very active member of the joint health and safety committee, you could have a lot of recommendations,” Conlin said.

“For those of you who get Ministry of Labour inspections, as you will from time to time, what’s the first thing the inspector always asks to see? The minutes of the health and safety committee meeting and the recommendations to the employer. So there’s no surer way to flag an issue than having those minutes include a recommendation to an employer.”

Conlin added the response to the committee must be detailed.

“There’s no question that the issues being raised by the worker representative will be reviewed and subject to scrutiny by the Ontario Ministry of Labour and if there’s some validity to these complaints, they could be the subject of enforcement activity, up to and including charges,” he said.

“There does not have to be an accident for them to lay charges.

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