Bill 160: New Amendments to Ontario Occupational Health and Safety Legislation
On March 3, 2011, the Ontario Government introduced Bill 160, "An Act to amend the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997 with respect to occupational health and safety and other matters." Bill 160 follows the December 2010 report of a Government-appointed Expert Advisory Panel on Occupational Health and Safety. The Panel, chaired by former Ontario cabinet secretary Tony Dean, recommended 46 changes to how Ontario regulates occupational health and safety. Bill 160 is intended to implement some of the Panel’s recommendations. If passed into law, Bill 160 would result in a number of significant changes to the regulation of occupational health and safety in Ontario.
Below, we have summarized some of the key aspects of Bill 160. As this bill is in the early stages of the legislative process, we will be monitoring its development and will provide future updates on its status.
Training Standards and Approved Providers
Bill 160 would amend the Occupational Health and Safety Act (OHSA) to permit the Minister of Labour to establish standards for training programs and approve programs that meet those standards. The Minister would also be able to establish standards that a person would have to meet before becoming an "approved training provider" and approve a person as a training provider of one or more "approved training programs." The Minister would be required to publish these standards.
In establishing standards and programs and approving persons as training providers, the Minister would have additional powers. For example, the Minister could require a person seeking an approval to "provide information, records or accounts" required by the Minister pertaining to the approval. The Minister would also be able to "make such inquiries and examinations as he or she considers necessary." Finally, the Minister would be able to collect information about a worker’s successful completion of an approved training program.
Additional Training Provisions
At present, one worker member and one management member of the joint health and safety committee (JHSC) are required to be "certified" by the Workplace Safety and Insurance Board. Under Bill 160, the Minister could establish training and certification standards for JHSC members and require constructors or employers to ensure that health and safety representatives receive training that would enable them to "effectively exercise the powers and perform the duties of a health and safety representative."
Those individuals who are already certified under the Workplace Safety and Insurance Act, 1997 would not have to re-certify.
Currently, the JHSC has the power under the OHSA to make recommendations to a constructor or employer for the improvement of worker health and safety. Under Bill 160, if the JHSC did not reach consensus on recommendations, either the worker co-chair or the management co-chair would be able to make written recommendations that would include: (i) the co-chair’s recommendation; (ii) a summary of the position of committee members who support the recommendation; (iii) a summary of the position of committee members who do not support the recommendation; and (iv) information on how the committee attempted to reach consensus.
Under Bill 160, the Director of the OHSA would be able to establish written policies concerning the interpretation, administration and enforcement of the OHSA. These policies are expected to contain the Ministry of Labour’s position on the application of the OHSA, with inspectors being required to rely upon them in the course of their duties.
Under Bill 160, a "Prevention Council" would be established and responsible for providing advice to the Minister. This council would comprise worker and employer representatives and other persons with occupational health and safety experience. Essentially, the functions of the Prevention Council would be to advise the Minister on the appointment of a "Chief Prevention Officer," then to advise the Chief Prevention Officer on health and safety matters.
The Chief Prevention Officer would be responsible for: (i) developing a provincial occupational health and safety strategy; (ii) preparing an annual report on occupational health and safety; (iii) exercising powers or duties delegated by the Minister; (iv) providing advice to the Minister on the prevention of workplace injuries; and (v) providing advice to the Minister on proposed changes to the funding and delivery of services for the prevention of workplace injuries.
Finally, the Minister would have the power to designate an entity as a "safe workplace association" or as a "medical clinic or training centre specializing in occupational health and safety matters." Any such entity would be required to meet, and continue to abide by, certain "standards" established by the Minister. Any entity that is already designated under the WSIA would be deemed designated under Bill 160.
Under Bill 160, Section 50 of OHSA would be amended to allow a Ministry of Labour inspector to refer a matter to the Ontario Labour Relations Board regarding whether an employer has committed a reprisal against a worker. The inspector would only be permitted to do so where "the circumstances warrant," and where: (i) the matter alleged to have caused the reprisal was not dealt with by arbitration under a collective agreement or by the filing of a complaint with the Board; (ii) the worker consents to the referral; and (iii) the Director has established a policy on referrals. This proposed provision has the potential to increase the number of reprisal complaints to the Board, given that in certain circumstances an inspector on a routine audit would have the power to refer reprisal cases directly to the Board.
Implications for Employers
Bill 160 has only passed first reading on March 3, 2011 and has yet to be referred to legislative committee. As such, Bill 160 may or may not become law and/or may be significantly amended before it is enacted. However, it is important to note that the Ontario Government has showcased its "record" on occupational health and safety, and has indicated that it plans to implement all 46 recommendations of the Expert Advisory Panel within the next three to five years1. Accordingly, it may be that Bill 160 is only the first step in a more comprehensive overhaul of Ontario’s occupational health and safety system.
1 See February 2011 newsletter from the Council of Ontario Construction Association