Why Recordkeeping Is the Key to Compliance

A worker on a steel barge peers through a hatch and spots co-workers and a supervisor “all piled up on top of each other” inside a void space. A firefighter called to the scene removes his breathing apparatus to enter the small hatch and falls into the space before somebody can hand it back to him. The firefighter and a worker sustain serious injuries but survive; 3 workers and the supervisor die due to the oxygen-deficient atmosphere in the void space. The BC company is convicted of confined space violations and other offences. A key criticism: the company lacked a formal OHS program [WCAT-2008-02573]. THE PROBLEM In most parts of Canada, companies are required to adopt an OHS policy stating their commitment to health and safety and establish an OHS program to implement that policy. OHS programs typically include, among other things, the identification of hazards, development of safe work rules and procedures to protect workers from these hazards, training of workers on the rules and procedures and steps to ensure that workers use their training on the job. Above all, they involve maintaining thorough records of illnesses, injuries and measures taken to prevent them.The barge case is a good example of what can happen when a company doesn’t meet these requirements. THE EXPLANATION Like most other jurisdictions, BC requires employers to implement an OHS program [OHS Regs., Sec. 3.3]. The problem for the company in the barge case was that, at  best, it had an informal OHS program. The company’s position was that it didn’t need a formal program because it had a relatively small number of workers, who took care of each other and were “like family.” For example, the less experienced workers relied on the more experienced workers, who provided informal training and modeled safe work practices. Workers also discussed safety issues among themselves. But the court ruled that this informal safety program wasn’t enough. Sec. 3.3 required a more developed OHS program, especially giventhe fact that barge was such a dangerous workplace. For example, the hazards of confined space hazards are well known in the industry. In fact, the company had been cited before for violating confined space requirements. But the company an outdated confined space entry program based on old regulations. And it didn’t adequately train workers on confined space hazards and procedures. The lack of adequate training and safe work procedures—along with writteh records—that a formal OHS program would have provided set the stage for this tragic incident, concluded the Workers’ Comp Appeals Tribunal, ruling that “this sort of informal program, particularly in a hazardous workplace, falls short of being an effective, overall program for complying with the Act and the Regulation.” OHS Programs & Due Diligence Having a formal OHS program is also the key to due diligence, even in parts of Canada such as AB, QC and YT where the laws don’t specifically mention OHS programs. Explanation: In 1978, the Supreme Court of Canada decided the Sault Ste. Marie case, which is best known for establishing the due diligence defence. The Court ruled that a company can avoid liability for a regulatory offence, such as a safety or environmental violation, if it can show that it exercised “due diligence”—that is, that it took all reasonable steps to comply with the law and prevent the violations. The Court went on to say that one of the most important factors a court will consider in evaluating a company’s due diligence defence is whether it had a “proper system to prevent commission of the offence.” Cases decided since Sault Ste. Marie have made it clear that a “proper system” is a formal OHS program that establishes policies and procedures to control hazards and written records measuring the effectiveness of those efforts. THE LESSON The key lesson from the barge case is that, regardless of how many workers are employed by a company, if it has any workers at all, they need to be protected from workplace hazards through a formal OHS program that covers hazard identification, safety rules and procedures, training, inspections, discipline for safety infractions, etc. Granted, a company with a small workforce and simple operations may need a less complicated OHS program than a large corporation with thousands of workers doing complex and hazardous work. But even a small company still needs a formal OHS program. Although not required by the OHS laws, government guidelines, voluntary standards such as CSA Z1000 and best practice call for the implementation of an OHS management system with four key components:

• Plan—Identify your OHS obligations, assess hazards and rate their severity;
• Do—Control the hazards identified via the use of engineering controls training, safe work procedures and PPE;
• Check—Regularly monitor the OHS management system’s effectiveness through scheduled inspections, incident investigations, periodic audits and recordkeeping; and
• Act—Implement corrective actions and get upper management directly involved in reviewing and improving the system.