The first place an employer needs to look to determine its health and safety obligations are OHS statutes and regulations. Statutes typically spell out in broad strokes the basic principles of workplace safety and the rights and responsibilities of all stakeholders. For example, OHS acts require employers to provide proper training and supervision to workers but don’t specify exactly what they must do to fulfill that duty. The regulations go a step further and flesh out the kinds of training and supervision necessary for certain hazards or types of work. But although the regulations contain more detail than OHS statutes, they’re often a little vague on exactly what employers must do to comply with the requirements.
However, the trail doesn’t always end there. To determine the specific measures required to comply with certain OHS requirements, employers might have to look to other materials, such as “codes of practice,”which contain specific, practical guidance on the requirements for certain hazards and jobs.
Technically, codes of practice aren’t laws. But your company may still be required to create or adopt one for your workplace. And even if it doesn’t have to create or adopt a code, failing to do so can increase its risks of liability under OHS laws. This article will explain what the OHS laws say about codes of practice and how not creating your own code or following one issued or specified by the government can get your company into trouble. There’s also a chart at the end of the article that tells you what the OHS laws of each jurisdiction say about codes of practice.
What the Law Says
The federal, BC and QC OHS laws don’t refer to codes of practice. The remaining jurisdictions are split as to the type of codes of practice their OHS laws reference:
1 employer-created code jurisdiction. Under Alberta’s OHS laws, the government may require employers (as well as prime contractors and contractors) to establish a code of practice, which must provide practical guidance on the requirements of the regulations or the OHS code. For example, Sec. 44(1) of the OHS Code, 2009 requires employers to have codes of practice for confined spaces. The government can impose this requirement on a specific employer by issuing it a written order or on all employers through the OHS Code. In many cases, the government provides guidance to help employers create required codes of practice. For example, the government published guidelines for creating a code of practice for confined space entry.
7 government-created or -adopted code jurisdictions. The OHS laws in MB, NT, NU, ON, PEI, SK and YT give the government the authority to issue its own codes of practice or adopt a code created by an individual, employer, industry group or safety association. As in AB, the OHS laws in these jurisdictions specify that the purpose of codes of practice is to provide practical guidance on the requirements in the regulations. Governments typically issue codes of practice for jobs or hazards that are particularly dangerous. For example, Manitoba has issued codes of practice on confined spaces, explosives and working alone.
3 hybrid jurisdictions. NB, NL and NS take a hybrid approach. Their OHS laws state that the government can require employers either to:
- Establish their own codes of practice; or
- Adopt codes of practice specified by the government.
Contents of Codes of Practice
Whether a code of practice is created by an employer or issued by the government or a non-government organization, it should cover certain basic areas to provide the necessary guidance on complying with the relevant requirements. Nova Scotia’s Department of Labour and Workforce Development provides a comprehensive list of the things a code of practice should include:
- A description of the work;
- An analysis of the work from a health and safety perspective;
- A description of the human power, equipment and materials to be used;
- A step-by-step description of the work procedures to be used;
- Information on the control and safety measures to be used;
- A description of the responsibilities of the various workplace parties as they relate to the health and safety of the work;
- If explosives are to be used, the background, certification level and experience of all parties involved with the explosives;
- A contingency plan;
- An indication that other parties in the workplace, such as contractors, are aware of any health and safety effects the work may have on them and that those other parties have no objection to the work’s proceeding; and
- Any other information that’s relevant to the healthy and safe performance of the work.
In MB, NL, NT, NU, ON, PEI, SK and YT, the government must publish a notice providing certain information about an adopted code of practice, such as the approved code of practice, the provisions of the regulations to which it applies, the effective date of the code’s approval and where copies of the code can be obtained.
Compliance with Codes of Practice
Must your company comply with codes of practice under the OHS law? And what are the consequences if it doesn’t comply? Once again, the consequences of not complying with a code of practice vary by jurisdiction:
Non-compliance is an OHS violation. In NL and NS, the OHS laws specifically state that the failure to comply with a code of practice is an offence and that offence is in addition to any other violation of the regulatory requirement to which it relates. For example, say the regulations require employers to protect workers in confined spaces and the government has specified a code of practice on confined spaces. A company doesn’t comply with either the confined space requirement or the code of practice on confined spaces. The government could charge the company with two violations: 1) failure to comply with the confined space requirements; and 2) failure to comply with a government-specified code of practice.
In AB and NB, the failure to establish or adopt a code of practice when required to do so is a clearly a violation. But these provinces’ laws don’t directly indicate whether failing to comply with a code that’s already been adopted or established is also an OHS violation. However, the requirement to establish or adopt a code of practice logically implies a duty to comply with that code.
Non-compliance isn’t a violation. Of the seven jurisdictions that empower the government to issue or adopt codes of practice, the OHS laws in five of them—MB, ON, PEI, SK and YT—say that non-compliance with a code of practice is not itself a violation of the regulations. For example, Sec. 25(3) of Yukon’s OHS Act says that the “provisions of an approved code of practice do not have the force of law and the failure by any person to observe any provision of an approved code of practice is not of itself an offence.” The OHS laws in NT and NU are silent on whether non-compliance with a code of practice is itself a violation.
However, don’t rest easy yet if you’re in one of the above five jurisdictions or in NT and NU. A code of practice can be used as evidence against your company if it’s charged with violating a requirement in the safety regulations for which a code of practice has been issued. For example, Sec. 20(2) of Manitoba’s Workplace Safety and Health Act says that when “a person is charged with a breach of any provision of the regulations in respect of which the director has issued a code of practice, that code is admissible as evidence in a prosecution for the violation of the provision of the regulation.”
In other words, if your company doesn’t comply with a safety requirement for which the government has issued a code of practice, the prosecution can introduce the code of practice into evidence, arguing that the code establishes the reasonable steps an employer should take to comply with that requirement. So by failing to comply with the code of practice, the company didn’t exercise due diligence.
Bottom line: Even though non-compliance with a code of practice isn’t a violation in and of itself in the above jurisdictions, not complying with the code will certainly hurt the company’s case down the line and compromise its ability to prove due diligence if it’s ever charged with violating the related regulatory requirement.
Consequences of Compliance
If not complying with a code of practice might constitute a violation, you may be thinking, “So if my company complies with a code of practice, that’s proof that it complied with the related regulation, right?” In Ontario, the answer is definitely yes. Sec. 32.4(1) of Ontario’s OHS Act specifically says that compliance with an approved code of practice is deemed to be compliance with the regulatory requirement.
However, the answer is murkier in other parts of Canada. The OHS laws in the other jurisdictions that allow for codes of practice don’t address this issue directly. But it’s logical to infer that complying with a code of practice proves or at least constitutes evidence of the company’s compliance with the related regulatory requirement. Remember the purpose of codes of practice: to provide practical guidance on regulatory requirements. So if, say, the OHS law requires employers to protect workers in confined spaces and the code of practice provides guidance on what employers should do to fulfill that requirement, how could a company that complies with the code be in violation of the confined space requirement? In addition, even if compliance with a code of practice isn’t considered proof or evidence of compliance with a regulatory requirement, a court would almost certainly consider such compliance proof or evidence that the company exercised due diligence. Either way, there’s no downside to complying with a code of practice.
Insider Says: Even in Fed, BC and QC, where codes of practice aren’t addressed by OHS law, complying with codes of practice issued by other jurisdictions isn’t a bad idea. Proof that a company voluntarily complied with a code of practice from another jurisdiction on a regulatory requirement similar to one in the company’s jurisdiction will likely help the company argue that it exercised due diligence.
How to Comply
We’ve explained why it’s a good idea and perhaps a legal obligation to comply with codes of practice. So how do you ensure that your company does so? Take these three steps:
Step #1: Create or adopt code of practice. If your jurisdiction requires your company or employers in general to create or adopt a code of practice, make sure that the company does so. Likewise, if your jurisdiction issues a code of practice, make sure that the company adopts the code even if it’s not technically required to do so. The company should integrate the created or adopted code of practice into its OHS program and its specific requirements into the relevant workplace procedures and training.
Step #2: Follow its recommendations. Creating or adopting a code of practice is only the first step. Your company must also comply with the code’s procedures or recommendations. That is, you can’t simply get a copy of the code of practice from the government and file it away. You must ensure that its requirements are consistently complied with and take steps to discipline or correct infractions.
Step #3: Make available to workers. Having a code of practice for a particular hazard or job is pointless if workers are unaware of the code’s existence. So make sure that the code of practice is easily available to workers. For example, AB, NB and NL require employers to post codes of practice in a prominent place in the workplace. Alberta goes a step further and specifically requires employers to train all workers on a code of practice so that they can comply with its requirements. Of course, that requirement applies across Canada because all jurisdictions require employers to train workers on safety procedures—and that’s essentially what codes of practice are.
Companies benefit by complying with codes of practice by avoiding safety violations and proving due diligence if a violation occurs anyway. On the flip side, there are clear downsides to not complying with a code of practice. First, non-compliance may indicate that your company isn’t doing all it should to protect workers. Second, violating the code of practice could be a safety offence on its own and in addition to any offence for violating the underlying regulatory requirement. Last, even if violating a code isn’t an offence itself, non-compliance with a code will undermine the company’s argument that it exercised due diligence to comply with that regulatory requirement. So you need to know what the law in your jurisdiction says about codes of practice (see the chart), stay up to date on any codes the government has issued or adopted and ensure that your company complies with such codes.