Preparing for new regs

Changes to the Occupational Health and Safety Act of Ontario (OHSA) are being introduced this year. Effective July 1, 2014, employers in Ontario must ensure that all their workers and supervisors complete a basic occupational health and safety awareness training program. This new law is called the Occupational Health and Safety Awareness and Training Regulation (O. Reg. 297/13).

The new requirement is based on the general duty to ‘provide information, instruction and supervision to a worker to protect the health or safety of the worker,’ clause 25(2)(a)]. The regulation outlines the requirements for safety awareness and training. Employers must:

• ensure that workers complete a basic occupational health and safety awareness training program as soon as reasonably possible

• ensure that supervisors complete a basic occupational health and safety awareness training program within one week of working as a supervisor

• maintain a record of the training completed by workers and supervisors, and

• provide a worker or supervisor with written proof of completion of the training, if requested by the worker or supervisor (up to six months after ceasing to work for the employer).

 Training for workers

The training program for workers must include instruction on:

• the duties and rights of workers under OHSA

• the duties of employers and supervisors under OHSA

• common workplace hazards and occupational illnesses

• the role of joint health and safety committees (JHSCs), and of health and safety representatives under OHSA

• roles of the ministry, Workplace Safety and Insurance Board (WSIB), and health and safety associations, and

• information and instruction requirements set out in the Workplace Hazardous Materials Information System (WHMIS) regulation.

Training for supervisors

The training program for supervisors must include instruction on:

• the duties and rights of workers under OHSA

• the duties of employers and supervisors under OHSA

• how to identify, assess and manage workplace hazards, the role of joint health and safety committees (JHSCs), and of health and safety representatives under OHSA

• roles of the ministry, Workplace Safety and Insurance Board (WSIB), and health and safety associations, and

• sources of information on occupational health and safety.

It is very important to create awareness regarding the duties and responsibilities of employers, supervisors and workers to our workplaces. Many senior managers do not know them and therefore do not propagate this knowledge to supervisors and workers. For example, a manager or supervisor must ensure that workers use prescribed protective equipment devices, must advise workers of potential and actual hazards, and must take every reasonable precaution in the circumstances for the protection of workers.

Managers and supervisors act on behalf of the employer, and hence have the responsibility to meet the duties of the employer as specified in the Act.

It’s important to understand the ‘reasonable precaution’ duty. In recently published data from the Ministry of Labour in Ontario (MOL), the most common orders issued by inspectors across all industries in the province were for the failure of the general duty to take every precaution reasonable in the circumstances for the protection of a worker [OHSA clause 25(2)(h)].

The MOL maintains a database where inspectors record their workplace visits, inspections, investigations and orders issued. Fatalities, critical injuries, complaints, work refusals and other incidents reported to the ministry are also recorded.

Many of these orders will result in prosecutions. Just check the MOL website (www.labour.gov.on.ca) to see the magnitude of convictions. The only defence against those charges is the defence of due diligence. So what does a supervisor need to do to demonstrate the due diligence?

Due diligence means that you have to take every precaution reasonable in the circumstances. This is a very high standard but not an absolute one. A supervisor does not have to take every precaution in the circumstances, but every precaution reasonable in the circumstances.

What does ‘reasonable’ mean? It is a very common word used in the legal profession. You’re likely familiar with some of the uses, such as ‘beyond a reasonable doubt’, and so on. However, what one person thinks is reasonable is not what someone else will think is reasonable.

But reasonableness is not subjective; it is objective. What is reasonable is not absolute perfection. It is a balanced, wise, prudent judgment that is understandable to others. One needs to imagine what a jury of your peer supervisors would think to do in the similar circumstances. Asking what your peers might do in the circumstances can lead to the use of industry standards, codes of practice and so on.

The due diligence standard is also very relative. What is ‘reasonable’ varies with the circumstances and the risk. The greater the risk, the greater the care that is reasonable. Risk is a combination of the probability that something will happen and the severity of the event if it happens. We tend to focus on high-probability events, but we should also be looking at high-severity accidents.

Greater awareness of duties and responsibilities should lead to safer workplace, which is the intention of Ontario’s forthcoming new regulations. 

Simon Fridlyand, P.Eng., of SAFE Engineering Inc., specializes in industrial health and safety concerns and PSR compliance. For more information, visit safeengineering.ca.