More than meets the eye Tough new safety laws

All of us want to live in safe and healthy environment. We want to make sure that we go to work and come back healthy and in one piece. Society determines the level of protection we have. As you know, health and safety standards are not the same around the globe.

For example, safe, fair and harmonious workplaces are essential to the social and economic well-being of people. In Ontario, for example, the goal of the government is to create an environment that makes the province’s workplaces among the safest in the world, places where employers and workers effectively work together to prevent injury and illness.

In order to become the safest jurisdiction in the world, a system of internal responsibility was developed. It is based on greater self-reliance of employers and workers, while at the same time sees that a strong enforcement program is put into place by the labour ministry.

However, the Ministry of Labour cannot be at all workplaces all the time to ensure compliance to the Occupational Health & Safety Act and its regulations. For this reason, the concept of an internal responsibility system is the basis of the Act.

The Act places primary responsibility for ensuring safe and healthy workplaces on the employer. Workers are expected to conduct their duty in a responsible manner and to follow the work procedures set out for them. Workers have a right to know, to participate and to refuse work when it deemed to be unsafe. Cooperation between employers and workers is encouraged so each can exercise their rights and responsibilities.

The role of the Ministry is to create, communicate and enforce the Occupational Health & Safety Act and its regulations, and not necessarily to provide advice or approve anything.

Due diligence

The major component of the internal responsibility system is a concept of due diligence. Due diligence, at its simplest, means working with care and showing that you care enough about your workplace and people to know your responsibilities under the law and take all reasonable steps to carry them out.

The concept of due diligence can be broken down into the following points:

Knowledge of legal obligations

Knowledge of hazards

Action based on hazard assessment and knowledge

Written health and safety policies and procedures

Orientation and training

Supervisory monitoring

Communication and coordination

Enforcement with discipline

Documentation.

The only true form of defense against Ministry charges for Occupational Health & Safety Act violations is one of due diligence. Failure to comply with the requirements of the Act could now result in prosecution and penalties for corporations and for officers, directors, managers, engineers, etc.

A corporation that is convicted of non-compliance under the requirements of the Act could face a maximum fine of $500,000 per count. For individuals, the maximum fine is $25,000 per count and/or imprisonment for up to 12 months.

Some important changes took place to the Act in October 2000.

An amendment to Section 7 of Regulation 851 of The Occupational Health & Safety Act can introduced. This amendment became known as Reg. 582/00. It entails the requirement for a Pre-Start Health and Safety Review, commonly called the PSR.

The regulation specifies that a professional engineer licensed in Ontario must conduct a review under the following circumstances (with the exception of occupational exposure to hazardous substances):

Storage and dispensing of flammable liquids: When certain quantities of flammable liquids are stored or dispensed.

Guarding: When safeguarding devices signal an apparatus to stop.

Racks and racking systems: When industrial pallet racks, movable shelf racks and stacker racks made of cold-formed or hot-rolled steel structural members are used.

Potentially explosive processes: When there are any processes involving the handling of flammable liquids or combustible liquids heated above their flash point, and processes where flammable gases or combustible dusts are potentially explosive.

Dust collectors: When there are any processes involving the handling of combustible dusts, such as wood dust, flour, sugar, aluminum, powdered paint, etc., or when a dust collector or filter receiver is required and may create an imminent hazard to a worker.

Molten metal and foundries: In cases where the factory produces aluminum or steel or a foundry that melts material or handles molten material.

Lifting devices: In instances when the construction, addition, installation or modification relates to a lifting device, travelling crane or automobile hoist.

Occupational exposure to hazardous substances: When a process uses or produces a substance that may result a worker’s exposure to that substance in excess of any occupational exposure limits. (An industrial hygienist could also conduct a PSR for occupational exposure to a hazardous substance.)

A PSR report signed and sealed by a professional engineer must be given to a joint health and safety committee before the machine or process, as outlined above, becomes operational.

The Occupational Health & Safety Act identifies owners, lessees and employers as responsible parties as far as compliance is concerned. In other words, once the machine or process has been purchased, it becomes the owner’s responsibility to make sure that it will not endanger the worker. It is clearly not the machine or process supplier’s responsibility.

Owners of machinery are responsible

This situation alone may create added liabilities for the owners or their representatives. The owners might not necessarily be experts in machine guarding, explosion safety, etc. However, they are still the responsible party according to the law.

In order to eliminate extra liabilities, owners may specify that suppliers provide a PSR with the equipment through a so-called purchasing specification approach.

This is how it works. When purchasers set out contract specifications, they add a clause requiring that the equipment supplier obtain a PSR report from a company specializing in this type of work.

For example, a safety consultant could work together with the end user and supplier to make sure that all parties have been consulted and all issues have been resolved before the machine or process is delivered. This process ensures that the equipment is in compliance before it shipped. When the equipment arrives, it is ready to be operated right away. There are no delays.

Can you imagine a situation when equipment comes without proper certification? Extensive delays and large expenses may be required to bring the equipment to compliance to local requirements.

The engineer is on the hook

The engineer who signs and seals the report becomes liable for the content of the report. Engineers are held professionally accountable through the Professional Engineers Ontario (PEO) discipline process, which may result in a reprimand, a suspension or revocation of the license to practice. There also are other penalties if the PEO’s committee finds any wrongdoing on the part of engineer.

Legal accountability may occur through a lawsuit brought by an injured party. That is why the engineer must carry personal professional liability insurance to perform this service.

The Ministry of Labour in Ontario conducts random inspections of industrial establishments.

Industrial establishments that have been found in violation of regulations during inspections are given a work order and must comply with it within 30 days. The work order may apply to the entire plant. Since it is very difficult and costly to bring the entire plant into compliance within a very short period, many people take a proactive approach. They conduct plant audits and upgrade their facilities to achieve compliance.

A proactive approach works. Expenses associated with the plant upgrades are compensated for by the productivity gains that the process brings. It is a win-win situation.

If managed properly, compliance to the Occupational Health & Safety Act may be viewed as an opportunity, rather than obl
igation — an opportunity to create a safe and healthy environment at work and at home. This environment reflects society’s values and increases productivity. It also creates an environment that can help make Ontario workplaces among the safest in the world.

Safety File columnist Simon Fridlyand, P.Eng., is president of S.A.F.E. Engineering of Toronto, a company specializing in Pre-Start Health and Safety Reviews and audits for fire code compliance. He can be reached at 416-447-9757.