Closing the Gap Between Denial and Reality on April 28

Every year on April 28 employers and workers are asked to remember the workers who have lost their lives in the course of their employment. Many employers shudder at this conscious awakening of a nicely suppressed fear and many workers’ do exactly the same.

April 28th is about waking up that shudder and letting it out. It is truly an excellent opportunity to close that gap between denial and reality.

Employers and workers are often lulled into complacency by an “accident-free” history. The price for the wake-up call is very high.

Emotional connection to the impact of workplace injuries and lives lost is a powerful motivator to enhance safety and promote your IRS.

What can you do?

  1. Go to the excellent and informative CCOHS site and either download or request some copies of the poster (above).  http://www.ccohs.ca/events/mourning/poster.html
  2. Ask your Joint Health and Safety Committee to select a few workers whose lives have been lost and ask them to do a brief presentation or find a moving video to present to the whole team on April 28th.
  3. If feasible, provide a brief period of time off to attend this presentation.
  4. Have them link this exercise to your overall health and safety goals.
  5. Employers can also encourage their JHSC and their team to participate in the Steps for Life – Walking for Victims of Workplace Tragedy on Sunday May 1, 2011 (in most communities).  http://www.stepsforlife.ca

Posted by Cézanne Charlebois

Does Bill 160 threaten worker safety

In a recent three-quarter page Toronto Star advertisement, the Canadian Union of Public Employees (CUPE) and the Ontario Compensation Employees Union (OCEU) have complained that the government’s proposed legislation, Bill 160, will endanger Ontario’s workers. Using some selective statistics, the joint advertisement claims that injuries and deaths have decreased since WSIB assumed responsibility for prevention in 1998.

It also claims that Bill 160 would represent an unfair tax load for some employers, apparently ignoring the present unequal burden of prevention costs.

The advertisement also suggests the Ministry of Labour – who is responsible for the Occupational Health and Safety Act – might not be the best place to locate prevention services. Noting that the whole point of the OHSA is to create workspaces that minimize or eliminate work injuries, it is not altogether easy to follow this logic.

It is hard to escape the fear of job losses at the WSIB as the main thrust behind this advertisement. That might be a legitimate and justifiable concern, but from our reading of the proposed legislation, we fail to see the peril that this legislation might introduce to the workplace.

It should be remembered that when Bill 99 created the WSIB, there was great fanfare in the announcement that the new Board would function as ‘an insurance company’. Responsibility for rehabilitation was off-loaded because that was not the proper job of an insurer, we were told. So it might seem to be ironic that when we are in the midst of rehabilitation services returning to the WSIB, they are losing prevention services – something else that never really seemed to jive with being ‘an insurance company’.

Posted by Paul Harris

Ontario files consolidated OHSA regulation governing confined spaces

On March 29, the government of Ontario filed amendments to Regulation 632/05 – which is not even scheduled to come into force until July 1, 2011. The newly introduced regulation (O. Reg. 95/11) consolidates the confined space requirements already found in other regulations into the upcoming Regulation 632/05. This affects specific rules already in effect for mines and mining plants, healthcare and residential facilities, industrial establishments, and construction projects.

However, the amended Regulation 632/05 maintains the distinction between confined spaces provisions for construction projects and those that apply in other workplaces.

Contact Workplace Health and Safety Network for any assistance required in preparing for the new rules.

Posted by Paul Harris

Appeal Court decides Independent Owner Operator Truck Drivers must be counted for meeting obligation to form JHSC

Section 9(2)(a) of the Occupational Health and Safety Act (“Act”) in Ontario requires a joint health and safety committee (“JHSC”) at a workplace at which 20 or more workers are “regularly employed”. The Court of Appeal for Ontario (“Court”) recently decided that this includes independent owner operator truck drivers, who are not “employees” but self-employed individuals.  United Independent Operators Limited (“UIOL”) is a load broker who operates out of Woodbridge Ontario. They have 11 office employees and anywhere from 30 to 140 independent owner operator truck drivers contracted to do hauling, depending on the time of the year.

The Ministry of Labour (“MOL”) became involved when a truck driver who was contracted by UIOL, was crushed between his truck and that of another UIOL truck driver, causing a broken pelvis and two broken legs. The accident occurred at the worksite of a UIOL customer.  The MOL formed the view that the UIOL contravened the Act by failing to establish and maintain a JHSC.  UIOL disputed the order because they only had 11 full time employees and the truck drivers were not in an employment relationship. Nevertheless, they complied with the order by establishing and maintaining a JHSC. Despite this, the MOL still laid charges for failing to have such a committee in July 2004, when the truck driver was injured.

In finding that the UIOL was not required to establish and maintain a JHSC, the trial judge relied heavily on a case called 526093 Ontario Inc. (c.o.b. Taxi Taxi), [2000] O.O.H.S.A.D. No. 98 (QL) (“Taxi Taxi”), which was a decision of the Ontario Labour Relations Board (“OLRB”). That OLRB decision determined that “regularly employed” was held to apply only to workers who have a traditional employment relationship. As might be expected, the MOL appealed.  The Ontario Court of Justice dismissed the Appeal and agreed with the conclusions found in the Taxi Taxi decision.  Once again, the MOL appealed.

The Court felt that the appeal court judge’s reasoning in limiting the meaning of “regularly employed” was a little too narrow and inconsistent with the objectives, purpose and legislative scheme of the Act.  Because the Act is a remedial, public welfare statute intended to guarantee a minimum level of protection for health and safety of workers, it is to be interpreted generously rather than narrowly.  Recall that the Act in Ontario defines a “worker” very broadly and this definition is not limited to traditional employees but any “person who performs work or supplies services for monetary compensation” and this includes both dependent and independent contractors. Truck drivers at UIOL are therefore “workers” within the meaning of the Act.

Next the Court reviewed whether or not the truck drivers were “regularly employed”.  These terms individually or combined are not defined in the Act.  When legislative provisions are not defined, Courts will often turn to the “ordinary” meanings of the words to be interpreted.  This is why the appeal court started with the dictionary definition of “employed”. However, the Court of Appeal took a critically different starting point. They began with the Act’s definition of “employer”, which like “worker” is very broad and inclusive. “Employer” is defined as “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”.  The Court of Appeal determined that the “Taxi Taxi” decision was wrongly decided and inconsistent with the definitions of “worker” and “employer” in the Act.  Finally, the Court also commented on the Brewers Retail case which dealt with employees at “dispersed” workplaces such as retail outlets and warehouse locations in Sarnia. The Court held that just as a dispersed workplace is not a reason to deny workers the benefit of a JHSC, neither is the absence of a “traditional” employment relationship.

This decision is very important for the truck driving industry in Ontario as well many others which regularly ‘employ’ (interpreted very broadly to be consistent with remedial and protective provisions of the Occupational Health and Safety Act) independent or dependent contractors.  All should establish and maintain JHSC’s in Ontario counting both their “traditionally employed employees” and also, all of their regularly contracted independent or dependent contractors or owner operators.

Link to the court decision.

Cézanne Charlebois, Charlebois Associates