By Jamie Alyce Jurczak, Partner and Peter Mueller, Articling Student-at –Law, Taylor McCaffrey LLP, Labour and Employment Law Practice Group
On April 1, 2014, amendments to The Workplace Safety and Health Act (the “Act”) and Regulations came into force. While some changes may not have a direct effect on the day-to-day operations of an employer’s business, others may have a more significant impact.
Set out below we have highlighted a number of the more significant changes to the Act and Regulations that ought to be of concern for most employers to varying degrees. Note this is not a complete review of all the amendments, which can be found by following this link: http://web2.gov.mb.ca/laws/regs/w210e.php.
If you do have any questions or concerns about the impact of these amendments on your workplace, please contact us and we would be pleased to assist you.
Stop Work Orders
A safety and health officer now has the power to issue one stop work order that could apply to all or some of an employer’s workplaces in Manitoba. This change is a significant one considering that, before these amendments, an officer would have had the burdensome task of issuing a separate order for each of an employer’s workplaces. Now, an officer can potentially bring multiple workplaces to a halt more quickly than before, which clearly could have a significant impact on an employer’s business operations.
Requirement for Safety and Health Representatives and Committees
Workplaces with 5 or more workers will be now required to have a safety and health representative. This requirement previously applied only to workplaces with 10 or more workers. With respect to safety and health committees, the obligation to form such a committee now extends to workplaces that are seasonal in nature. This requirement is triggered where there at least 20 workers who are involved or are expected to be involved in work that is expected to last for at least 90 days.
Information requests from Committees, Representatives or Workers
An employer now has an obligation disclose certain information at the request of not only a committee or a representative, but also of a worker where there is no committee or representative. The type of information that can be requested now includes a summary of a harassment investigation, subject to limitations that seek to protect the identity of the people involved in the matter. In addition, where the committee/representative makes recommendations, there is now a positive obligation on employers to respond to the recommendation within 30 days.
There have also been changes regarding the employer’s obligations to train committee members/representatives and to ensure appropriate time off is granted for committee work.
An employer now has more conditions to meet if it wants to assign work to a second worker after the first worker has refused to do that work. The obligations imposed on an employer include having to advise the second worker, in writing, of the first worker’s refusal, the reasons for the refusal, the second worker’s rights to refuse dangerous work and the reason why, in the employer’s opinion, the work does not constitute a danger to the safety or health of the second worker. Further, an employer must have discharged its obligations with respect to inspecting the dangerous condition and taking the necessary steps to remedy the dangerous condition.
Administrative penalties used to flow exclusively from a breach of an improvement order. The amendments expand the scope of activity that can attract such penalties. Now, failure to comply with the Act and its regulations, where a lack of compliance involves or is likely to involve an imminent risk of serious physical or health injury to a worker or other person, can lead to administrative penalties. These penalties may also apply to certain circumstances involving previously discontinued stop work orders, a failure to maintain compliance with an improvement order and discriminatory action against a worker.
Of importance to employers is the fact that, while the scope of application of the administrative penalty provisions has expanded, the amendment provides that when a penalty is imposed, the employer may not be charged with an offence in respect of the same matter. Keep in mind that this immunity is not always available, such as when the offending activity continues even after an administrative penalty has been paid.
There have also been changes to the Administrative Penalty Regulation, clarifying the kinds of measures that will attract penalties, and the amount of the penalties for various infractions. The fines range from $1,000 to $5,000.
Enforcing Administrative Penalties
When an employer is liable to pay an administrative penalty, the government now has additional tools for recovering the debt owed to it in the form of a lien and charge on every estate or interest in real and personal property of the party liable for the penalty. The scope of the property subject to the government’s lien and charge includes property acquired after the administrative penalty’s imposition.
The Director of the Workplace Safety and Health Branch has the power to issue reports to the public that disclose details of improvement orders, stop work orders and administrative penalties. Reports are permitted to disclose information that would otherwise be considered personal under The Freedom of Information and Protection of Privacy Act.
The New Chief Prevention Officer
A Chief Prevention Officer (“CPO”) position is created by the amendments and is mainly responsible for providing advice to the Minister and making recommendations regarding the prevention of workplace injury and illness. The CPO will release a public annual report that analyzes serious workplace incidents, provides information on the progress being made by government measures to prevent workplace injury and illness and analyzes the effectiveness of prevention activities. The CPO, in making recommendations, is required to consult with key players like organizations representing workers and organizations representing employers.
Changes to the General Regulations
The changes to the General Workplace Safety and Health Regulation focus on changes to the procedure and considerations involved in obtaining an exemption from any provision of a regulation; employer responsibilities in relation to training “new workers”; and the procedure for obtaining permission to have one committee cover more than one of an employer’s workplaces.