On March 3, 2011, the Ontario government introduced Bill 160, "An Act to amend the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997 with respect to occupational health and safety and other matters." Following up on our previous e-Alert, we wanted to alert our readers that the Government has quickly moved the Bill through the legislature and it has now received royal assent. Although many of the provisions will come into effect at a later date, some provisions, including those respecting training, are effective immediately.
Bill 160 follows the December 2010 report of a government-appointed Expert Advisory Panel on Occupational Health and Safety. The Panel, chaired by former Ontario cabinet secretary Tony Dean, recommended 46 changes to how Ontario regulates occupational health and safety. Bill 160 is intended to implement some of the Panel's recommendations. As it was passed, Bill 160 amends the Occupational Health and Safety Act (OHSA) and significantly changes the regulation of occupational health and safety in Ontario. As noted below, such changes include the establishment of a Prevention Council and Chief Prevention Officer (CPO), the establishment of training standards and approved training programs and providers, new reprisal provisions, changes to the powers and functions of the joint health and safety committee and transfer of the prevention mandate from the Workplace Safety and Insurance Board (WSIB) to the Ministry of Labour.
Below, we have summarized key aspects of the final version of Bill 160.
Under Bill 160, a "Prevention Council" is established and responsible for providing advice to the Minister of Labour (Minister). The Prevention Council must comprise an equal number of worker and union representatives as well as non-unionized employee representatives and other persons with occupational health and safety experience. Essentially, the functions of the Prevention Council are to advise the Minister on the appointment of the CPO and then to advise the CPO on health and safety matters (e.g. prevention of workplace injuries and changes to funding).
The CPO is responsible for: (i) developing a provincial occupational health and safety strategy; (ii) preparing an annual report on occupational health and safety; (iii) exercising powers or duties delegated by the Minister; (iv) certifying members of the joint health and safety committee; and (v) providing advice to the Minister on a variety of health and safety matters, including the prevention of workplace injuries, proposed changes to the funding and delivery of services and the establishment of standards for "designated entities." Perhaps most notably, the CPO will play a critical role in establishing training standards and the certifying of training providers (see below).
Training Standards and Approved Providers
Under Bill 160, the CPO may establish standards for training programs and approve programs that meet those standards. The CPO can also establish standards that a person would have to meet before becoming an "approved training provider," and approve a person as a training provider of one or more "approved training programs." The CPO is required to publish these standards and may amend them as well.
In establishing standards and programs and approving persons as training providers, the CPO has additional powers. For example, the CPO can require a person seeking an approval to "provide information, records or accounts" required by the CPO pertaining to the approval. The CPO can also "make such inquiries and examinations as he or she considers necessary." Finally, the CPO has the authority to collect information about a worker's successful completion of an approved training program.
Additional Training Provisions
At present, one worker member and one management member of the joint health and safety committee (JHSC) are required to be "certified" by the WSIB. Under Bill 160, the CPO can establish training and certification standards for JHSC members. Those individuals who are already certified under the Workplace Safety and Insurance Act, 1997 (WSIA) would not have to re-certify.
In addition, a duty is imposed on constructors or employers to ensure that health and safety representatives receive training that will enable them to "effectively exercise the powers and perform the duties of a health and safety representative."
Shifting the Prevention Mandate From the WSIB to the Ministry of Labour
Part of the purpose of Bill 160 is to consolidate prevention and enforcement of occupational health and safety to the Ministry of Labour. As such, Bill 160 repeals Part II (Injury and Disease Prevention) of the WSIA. An example of a former WSIB function to be taken over by the Ministry of Labour relates to creating "designated entities." Bill 160 allows the Minister to designate "safe workplace associations," medical clinics or training centres specializing in occupational health and safety matters. Any such entity will be required to meet, and continue to abide by, certain standards established by the Minister. Any entity already designated under the WSIA will continue to be deemed designated under Bill 160.
Prior to Bill 160, the JHSC had the power under OHSA to make recommendations to a constructor or employer for the improvement of worker health and safety. Under Bill 160, if the JHSC does not reach consensus on recommendations, either the worker co-chair or the management co-chair can make written recommendations.
Under Bill 160, Section 50 of OHSA is amended to allow a Ministry of Labour inspector to refer a matter to the Ontario Labour Relations Board (Board) regarding whether an employer has committed a reprisal against a worker. The inspector will only be permitted to do so where "the circumstances warrant," and where: (i) the matter alleged to have caused the reprisal was not dealt with by arbitration under a collective agreement or by the filing of a complaint with the Board; and (ii) the worker consents to the referral. In addition, and consistent with the government's intent to streamline reprisal complaints, Bill 160 gives the Board authority to draft expedited rules of procedure relating to reprisal complaints. Finally, the Office of the Worker Adviser and, for employers with fewer than 100 employees, the Office of the Employer Adviser (agencies that assist workers and employers, respectively, with WSIB issues) will be given prescribed functions relating to reprisal complaints.
These changes to the reprisal provisions have the potential to increase the number of reprisal complaints to the Board, given that in certain circumstances an inspector on a routine audit will have the power to refer reprisal cases directly to the Board.
Codes of Practice
Under Bill 160, the Minister may approve a "code of practice," which may be followed to comply with a legal requirement specified in the approval. A failure to comply will not, in itself, constitute a breach of the legal requirement. Although the Minister always had this authority, the "code of practice" used to only apply to requirements in the regulations. Now, statutory requirements may be discharged by following a "code of practice."
Implications for Employers
Bill 160 has created a new OHSA bureaucracy, as well as making other important and technical changes to OHSA. Although many of the provisions will come into effect on April 1, 2012, or upon proclamation by the lieutenant governor, certain provisions (including the training provisions) are already in effect. Nevertheless, much of the substance to Bill 160 will not be felt by employers until the approved training providers and the training standards and programs, are finalized by the CPO. We will continue to monitor progress on this front and update you accordingly.
It is important to note that the Government of Ontario has showcased its record on occupational health and safety, and has indicated that it plans to implement all 46 recommendations of the Expert Advisory Panel within the next three to five years1. Accordingly, it may be that Bill 160 is only the first step in a more comprehensive overhaul of Ontario's occupational health and safety system.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.