Measures to support the internal responsibility system
All workplace parties are responsible for health and safety under the Occupational Health and Safety Act (OHSA). The greatest responsibility generally falls upon the employer, as they control the workplace, but supervisors and workers also share responsibility. The concept behind this structure, coined by Dr. James Ham as the Internal Responsibility System (IRS), is the foundation of the OHSA. MOL inspectors cannot be in all workplaces at all times, so workplace parties need to take responsibility for health and safety hazards to the extent that they can control them. It was confirmed during the review that this remains the right approach to take in legislation and that generally, the responsibilities are placed correctly. However, stakeholders did raise concerns that without adequate knowledge of health and safety, and with fear of reprisal, workers are impeded from fully participating in the IRS. Recommendations regarding concerns about education, training and reprisal are contained elsewhere in the report.
Since the Ham Commission and the introduction of the OHSA, the world of work and nature of work has changed in society. New work relationships have emerged making the concepts of employers, supervisors and workers less clear in some circumstances. Arrangements with independent contractors, temporary agency employers and workers, and transient workplaces have become more common, blurring the lines of responsibility as described within OHSA. Workplace parties need to develop a shared understanding of the new responsibilities that come with these arrangements, which were not as common when the OHSAwas developed. Updated guidance on the placement and acceptance of responsibility for health and safety that flow from these new work arrangements would benefit all the parties.
In addition to placing responsibilities on individuals for health and safety, the OHSA establishes requirements for Joint Health and Safety Committees (JHSCs) or Health and Safety Representatives (HSRs), depending on the number of workers in the workplace. JHSCs are required in workplaces where 20 or more workers are regularly employed or where designated substances are present. They consist of, at minimum, a worker member chosen by workers and an employer member chosen by the employer. Section 9 of the OHSA assigns a variety of responsibilities to the JHSC, including workplace inspections and meetings to address health and safety issues. Workplaces with 6–19 regularly employed workers are required to have an HSR who is chosen by the workers. Section 8 of the OHSA assigns similar responsibilities to the HSR, as does section 9 to JHSCs.
The Panel heard frequently that effectively functioning JHSCs and HSR are essential to an effectively functioning internal responsibility system. However, some employers do not comply with these requirements, delay the replacement of individuals, or do not support the work of the committee or member. The issue of enforcement related to non-compliance is addressed in a later section of this report. Section 9 of the OHSA requires that employers respond in writing within 21 days to a written recommendation made jointly by the employer and worker co-chairs. A concern frequently expressed to the Panel was that if an issue is unresolved at the committee, the worker member is stymied from escalating the issue formally with management.
Roles and responsibilities of workplace parties (recommendation 12)
The nature of work and workplace relationships has changed dramatically since the OHSA was first developed. The effect of these relationships on responsibilities under the OHSA is often not clearly defined or understood. Some of the roles, and their corresponding responsibilities, that must be clarified are:
- Project owner
- Independent contractors
- Construction vs. Maintenance
Temporary employment agencies
The temporary staffing industry in Ontario is extensive and services a diverse variety of workplaces in the public and private sectors. The OHSA recognizes both the temporary employment agency and the client as the employer of temporary workers. As such, both employers — the temporary agency and the client with whom the agency has contracted to supply labour — are subject to duties and responsibilities as set out under the OHSA. Shared responsibilities can be a source of confusion and uncertainty and can result in neglect. The area of training is prone to this confusion; therefore, the Guides should include a section to clarify the training obligation between the temporary employment agency and client as the employer of temporary workers.
The function of the JHSC
Many stakeholders believe that the role of multi-workplace JHSCs needs clarification. A multi-workplace JHSC is established and maintained by one constructor or one employer for more than one workplace or parts thereof. Multi-workplace JHSCs help geographically diverse employers meet their legislative requirements while at the same time ensuring alignment with the underlying principles of JHSCs. The Panel recommends that the Guides include a section explaining how multi-workplace JHSCs can function, including how knowledge sharing among covered workplaces can improve their effectiveness.
A number of submissions raised the issue that, despite it being the function of the JHSC to make recommendations, the need for consensus within the JHSC is sometimes used as a means to block the furtherance of recommendations. The Panel believes that either co-chair should be allowed to make a recommendation directly to the employer. Where efforts to resolve an issue are unsuccessful, a remedy such as this would ensure that the employer is made aware of the concern and has the opportunity to address the issue.
This recommendation would trigger Section 9(20), requiring the employer to respond to recommendations within 21 days in writing. This documentation will help the inspector assess whether due consideration has been given to recommendations made by the committee and co-chairs.
Certification training for JHSC members (recommendation 13)
The Occupational Health and Safety Act requires that at least one worker member and one employer member of the JHSC be trained or certified to help them fulfil their duties as committee members. Under the Workplace Safety and Insurance Act, the WSIB has the authority to develop standards for certification training and to approve trainers.
The current certification training program has been in place for over ten years. It has two parts — basic certification, which provides overall knowledge on occupational health and safety topics applicable to any workplace, and workplace-specific hazard training, which focuses on the major hazards of the particular workplace. The Panel heard consistently that certification training is important, but that its content and delivery have eroded over time.
In early 2009, the WSIB began a review of the certification training program and standards. The main objectives of the review were to;
- develop recommendations for improvements to ensure the highest quality training is being delivered;
- reach out to stakeholders by forming the Certification Review Committee and a formal consultation process; and
- review current technologies used by the certification program and provide guidance for future enhancements that would improve the delivery and administration of the program, and the training of participants and their employers.
The review was concluded in 2010 and the WSIB is expected to announce the outcome and recommendations imminently. Panel members support the continuation of the certification training program and the WSIB’s review process, which involved extensive consultations with stakeholders. The Panel has no specific recommendations related to the content or any required changes to the program.
Workplaces with 6–19 regularly employed workers are required to have an HSR who is chosen by the workers. Section 8 of the OHSA assigns responsibilities to the HSR, as does section 9 to JHSC. However, while mandatory training is required for JHSC members, no such training is required for HSRs.
In consultation with stakeholders, the prevention organization should develop a standard to establish the criteria for the development, delivery and evaluation of HSR training requirements. The prevention organization should manage that standard. It should take into consideration the literacy and language challenges present in the diverse workforce population of Ontario. The program should have multi-modal/modular delivery options (e-learning, blended, self-paced, on CD/DVD, hard copy, classroom, etc.) and be multilingual, as required. The duration of this training would be less than for certified members, but more than for entry-level workers. The HSR training should be flexible, accessible and available for a nominal fee to employers, and should include refresher training. Equivalency would be available to employers, and the employer would be responsible for record keeping.
The introduction of mandatory training for all health and safety representatives should be adapted to businesses with multiple locations and high turnover as well as for short duration workplaces. The Panel notes that small, short term construction projects could be particularly affected by this recommendation in that the composition of the workforce could be regularly changing. An employer would be assigning workers on the basis of skills needed for the particular work and the assignment of a trained HSR to a crew could be difficult, particularly if the work was of short duration. The OHSA currently allows multiple workplaces to be represented by one multi-workplace JHSC. A similar provision to allow a health and safety representative to cover more than one workplace of an employer for construction projects may address such an issue.