The Cost of Non-Compliance

If people around your company aren’t talking about Bill C-45, they should be. The bill for an Act to Amend the Criminal Code of Canada recently became law. Bill C-45, also known as “Occupational Health & Safety Criminal Negligence Bill,” is important to those in industry because it creates the offence of occupational health and safety criminal negligence.

Article 3 of Bill C-45 states “Everyone who undertakes, or has the authority to direct how another person does work or performs a task, is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

It means that employers must take steps to provide a safe workplace for their workers. Employers who fail to do so may face charges of criminal negligence under the amended Criminal Code.

Criminal negligence occurs when an act or omission of an accused party shows reckless disregard for the safety of others where the accused is under a legal duty to act. Individuals who have been proven guilty may get up to 10 years in prison, and in the event of a death, up to life imprisonment.

Factors that are taken into account in determining sentencing also include the economic advantage gained by committing the crime — the more money the organization made, the higher the fine. The fines in the Criminal Code have been increased from $25,000 per count to $100,000 for individuals.

That’s one of the reasons that many companies have expressed serious concerns about the environment created by Bill C-45.

COMPLIANCE PROGRAM IS ESSENTIAL

What should be the best practices for corporations to address the issues created by Bill C-45? There is only one answer. Corporations must have a corporate compliance program in place that targets health and safety concerns.

Employers are advised to perform compliance audits to determine the status of current equipment compliance, workplace policies, practices and procedures. If the equipment used in a facility is not compliant with current applicable standards, or procedures are not compliant with occupational health and safety legislation, employers should keep in mind the following practical tips that will assist them in establishing a due diligence defence:

Have the equipment audited by a professional engineer specializing in this field

Have written policies, practices and procedures in place

Establish a program to monitor the workplace on a regular basis to ensure that employees are following the policies, practices and procedures, and

Provide appropriate training and education to employees so that they understand and carry out their work according to established polices, practices and procedures.

A lot of older equipment in today’s industrial facilities was not designed with safety in mind. At the time it was installed, safety was not a priority. Auditing and retrofitting this equipment could be a real challenge. A professional engineer undertaking this assignment must be familiar with the variety of current applicable standards and codes. Also, operators of the equipment must be consulted before any changes are implemented.

The following principles govern the retrofit:

Equipment shall be in compliance with current and applicable standards

The retrofit shall have no impact on the productivity of the machine

Changes must be acceptable to the operators and management

Compliance to current and applicable standards represents the best engineering practice and therefore the best due-diligence. Many older machines, for example, do not have “control reliable” safety components in place. Control reliable means that the failure of one safety component will not cause the failure of the entire safety system of the machine.

The degree of control reliability is established based on the hazard analysis of the machine. The higher the degree of exposure to the worker, the higher the level of redundancies employed in the machine. Control reliability concepts are a relatively new addition to Canadian standards, but they are here to stay. Older machinery was simply not designed or built with these principles in mind.

Many older machines do not have proper guarding in the point-of-operation area. An engineer providing recommendations must pay particular attention to the productivity issues of the machine. The most desirable solution is to provide an electronic/electrical device that signals the machine to stop when necessary. This electrical/electronic device (a light curtain or interlock, for example) must be a control reliable device. This solution, if possible, allows for maximum flexibility.

Changes, of course, must be acceptable to operators and management. Cost is the important matter. When assessing the cost issues, one should take into consideration the new liability issues brought about by Bill C-45. Now the cost of non-compliance is much greater than before.

There are numerous examples that upgrading facilities, if done professionally, actually increases productivity and can have a payback of two years or less. So it makes absolute sense to bring your facility into compliance. The reasons are clear: reduction in liability, increased productivity and short payback time.

The cost of doing nothing is just as obvious.

Safety File columnist Simon Fridlyand, P.Eng., is president of S.A.F.E. Engineering of Toronto, a company specializing in industrial health and safety issues and compliance. He can be reached at 416-447-9757 or at simonf@safeengineering.ca.