Let’s play a little game. Your CEO calls you into his office to discuss “an important safety matter.” When you get there, he expresses discontent with the company’s Joint Health and Safety Committee. Maintaining the Committee is costing the company too much time and money, he complains. Then he drops a bomb shell. “As a result, the board has decided to eliminate the Safety Committee, effective immediately.”
Your jaw drops. You instantly recognize the idiocy of what’s being proposed. But how would you go about trying to get the CEO to change his mind? How would you persuade your CEO and board of directors of the need for having a Joint Health and Safety Committee (JHSC)?
Chances are, your CEO would never try anything like this, especially if your workers are unionized and the JHSC is part of your collective bargaining agreement. But the scenario is important to consider because it raises a question that goes to the essence of the safety program. Just why do you need a JHSC? The obvious answer is that that the JHSC can significantly improve health and safety. But this might not make much of a dent with the CEO—especially if the committee as it’s currently constituted has a poor track record and is making only a marginal contribution to safety performance.
The second best reason to have a JHSC, even an ineffective one, and the argument that’s most likely to wash with CEO, is that the law requires it. But you need to be careful about this. The legal compulsion for having a JHSC is more than just the risk of being cited for not having one. What you need to understand is that the JHSC is at the very heart of due diligence; even if it doesn’t prevent an accident, it might prevent liability resulting from it. This article will explain the real legal significance of the JHSC.
Clarifying Our Terms
A JHSC is a body consisting of at least two members representing workers and management. However, smaller companies might be required to have one person serve as a health and safety representative rather than a committee. Unless indicated otherwise, this article will use the term “JHSC” interchangeably to refer both to committees and health and safety representatives.
JHSCs & the Law
Canadian OHS law is based on a theory called the “Internal Responsibility System” (IRS) which recognizes that it’s the people in the workplace—the stakeholders—who are in the best position to identify, assess and either eliminate or control hazards in the workplace. Stakeholders include not just management but the workers themselves. To carry forward the principles of the IRS, there must be an institution in place that gives workers influence over workplace conditions. That institution is the JHSC.
The Mandatory JHSC Argument
This is the reason that most of the provincial OHS laws require employers to establish a JHSC at the workplace depending on how many workers they have and what industry they’re in. The usual scheme:
- 0 to 4 workers: Neither JHSC nor representative required (Exception: Federally regulated employers must designate a representative under the Canadian Labour Code);
- 5 to 20 workers: Representative required; and
- More than 20 workers: JHSC required.
Insider Says: There are some provincial variations. For example, AB and QC don’t require employers to establish a JHSC or representative unless the government orders them to do so.
The Weakness of the Argument
When a law tells you to do something, naturally you should do it. But not all CEOs think this way. Keep in mind that in some boardrooms, fines and other consequences of non-compliance are treated as costs of doing business. So returning to the scenario at the start of the story, telling a CEO that getting rid of the JHSC is illegal might not have the impact you expect. “So what?,” a CEO might ask. “What’s the worst thing that can happen to us if we got caught?”
This is a cynical question. But it’s one you can’t dismiss. What would happen to a company that fails to meet its obligation to have a JHSC?
In theory, the company would be at risk of penalties, including prosecution and fine. But lawyers tell the Insider that in the real world, the OHS inspector who discovered the offence would most likely issue a work order first (unless he felt the offence was deliberate). Then, if the company failed to comply, it would fine the company. In other words, a company would probably get a chance to correct the problem without incurring a fine.
Of course, if the inspector thought the violation was deliberate, you could get hit with an immediate fine or a stop-work order. But even this wouldn’t represent a crippling blow.
The bottom line: The risk of being cited for not having a JHSC might not seem like too much of a downside, especially to a cynical CEO.
The Due Diligence Argument
To make a compelling legal justification for a JHSC, you must go beyond what the OHS laws say and consider how they’re interpreted. To be more precise, you must discuss the JHSC in the context of due diligence.
Due diligence is the standard regulators and judges use to decide whether to hold companies—and their CEOs—responsible for safety offences. Defendants in an OHS prosecution, in other words, can avoid liability for safety violations if they can prove they exercised due diligence to follow the law and prevent the incident. To prove due diligence, defendants must show that they took all reasonable precautions in the circumstances to guard against foreseeable risks.
What does any of this have to do with having a JHSC? Answer: The failure to have a JHSC when it’s required by law kills the company’s chances of making out a due diligence defence. And, since offences resulting in serious injury or fatality involve the risk of major fines—including personal liability of officers and directors, losing out on due diligence is of crucial concern to upper management.
Why does the absence of a JHSC undermine a due diligence defence? Explanation: The link between the JHSC and due diligence goes all the way back to R. v. Sault Ste. Marie, the case that first established the due diligence defence. In finding that a company had used due diligence to prevent a pollution offence, the Canadian Supreme Court stressed that it had developed a “proper system to prevent commission of the offence.” The “proper system” requirement remains at the heart of the due diligence defence, notes Toronto OHS lawyer Cheryl Edwards.
The Saulte Ste. Marie case doesn’t specifically mention the JHSC. But subsequent cases have drawn the association between a JHSC and having a proper system.
Example: A Saskatchewan worker loses an arm in a machine accident. The company is charged with three OHS offences, including failure to guard the machine. The court rules that the company used due diligence and dismisses all charges. The company had a proper safety program which included an active JHSC that held regular meetings, the court points out [R. v. James Metals Inc.].
The James Metals case is no aberration. On the contrary, lawyers tell the Insider that they’ve been able to successfully defend companies and individuals against OHS charges by proving that there was an active and effective JHSC at the workplace. Regulators have also referred to the association between due diligence and the JHSC. For example, guidelines from the BC Workers’ Compensation Board spell out: “If you, as an employer, have all the program elements required by OHS laws and regulations [including, presumably, a JHSC] in effect and working well, you will generally be acting with due diligence.”
The C-45 Factor
Last but not least, the presence of an active JHSC gives a company—and a CEO—a better chance of defending against a charge of criminal negligence under Bill C-45. Under that law, a person who controls work can be guilty of criminal negligence if he fails to take “reasonable steps” to protect workers and others affected by the work against bodily harm (Canadian Criminal Code, Sec. 217.1).
Although the law doesn’t specify what constitutes reasonable steps, lawyers, including those who helped author the bill, tell the Insider that it includes, at a minimum, compliance with all OHS laws. Thus, a prosecutor could use the failure to establish a mandatory JHSC as evidence of a corporation or individual’s guilt under C-45.
JHSCs require a significant investment of time, money and other company resources. But the improvements an effective committee can make to health and safety more than justify this investment. But if this isn’t enough to win over upper management, you may need to invoke the law and the risk of liability to defend the JHSC. When and if this becomes necessary, keep in mind that the legal value of the JHSC is rooted in due diligence.
Next month, in Part 2 of this series, we’ll look at JHSC membership requirements and how to determine if you’re in compliance with them.
Cheryl Edwards: Stringer Brisbin Humphrey, Management Lawyers, 110 Yonge St., Ste. 1100, Toronto, ON M5C 1T4.
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R. v. Saulte Ste. Marie (City), (1978), 85 D.L.R. (3d) 161 (S.C.C.).
R. v. James Metals Inc., (1999), 43 W.C.B. (2d) 20 (Sask. Prov. Ct.)