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BILL NO. 62
Government Bill
3rd Session, 56th General Assembly
Nova Scotia
44 Elizabeth II, 1995
An Act to Amend Chapter 320
of the Revised Statutes, 1989,
the Occupational Health and Safety Act
The Honourable Guy A. C. Brown
Minister of Labour
Halifax
Printed by Queen's Printer for Nova Scotia
Explanatory Notes
Clause 1 sets out the Internal Responsibility System upon which the Occupational Health
and Safety Act is based.
Clause 2 adds a number of new defined terms and amends a number of existing definitions.
Clause 3 clarifies the application of the Act to Her Majesty in right of the Province and
expands the application of the Act to Her Majesty in right of Canada.
Clause 4
(a) expands the information that shall be exchanged between the Occupational
Health and Safety Division (Division) and other bodies;
(b) adds a reference to health and safety representative (representative)
necessary as a result of other changes to the Act; and
(c) requires the Division to annually submit a report on a review of the Act to the
Advisory Council on Occupational Health and Safety (Advisory Council).
Clause 5
(a) allows persons to be appointed as officers who are not appointed in
accordance with the Civil Service Act, who are employees in the field of occupational
health and safety with other Provincial Government departments, municipal governments,
other provincial governments, the federal government, bodies that are formed by a number
of governments or agencies of governments, or any of the above; and
(b) permits officers who are appointed in accordance with the Civil Service Act
to be designated as Chief Compliance Officers.
Clause 6
(a) adds a reference to a representative that is necessary as a result of other
changes to the Act;
(b) requires the employer to provide training to members of joint occupational
health and safety committees (committees) as prescribed by the regulations; and
(c) requires the employer to establish an occupational health and safety policy
(policy) and occupational health and safety program (program) where required pursuant
to the Act or the regulations.
Clause 7 provides for duties that must be carried out by a contractor, as defined in the Act.
Clause 8 provides for duties that must be carried out by a constructor, as defined in the
Act.
Clause 9 makes Section 11 of the Act gender-neutral.
Clause 10
(a) adds a reference to a representative that is necessary as a result of other
changes to the Act; and
(b) changes the location in the Act of an existing requirement for an employee to
report a dangerous condition.
Clause 11
(a) makes Section 13 of the Act gender-neutral; and
(b) adds a reference to a representative that is necessary as a result of other
changes to the Act.
Clause 12
(a) provides for duties that must be carried out by an owner, as defined in the
Act;
(b) provides for duties that must be carried out by a provider of an occupational
health or safety service;
(c) provides for a duty that must be carried out by an architect or an engineer
who gives advice or seals or stamps documents;
(d) makes it an offence for an architect or engineer to give advice or seal or
stamp documents negligently or incompetently and endanger a person at a workplace
thereby; and
(e) provides for a means of determining the degree of responsibility carried by
a person upon whom a duty is imposed pursuant to the Act.
Clause 13 makes it mandatory for the Minister of Labour (Minister) to establish an
Advisory Council and to appoint to it people who have knowledge and experience relating to the
protection and promotion of occupational health and safety.
Clause 14 provides for the appointment of
(a) alternate members of the Advisory Council and the terms of their
appointment; and
(b) sub-committees of the Advisory Council and their powers.
Clause 15 expands the authority to pay members of the Advisory Council their expenses,
to alternates and members of subcommittees.
Clause 16 clarifies that the Advisory Council may give advice to the Minister whether
requested to do so or not.
Clause 17
(a) requires the employer to prepare a written occupational health and safety
policy where
(i) five or more employees are regularly employed by an employer other
than a constructor or contractor,
(ii) five or more employees are regularly employed directly by a
constructor or contractor and those five or more employees do not include
employees for whose services the constructor or contractor has contracted,
(iii) the regulations require an occupational health and safety policy, or
(iv) an officer so orders,
and specifies the consultation to be carried out in development of the policy and minimum
requirements for the contents of the policy; and
(b) requires the employer to prepare a written occupational health and safety
program where
(i) twenty or more employees are regularly employed by an employer other
than a constructor or contractor,
(ii) twenty or more employees are regularly employed directly by a
constructor or contractor and those twenty or more employees do not include
employees for whose services the constructor or contractor has contracted, or
(iii) the regulations require an occupational health and safety program,
and specifies the minimum requirements for the contents of the program.
Clause 18 provides that the Chief Compliance Officer may consult with the employer and
employees at a workplace to obtain their views regarding whether a committee should be formed
at the workplace and the Chief Compliance Officer, rather than the Minister as the Act now
provides, may require that it be formed.
Clause 19
(a) provides for the frequency of committee meetings;
(b) provides that the Chief Compliance Officer may make determinations on
certain matters regarding committees when the committee cannot agree on them;
(c) requires that the time an employee takes to undergo training prescribed by
the regulations be deemed work time for which the employee shall be paid;
(d) repeals a posting requirement and reenacts it elsewhere in the Act;
(e) requires that a committee be co-chaired by a member who represents
employees and one who is selected by the other members, unless the committee determines
another arrangement for chairing in its rules of procedure; and
(f) requires committees to include in their rules of procedure an annual
determination of the method of selecting the persons who will chair the committee and
hold the positions for the coming year.
Clause 20
(a) adds to the functions of committees that the committee must
(i) co-operatively identify hazards and systems for responding to them and
audit compliance with health and safety requirements, and
(ii) advise the employer regarding a policy or program required pursuant
to the Act or regulations, rather than establish the program,
and requires that the Chief Compliance Officer carry out certain duties rather than the
Director; and
(b) repeals a subsection where the content is reenacted and expanded upon
elsewhere in the Act.
Clause 21
(a) requires the selection of a representative where the number of persons
employed at the workplace is five or more;
(b) provides that at a workplace where fewer than five persons are employed, the
Chief Compliance Officer may consult with the employer and employees at the workplace
to obtain their views regarding whether a representative should be selected at the
workplace, and require that one be selected;
(c) provides that a representative is entitled to paid time off from work to carry
out the duties of a representative;
(d) sets out the functions of a representative;
(e) requires an employer who receives written recommendations from a
committee or representative to reply to the recommendations;
(f) requires employers to post information regarding committee members and
representatives and the most recent minutes of committee meetings;
(g) requires that a committee or a representative, employer or employee who so
requests in writing be provided with an annual summary of data relating to the employer,
where the Workers' Compensation Act applies to the workplace;
(h) requires that reports of inspections made and reports of workplace
occupational health or safety monitoring or tests taken at the workplace be made available
to the committee, representative and employees;
(i) requires an employer to reply to a request for other information of a health
or safety nature;
(j) provides for observation by an employee of workplace occupational health or
safety monitoring and the taking of samples or measurements that relate to the health or
safety of employees at a workplace; and
(k) requires that the employer post an order, compliance notice, appeal notice
or decision and deliver a copy to the committee or representative where there is one.
Clause 22
(a) removes the requirement for the officer to investigate only in consultation with
the Director;
(b) adds a reference to representative to a provision that is being reenacted in
a different location in the Act;
(c) gives to an employee who exercises the employee's right to refuse to work, the
right to accompany the officer, committee or representative on a physical inspection of the
workplace to ensure others understand the reasons for the refusal;
(d) clarifies that payment to the refusing employee, for the period of time spent
accompanying the officer, will depend on whether the refusal is a reasonable one;
(e) adds a cross-reference necessary as a result of the addition of another
subsection; and
(f) clarifies that a refusal must be reasonable, but need not be the subject of a
complaint adjudication, in order for the employee to be paid.
Clause 23 makes Section 23 of the Act gender-neutral.
Clause 24 repeals a Section, the contents of which are reenacted elsewhere in the Act.
Clause 25
(a) expands the list of activities against which an employer is prohibited from
taking discriminatory action against an employee to include
(i) the association of the employee with a representative, seeking the
selection of a representative and performing the functions of a representative,
(ii) seeking information by the employee or the employee taking the role of
an observer, and
(iii) the employee giving information to a representative;
(b) repeals the procedure for dealing with alleged discriminatory action by
relying on arbitration pursuant to a collective agreement or the filing of a complaint with
the adjudication committee established pursuant to the regulations; and
(c) changes a cross-reference required as a result of other changes to the Act.
Clause 26 provides
(a) that a complaint of discriminatory action or failure to pay pay or benefits due
pursuant to the Act shall be
(i) investigated by an occupational health and safety officer who identifies
any contravention or amount due,
(ii) where a complaint is not settled within 10 days after the officer reports,
addressed by enabling an order of the Director of Labour Standards or, if the
employee could file a grievance under a collective agreement, addressed through
the grievance arbitration process,
(iii) except where the employee who complains of discriminatory action
could use the grievance arbitration process under a collective agreement, addressed
by enabling an appeal of the decision of the Director of Labour Standards to the
Labour Standards Tribunal, and in some cases the matter may be referred directly
to the Labour Standards Tribunal after the officer has reported;
and
(b) for the procedures and powers of the Director of Labour Standards and the
Labour Standards Tribunal.
Clause 27 removes the reference to an adjudication committee and makes other wording
changes necessary as a result of this change.
Clause 28 gives officers additional powers.
Clause 29
(a) permits an officer to seize without a warrant or court order in certain
instances and provides a process to be followed where the officer chooses to exercise this
power; and
(b) gives an officer the powers, authorities and immunities of a peace officer as
defined in the Criminal Code when carrying out duties pursuant to the Act.
Clause 30 provides that
(a) unless an officer makes an inquiry in private
(i) the employer is required to give the representative or employee member
of the committee, where there is one, the opportunity to accompany the officer
during a physical inspection of the workplace, and
(ii) a representative of the employer has such a right,
but if either is unavailable, the officer is empowered to carry out the inspection without
such persons;
(b) the entitlement in the present law to pay protection for an employee who
accompanies an officer on an inspection is limited, in the case of a work refusal under
Section 22, to situations where the refusal is reasonable;
(c) adds a reference to representative that is necessary as a result of other
changes to the Act; and
(d) requires officers to provide employers with reports of inspections of the
workplace and of workplace occupational health or safety monitoring or tests taken at the
workplace by officers so that they may meet their responsibilities pursuant to the Act to
provide these to committees, representatives and employees.
Clause 31 provides that an officer may make an inquiry in private.
Clause 32 makes Section 30 of the Act gender-neutral.
Clause 33
(a) requires the confirmation of an oral order in writing and provides that an
oral order is effective pursuant to the Act before it is confirmed in writing; and
(b) repeals an existing requirement that the officer provide a written order only
if requested to do so, or that the officer consult with the Director, replacing elimination
of the Director in these cases with an appeal process provided for elsewhere in the Act.
Clause 34 removes the requirement for the officer to consult with the Director before
making a determination that something is unsafe or does not comply with prescribed standards.
Clause 35
(a) gives the officer the power in certain circumstances to order an employer,
owner, contractor or constructor to obtain an expert report or have tests carried out;
(b) requires that a person against whom an order is made submit a compliance
notice in certain cases and provides that compliance is achieved when an officer
determines that it has been achieved; and
(c) provides for an appeal by a complainant of a decision of an officer not to
issue an order, supplementing the right of other parties to appeal orders, provided
elsewhere in the Act, and provides that the decision of an officer in this case is not final.
Clause 36 substitutes the Chief Compliance Officer for the Director in exercising powers
regarding the use of chemicals in the workplace.
Clause 37
(a) substitutes the Chief Compliance Officer for the Director in exercising powers
regarding lists of chemicals that employers are required to prepare; and
(b) adds a reference to a representative that is necessary as a result of other
changes to the Act.
Clause 38 substitutes the Chief Compliance Officer for the Director in exercising powers
regarding information respecting chemical substances.
Clause 39 corrects a Section reference necessary as a result of other changes to the Act.
Clause 40 corrects a Section reference necessary as a result of other changes to the Act.
Clause 41 provides that, except in accordance with the Act and the regulations, an expert
who makes an examination at the request of an officer shall not disclose in any way the
information acquired, furnished, obtained, made or received under the powers exercised in doing
so.
Clause 42 adds a reference to a representative that is necessary as a result of other
changes to the Act.
Clause 43
(a) substitutes the Chief Compliance Officer for the Director in exercising powers
regarding a code of practice; and
(b) removes the requirement to post a code of practice and reenacts it elsewhere
in the Act.
Clause 44
(a) removes the requirement to make certain information available at the
workplace; and
(b) provides for a more comprehensive list of information that must be posted or
made available at the workplace; and
(c) provides the criteria that shall be met when anything is required to be posted
pursuant to the Act or the regulations.
Clause 45 removes references to the Metalliferous Mines and Quarries Regulation Act and
the Coal Mines Regulation Act that are unnecessary as a result of the repeal of these statutes.
Clause 46 removes a provision permitting a certificate to be admitted as prima facie
evidence and substitutes a more comprehensive provision covering the admission of a broader
range of documents into evidence.
Clause 47 makes Section 45 of the Act gender-neutral.
Clause 48
(a) gives the power of arrest without warrant in certain instances to a police
officer when the police officer has reasonable and probable grounds to believe that an
order issued pursuant to subsection 31(3) is being contravened, and provides for the
process to be followed subsequent to such an arrest;
(b) clarifies that an accused in a prosecution shall prove due diligence was taken
by the accused to comply with specified duties; and
(c) provides that a prosecution for an offence pursuant to the Act shall not be
commenced more than two years after the later of
(i) the date on which the offence was committed,
(ii) the date on which evidence of the offence first came to the attention of
an officer.
Clause 49
(a) adds to the list of offences as a result of other changes made to the Act;
(b) increases the maximum fine to $250,000 from $10,000;
(c) increases the maximum imprisonment to two years from twelve months;
(d) increases the fine for a continuing offence to $25,000 per day from $1,000 per
day; and
(e) provides for an additional fine in an amount equal to monetary benefits
accrued where a court is satisfied that monetary benefits have accrued to an offender.
Clause 50 provides for other punishments in addition to fines and imprisonment.
Clause 51 clarifies the circumstances in which an employer shall not be liable for the
wrongdoing of a person who exercises management functions for the employer.
Clause 52
(a) permits an application to be made to the Chief Compliance Officer for a
deviation for a workplace from regulations that apply to the workplace, and provides for
the process, including communication of the application, that shall be undertaken in
authorizing such a deviation;
(b) establishes an appeal procedure that permits appeals to the Chief Compliance
Officer by aggrieved persons, as defined in the Act, from
(i) an order made by an officer pursuant to the Act or the regulations,
(ii) the decision of an officer not to issue an order, or
(iii) any decision for which a right of appeal to the Chief Compliance
Officer is provided in the regulations;
(c) establishes a further appeal procedure that permits appeals to an Appeal
Panel by an aggrieved person from an order or decision of the Chief Compliance Officer
made pursuant to the Act or the regulations;
(d) provides for the establishment in consultation with management and labour,
of lists of persons from which members of an Appeal Panel are chosen;
(e) provides for the powers, procedures and composition of an Appeal Panel, and
the role of the Director in an Appeal Panel; and
(f) provides for immunity for an Appeal Panel or a member or the chair of an
Appeal Panel, the Chief Compliance Officer, the Labour Standards Tribunal or a member
of the Labour Standards Tribunal, a Labour Standards officer or the Director of Labour
Standards or an officer from a claim for damages arising from acts done in good faith.
Clause 53 adds regulation-making powers.
Clause 54 repeals the Coal Mines Regulation Act.
Clause 55 repeals the Metalliferous Mines and Quarries Act.
Clauses 56, 57 and 58 set out the effective dates of the amendments contained in the Bill.
An Act to Amend Chapter 320
of the Revised Statutes, 1989,
the Occupational Health and Safety Act
Be it enacted by the Governor and Assembly as follows:
1 Chapter 320 of the Revised Statutes, 1989, the Occupational Health and Safety Act,
is amended by adding immediately after Section 1 the following Section:
1A The foundation of this Act is the Internal Responsibility System which
(a) is based on the principle that
(i) employers, contractors, constructors, employees and self-employed persons at a workplace, and
(ii) the owner of a workplace, a supplier of goods or provider of an
occupational health or safety service to a workplace or an architect or
professional engineer, all of whom can affect the health and safety of persons
at the workplace,
share the responsibility for the health and safety of persons at the workplace;
(b) assumes that the primary responsibility for creating and maintaining
a safe and healthy workplace should be that of each of these parties, to the extent
of each party's authority and ability to do so;
(c) includes a framework for participation, transfer of information and
refusal of unsafe work, all of which are necessary for the parties to carry out their
responsibilities pursuant to this Act and the regulations; and
(d) is supplemented by the role of the Occupational Health and Safety
Division of the Department of Labour, which is not to assume responsibility for
creating and maintaining safe and healthy workplaces, but to establish and clarify
the responsibilities of the parties under the law, to support them in carrying out
their responsibilities and to intervene appropriately when those responsibilities are
not carried out.
2 Section 2 of Chapter 320 is amended by
(a) striking out clause (a) and substituting the following clauses:
(a) "aggrieved person" means an employer, constructor, contractor,
employee, self-employed person, owner, supplier, provider of an occupational
health or safety service, architect, engineer, or union at a workplace who is directly
affected by an order, decision or determination for which a right of appeal to the
Chief Compliance Officer or Appeal Panel is provided in this Act or the regulations;
(aa) "Appeal Panel" means an Appeal Panel established pursuant to this
Act;
(ab) "Chief Compliance Officer" means a Chief Compliance Officer
appointed pursuant to this Act;
(b) adding "or herself" immediately after "himself" in the third line of clause (c);
(c) adding immediately after clause (c) the following clause:
(ca) "contractor" means a person who contracts for work to be performed
at the workplace of the contractor, but does not include a dependent contractor or
a constructor;
(d) striking out "his" in the third line of clause (e) and substituting "that
person's";
(e) striking out "person" in the sixth line of clause (e);
(f) striking out "he" in the sixth line of clause (e) and substituting "the person";
(g) striking out "that person" in the seventh line of clause (e) and substituting "the
other";
(h) striking out "that person" in the eighth and ninth lines of clause (e) and
substituting "the person";
(i) striking out "that person" in the ninth line of clause (e) and substituting "the
other";
(j) adding immediately after clause (f) the following clause:
(fa) "Director of Labour Standards" means the Director of Labour
Standards within the meaning of the Labour Standards Code;
(k) adding immediately after clause (i) the following clauses:
(ia) "Labour Standards officer" means an officer appointed pursuant to the
Labour Standards Code;
(ib) "Labour Standards Tribunal" means the Labour Standards Tribunal
within the meaning of the Labour Standards Code;
(l) striking out "and includes the Director" in the second and third lines of clause
(l) and substituting ", except as the context otherwise requires, and includes the Director
and a Chief Compliance Officer";
(m) adding immediately after clause (l) the following clauses:
(la) "owner" includes a trustee, receiver, mortgagee in possession, tenant,
lessee or occupier of lands or premises used as a workplace and a person who acts
for, or on behalf of, an owner as an agent or delegate;
(lb) "police officer" means
(i) a member of the Royal Canadian Mounted Police, or
(ii) a member or chief officer of a police force appointed pursuant
to Section 14 or 17 of the Police Act;
(lc) "policy" means an occupational health and safety policy required
pursuant to Section 17A;
(1d) "practicable" means possible given current knowledge, technology and
invention;
(le) "program" means an occupational health and safety program required
pursuant to Section 17B, unless the context otherwise requires;
(n) adding immediately after clause (m) the following clauses:
(ma) "reasonably practicable" means practicable unless the person on whom
a duty is placed can show that there is a gross disproportion between the benefit of
the duty and the cost, in time, trouble and money, of the measures to secure the
duty;
(mb) "regularly employed" includes seasonal employment with a predictably
recurring period of employment that exceeds four weeks, unless otherwise
established by regulation or ordered by an officer;
(o) adding immediately after clause (n) the following clause:
(na) "representative" means a health and safety representative selected
pursuant to this Act;
and
(p) striking out "his" in the second line of clause (o) and substituting "that
person's".
3 Section 3 of Chapter 320 is repealed and the following Section substituted:
3 (1) This Act binds Her Majesty in right of the Province.
(2) This Act applies to
(a) every agency of the Government of the Province;
(b) all matters within the legislative jurisdiction of the Province; and
(c) Her Majesty in right of Canada, every agency of the government
of Canada and every other person whose workplace health and safety
standards are ordinarily within the legislative jurisdiction of the Parliament
of Canada, to the extent that Her Majesty in right of Canada submits.
4 Subsection 6(1) of Chapter 320 is amended by
(a) adding "and information" immediately after "statistics" in the fourth line of
clause (b);
(b) adding ", health and safety representatives" immediately after "committees"
in the fourth line of clause (c);
(c) striking out "and" immediately after clause (e); and
(d) adding immediately after clause (e) the following clause:
(ea) annually, submit to the Advisory Council a report on a review of this
Act; and
5 Section 7 of Chapter 320 is amended by
(a) adding "(1)" immediately after the Section number;
(b) adding ", subject to subsection (2)," immediately before "such" in the third
line; and
(c) adding the following subsections:
(2) Notwithstanding the requirement in subsection (1) to appoint officers
in accordance with the Civil Service Act, the Minister may appoint officers, to
administer and enforce this Act and the regulations, who are employees of
(a) the federal government or an agency thereof;
(b) another provincial government or an agency thereof;
(c) another Provincial Government department or an agency of the
Provincial Government;
(d) a municipality within the meaning of the Municipal Affairs Act
or an agency thereof; or
(e) an agency created by any combination of the governments of this
Province, other provinces or the federal government,
and who work in the field of occupational health and safety.
(3) The Minister shall designate one or more of the officers who are
appointed pursuant to subsection (1) as Chief Compliance Officers.
6 (1) Clause 9(1)(f) of Chapter 320 is amended by striking out "his" in the first line
and substituting "the employer's".
(2) Subsection 9(2) of Chapter 320 is amended by
(a) adding", or the health and safety representative, where one has been
selected at the workplace" immediately after "workplace" in the fourth line of clause
(a);
(b) striking out "and" immediately after clause (b);
(c) adding immediately after clause (b) the following clause:
(ba) provide such additional training of committee members as may
be prescribed by the regulations;
(d) striking out the period at the end of clause (c) and substituting "; and";
and
(e) adding immediately after clause (c) the following clause:
(d) where an occupational health and safety policy or occupational
health and safety program is required pursuant to this Act or the regulations,
establish at the workplace the policy or program.
7 Chapter 320 is further amended by adding immediately after Section 9 the following
Section:
9A Every contractor shall take every precaution that is reasonable in the
circumstances to ensure
(a) the health and safety of persons at or near a workplace;
(b) that the activities of the employers and self-employed persons at the
workplace are coordinated;
(c) communication between the employers and self-employed persons at
the workplace of information necessary to the health and safety of employees;
(d) that the measures and procedures prescribed pursuant to this Act and
the regulations are carried out at the workplace; and
(e) that every employee, self-employed person and employer performing
work at the workplace complies with this Act and the regulations.
8 Section 10 of Chapter 320 is amended by adding immediately after clause (a) the
following clauses:
(aa) ensure that the activities of the employers and self-employed persons at the
project are co-ordinated;
(ab) ensure communication between the employers and self-employed persons at
the project of information necessary to the health and safety of employees, and facilitate
communication with any committee or representative required for the project pursuant to
this Act or the regulations;
9 Section 11 of Chapter 320 is amended by
(a) striking out "him" in the second line of clause (a) and substituting "the
supplier";
(b) striking out "his" in the second line of clause (b) and substituting "the
supplier's"; and
(c) striking out "him" in the second line of clause (c) and substituting "the
supplier".
10 Section 12 of Chapter 320 is amended by
(a) adding "(1)" immediately after the Section number;
(b) striking out "his" in the second line of clause (b) and substituting "the
employee's";
(c) striking out "his" in the first and in the second lines of clause (b) and
substituting in each case "the employee's";
(d) adding ", or the health and safety representative, where one has been selected
at the workplace" immediately after "workplace" in the third line of clause (d); and
(e) adding the following subsection:
(2) Where an employee believes that any condition, device, equipment,
machine, material or thing or any aspect of the workplace is or may be dangerous
to the employee's health or safety or that of any other person at the workplace, the
employee
(a) shall immediately report it to a supervisor;
(b) may, where the matter is not remedied to the employee's
satisfaction, report it to the committee or the representative, if there is one;
and
(c) shall, where the matter is not remedied to the employee's
satisfaction, report it to the Division.
11 Section 13 of Chapter 320 is amended by
(a) striking out "his" in the second and in the third lines of clause (a) and
substituting in each case "the self-employed person's"; and
(b) striking out clause (b) and substituting the following clause:
(b) co-operate with any employer, joint occupational health and safety
committee or health and safety representative which may be found at a place at
which the self-employed person conducts an undertaking, to protect the self-employed person's own health and safety and that of other persons who may be
affected by the undertaking.
12 Chapter 320 is further amended by adding immediately after Section 13 the
following Sections:
13A Every owner shall
(a) take every precaution that is reasonable in the circumstances to provide
and maintain the land or premises
(i) in a manner that ensures the health and safety of persons at or
near the workplace, and
(ii) in compliance with this Act and the regulations; and
(b) give to the employer at the workplace the information that is
(i) known to the owner or that the owner could reasonably be
expected to know, and
(ii) necessary to identify and eliminate or control hazards to the
health or safety of persons at the workplace.
13B Every person or body who, for gain, is a provider of an occupational health
or safety service shall take every precaution that is reasonable in the circumstances to
(a) ensure that no person at a workplace is endangered as a result of the
provider's activity; and
(b) ensure, where the service involves providing information, that the
information provided is accurate and sufficiently complete to enable the recipient
to make a competent judgement on the basis of the information.
13C (1) An architect, as defined in the Architects Act, who gives advice or
affixes the architect's seal to documents or a professional engineer, as defined in the
Engineering Profession Act, who gives advice or stamps documents shall take every
precaution that is reasonable in the circumstances to ensure that a person who is likely
to rely on the advice, seal or stamp will not be in contravention of this Act or the
regulations as a result of such reliance.
(2) Where
(a) an architect, as defined in the Architects Act, gives advice or
affixes the architect's seal to documents; or
(b) a professional engineer, as defined in the Engineering Profession
Act, gives advice or stamps documents,
negligently or incompetently and a person at a workplace is endangered thereby, the
architect or professional engineer contravenes this Act.
13D (1) A specific duty imposed by this Act or the regulations does not limit the
generality of any other duty imposed by this Act or the regulations.
(2) Where a provision of this Act or the regulations imposes a duty or
requirement on more than one person, the duty or requirement is meant to be imposed
primarily on the person with the greatest degree of control over the matters that are the
subject of the duty or requirement.
(3) Notwithstanding subsection (2), but subject to subsection (5), if the
person with the greatest degree of control fails to comply with a duty or requirement
referred to in subsection (2), the other person or persons on whom the duty or
requirement lies shall, where possible, comply with the provision.
(4) If the person with the greatest degree of control complies with a
provision described in subsection (2), the other persons are relieved of the obligation to
comply with the provision only
(a) for the time in which the person with the greatest degree of
control is in compliance with the provision;
(b) if simultaneous compliance by more than one person would
result in unnecessary duplication of effort and expense; and
(c) if the health and safety of persons at the workplace is not put at
risk by compliance by only one person.
(5) If the person with the greatest degree of control fails to comply with a
provision described in subsection (2) but one of the other persons on whom the duty or
requirement is imposed complies with the provision, the other persons, if any, to whom the
provision applies are relieved of the obligation to comply with the provision in the
circumstances set out in clauses (a) to (c) of subsection (4), with any necessary
modifications.
13 Section 14 of Chapter 320 is amended by striking out "may" in the first and in the
third lines and substituting in each case "shall".
14 (1) Subsection 15(2) of Chapter 320 is amended by striking out "Chairman" in
the first and in the third lines and substituting in each case "Chair".
(2) Section 15 of Chapter 320 is further amended by adding immediately after
subsection (2) the following subsections:
(2A) The Minister may appoint one or more alternate members of the
Council.
(2B) An alternate member of the Council shall act in place of a member of
the Council.
(2C) A member or alternate member of the Council holds office during the
term prescribed in that person's appointment and may be re-appointed.
(2D) The Council may, with the approval of the Minister, appoint one or
more subcommittees of the Council and a subcommittee shall perform any of the
functions described in Section 17, as determined by the Council.
(2E) For greater certainty, a person who is not a member of the Council
may be a member of a subcommittee of the Council.
(3) Subsection 15(3) of Chapter 320 is amended by striking out "co-chairmen"
in the second and third lines and substituting "co-chairs".
15 Section 16 of Chapter 320 is repealed and the following Section substituted:
16 The members of the Council or a subcommittee of the Council shall be paid
their reasonable expenses incurred by them in the course of carrying out their duties for
the Council.
16 Section 17 of Chapter 320 is amended by
(a) adding ", including providing recommendations, giving advice and
monitoring and reporting on occupational health and safety throughout the Province"
immediately after "safety" in clause (b); and
(b) striking out all the words after "safety" in the second line of clause (d) to the
end of the clause.
17 Chapter 320 is further amended by adding immediately after Section 17 the
following Sections:
17A (1) Where
(a) five or more employees are regularly employed by an employer
other than a constructor or contractor;
(b) five or more employees are regularly employed directly by a
constructor or contractor and those five or more employees do not include
employees for whose services the constructor or contractor has contracted;
(c) the regulations require an occupational health and safety policy;
or
(d) an officer so orders,
the employer shall prepare and review, at least annually, a written occupational health
and safety policy, in consultation with the committee or representative, if there is one.
(2) Where a workplace is not required pursuant to this Act or the regula-
tions to have a committee, consultation on the development of the policy shall be carried
out and shall include discussion of the proposed policy at one or more workplace health
and safety meetings involving the employees.
(3) The policy shall express the employer's commitment to occupational
health and safety and shall include
(a) the reasons for the employer's commitment to health and safety;
(b) the commitment of the employer to co-operate with the employees
in pursuing occupational health and safety; and
(c) the responsibilities of the employer, supervisors and other
employees in fulfilling the commitment required pursuant to clause (b).
17B (1) Where
(a) twenty or more employees are regularly employed by an
employer other than a constructor or contractor;
(b) twenty or more employees are regularly employed directly by a
constructor or contractor and those twenty or more employees do not include
employees for whose services the constructor or contractor has contracted;
or
(c) the regulations require an occupational health and safety
program,
the employer shall establish and maintain a written occupational health and safety
program, in consultation with the committee or representative, if there is one, that is
adapted to the circumstances of the organization for the purpose of implementing the
employer's policy, this Act and the regulations.
(2) The program shall include
(a) provision for the training and supervision of employees in
matters necessary to their health and safety and the health and safety of other
persons at the workplace;
(b) provision for the preparation of written work procedures
required to implement safe and healthy work practices, including those
required pursuant to this Act, the regulations or by order of an officer, and
identification of the types of work for which the procedures are required at
the employer's workplace;
(c) provision for the establishment and continued operation of a
committee required pursuant to this Act, including maintenance of records
of membership, rules of procedure, access to a level of management with
authority to resolve health and safety matters and any information required
pursuant to this Act or the regulations to be maintained in relation to a
committee;
(d) provision for the selection and functions of a representative
where required pursuant to this Act, including provision for access by the
representative to a level of management with authority to resolve health and
safety matters;
(e) a hazard identification system that includes
(i) evaluation of the workplace to identify potential hazards,
(ii) procedures and schedules for regular inspections,
(iii) procedures for ensuring the reporting of hazards and the
accountability of persons responsible for the correction of hazards,
and
(iv) identification of the circumstances where hazards are to
be reported by the employer to the committee or representative, if any,
and the procedures for doing so;
(f) a system for workplace occupational health and safety
monitoring, prompt follow-up and control of hazards identified;
(g) a system for the prompt investigation of hazardous occurrences
to determine their cause and the action needed to prevent a recurrence;
(h) maintenance of records and statistics, including reports of
occupational health and safety inspections and occupational health and safety
investigations, with provision for making them available to persons entitled
to receive them pursuant to this Act; and
(i) provision for monitoring the implementation and effectiveness of
the program.
(3) The employer shall make available a copy of the program
(a) to the committee or representative, if there is one; and
(b) on request, to an employee at the workplace.
18 Subsection 18(2) of Chapter 320 is repealed and the following subsection
substituted:
(2) At a workplace where fewer than twenty persons are regularly employed, the
Chief Compliance Officer may
(a) consult with the employer and employees at the workplace regarding
whether a joint occupational health and safety committee should be formed at the
workplace; and
(b) require that a joint occupational health and safety committee be
established and such a committee shall be established where the Chief Compliance
Officer so requires.
19 (1) Subsection 19(2) of Chapter 320 is amended by striking out "he" in the fourth
line and substituting "the employer".
(2) Section 19 of Chapter 320 is further amended by adding immediately after
subsection (3) the following subsections:
(3A) A committee shall meet at least once each month unless
(a) a different frequency is prescribed by the regulations; or
(b) the committee alters the required frequency of meetings in its
rules of procedure.
(3B) Where a committee alters the required frequency of meetings by its
rules of procedure and the Chief Compliance Officer is not satisfied that the
frequency of meetings is sufficient to enable the committee to effectively perform its
functions, the frequency of meetings shall be as determined by the Chief Compliance
Officer.
(3) Subsection 19(4) of Chapter 320 is repealed and the following subsection
substituted:
(4) Where agreement is not reached on
(a) the size of the committee;
(b) the designation of employees to be members; or
(c) rules of procedure,
a determination shall be made by the Chief Compliance Officer.
(4) Subsection 19(5) of Chapter 320 is amended by
(a) adding ", to take any training prescribed by the regulations"
immediately after "committee" in the third line; and
(b) striking out "his" in the third line and substituting "the employee's".
(5) Subsection 19(6) of Chapter 320 is repealed.
(6) Section 19 of Chapter 320 is further amended by adding immediately after
subsection (7) the following subsections:
(8) Unless a committee determines another arrangement for chairing the
committee in its rules of procedure, two of the members of the committee shall
co-chair the committee, one of whom shall be selected by the members who
represent employees and the other of whom shall be selected by the other members.
(9) The rules of procedure established pursuant to subsection (7) shall
include an annual determination of the method of selecting the person or persons
who shall
(a) chair the committee; and
(b) hold the position for the coming year.
20 (1) Subsection 20(1) of Chapter 320 is amended by
(a) re-lettering clause (a) as clause (aa); and
(b) adding immediately before clause (aa) the following clause:
(a) the co-operative
(i) identification of hazards to health and safety and effective
systems to respond to the hazards, and
(ii) auditing of compliance with health and safety
requirements in the workplace;
(c) repealing clause (d) and substituting the following clause:
(d) advising the employer regarding a policy or program required
pursuant to this Act or the regulations and making recommendations to the
employer, the employees and any person for the improvement of the health
and safety of persons at the workplace;
(d) striking out "Director" each time it occurs in the third line of clause (e)
and substituting in each case "Chief Compliance Officer"; and
(e) striking out "Director" in the second line of clause (f) and substituting
"Chief Compliance Officer".
(2) Subsection 20(2) of Chapter 320 is repealed.
21 Chapter 320 is further amended by adding immediately after Section 20 the
following Sections:
20A (1) At a workplace where no committee is required pursuant to Section 18
and where the number of persons employed is five or more, the employer shall cause the
employees to select at least one health and safety representative from among the
employees at the workplace who are not connected with the management of the workplace.
(2) At a workplace where fewer than five persons are employed, the Chief
Compliance Officer may
(a) consult with the employer and employees at the workplace
regarding whether a representative should be selected at the workplace; and
(b) require that a representative be selected by the employees from
among the employees at the workplace who are not connected with the
management of the workplace, and such a representative shall be selected
where the Chief Compliance Officer so requires.
(3) Where an order or notice respecting the selection of a representative
is given pursuant to subsection (2), the employer shall ensure that the representative is
selected and functioning in accordance with this Act within fifteen days of receipt of the
order or notice.
(4) An employee who is a representative is entitled to such reasonable time
off from work as is necessary to carry out the employee's functions as a representative,
and such time off is deemed to be work time for which the employee shall be paid by the
employer at the applicable rate.
(5) It is the function of the representative to be involved, on behalf of the
employees together with the employer, in occupational health and safety in the workplace
and, without restricting the generality of the foregoing, includes
(a) the co-operative
(i) identification of hazards to health and safety and effective
systems to respond to the hazards, and
(ii) auditing of compliance with health and safety
requirements in the workplace;
(b) receipt of and co-operation with the employer in the investigation
and prompt disposition of matters and complaints with respect to workplace
health and safety;
(c) participation in inspections, inquiries and investigations
concerning the occupational health and safety of the employees and,
including participation in an inspection referred to in Section 29;
(d) advising on individual protective devices, equipment and clothing
which, complying with this Act and the regulations, are best adapted to the
needs of the employees;
(e) advising the employer regarding a policy or program required
by this Act or the regulations and making recommendations to the employer,
the employees and any person for the improvement of the health and safety
of persons at the workplace; and
(f) performing any other duties assigned to the representative by the
Chief Compliance Officer or by agreement between the employer and the
employees or the union, or as are established by the regulations.
20B An employer who receives written recommendations from a committee or
representative and a request in writing to respond to the request, shall respond in writing
to the committee or representative within twenty-one days, and the response shall
(a) indicate acceptance of the recommendations; or
(b) give reasons for the disagreement with any recommendations that the
employer does not accept,
or, where it is not reasonably practicable to provide a response before the expiry of the
twenty-one day period, provide a reasonable explanation for the delay and indicate to the
committee or representative when the response will be forthcoming.
20C The employer shall post
(a) and maintain the current names of the committee members or the
representative, as the case may be, and the means of contacting them; and
(b) promptly, the minutes of the most recent committee meeting and ensure
they remain posted until superseded by minutes of the next committee meeting.
20D A committee at a workplace, a representative or an employee or an employer
at a workplace who so requests in writing, shall receive, if the Workers' Compensation Act
applies to the workplace, an annual summary of data relating to the employer.
20E (1) An employer shall notify the committee or representative, where there
is one, of the existence of reports of inspections made and reports of workplace
occupational health or safety monitoring or tests taken at the workplace, by an officer or
the employer or at the request of an officer or the employer, and on request the employer
shall make the reports available to the committee or the representative, as the case may
be.
(2) An employer shall make available to an employee at a workplace, on
request, reports of inspections made and reports of workplace occupational health or
safety monitoring or tests taken at the workplace by an officer or the employer or at the
request of an officer or the employer.
(3) Within twenty-one days of receiving a request in writing from the
committee, representative or, where there is no committee or representative, an employee
at a workplace, for any information of a health or safety nature other than that specified
in subsection (1), the employer shall respond in writing and the response shall
(a) provide the requested information; or
(b) give reasons for not providing the information, in whole or in
part,
and where it is not reasonably practicable to provide a response before the expiry of the
twenty-one day period, provide a reasonable explanation for the delay and indicate to the
committee, representative or employee when the response will be forthcoming.
20F (1) Every employer shall permit the employee selected pursuant to
subsection (2) to observe workplace occupational health or safety monitoring and the
taking of samples or measurements that relate to the health or safety of employees at the
workplace, unless the monitoring or taking of samples or measurements takes place
(a) on a continuous basis, except to observe the initial setup of the
workplace occupational health or safety monitoring process and to be
informed and observe the monitoring where there has been a malfunction of
the monitor or alteration in the process;
(b) in a location that is remote from the workplace and is part of the
regular task of a person employed at the location; or
(c) during an emergency situation,
and time spent by the employee in such activities is deemed to be work time for which the
employee shall be paid by the employer at the applicable rate.
(2) Where there is
(a) a committee or representative at a workplace, the employee who
observes workplace occupational health or safety monitoring and the taking
of samples or measurements shall be selected by the committee or
representative, as the case may be; or
(b) no committee or representative at a workplace, the employee who
observes workplace occupational health or safety monitoring and the taking
of samples or measurements shall be selected by the employees.
(3) Every employer shall provide reasonable notice to an observer of the
commencement of the occupational health or safety monitoring and of the taking of
samples or measurements and shall provide access to a workplace for the purpose of the
observation.
(4) Where an observer requests, the procedure for occupational health or
safety monitoring and the taking of samples or measurements shall be identified and
explained to the observer.
(5) Where an owner, constructor or contractor performs occupational
health or safety monitoring or takes samples or measurements that relate to the health or
safety of employees at the workplace,
(a) the owner, constructor or contractor shall provide reasonable
notice to all employers at the workplace of the commencement of the
occupational health or safety monitoring and of the taking of samples or
measurements; and
(b) the requirements of subsections (1) to (4) apply.
20G Where
(a) an officer makes an order pursuant to this Act or the regulations
against an employer;
(b) a compliance notice is required of an employer pursuant to subsection
(1) of Section 32B; or
(c) an appeal is initiated pursuant to Section 51B or 51C or decided
pursuant to Section 51B or 51E,
the employer shall
(d) post the order, compliance notice, appeal notice or decision; and
(e) deliver a copy of the order, compliance notice, appeal notice or
decision to the committee or representative, if there is one.
22 (1) Subsection 22(1) of Chapter 320 is amended by
(a) striking out "his" in the second line and substituting "the employee's";
(b) striking out "he" in the second line and substituting "the employee";
(c) striking out "his" in the third line and substituting "the employee's";
(d) striking out "employees" in the fourth line and substituting "person";
and
(e) striking out "in consultation with the Director" in the first and second
lines of clause (c).
(2) Section 22 of Chapter 320 is further amended by adding immediately after
subsection (1) the following subsections:
(1A) Where an employee exercises the employee's right to refuse to work
pursuant to subsection (1), the employee shall,
(a) immediately report it to a supervisor;
(b) where the matter is not remedied to the employee's satisfaction,
report it to the committee or the representative, if there is one; and
(c) where the matter is not remedied to the employee's satisfaction
after the employee has reported pursuant to clauses (a) and (b), report it to
the Division.
(1B) At the option of the employee, the employee who refuses to do any act
pursuant to subsection (1) may accompany an officer or the committee or
representative, if any, on a physical inspection of the workplace or part thereof
being carried out, for the purpose of ensuring others understand the reasons for the
refusal.
(1C) Notwithstanding subsection (3) of Section 29, an employee who
accompanies an officer, the committee or a representative, as provided in
subsection (1B), shall be compensated in accordance with subsection (4) of Section
22, but the compensation shall not exceed that which would otherwise have been
payable for the employee's regular or scheduled working hours.
(3) Subsection 22(2) of Chapter 320 is amended by
(a) adding ", and subsection (1B)" immediately after "any" in the second
line;
(b) striking out "his" in the third line and substituting "the";
(c) striking out "him" in the third line and substituting "the employee"; and
(d) striking out "he" in the fifth line and substituting "the employee".
(4) Subsection 22(3) of Chapter 320 is amended by
(a) striking out "him" in the second and in the third lines and substituting
in each case "the employee";
(b) striking out "he would have" in the fourth line and substituting "would
have been";
(c) striking out "he" in the fourth line and substituting "the employee"; and
(d) striking out "his" in the fourth line and substituting "the employee's".
(5) Subsection 22(4) of Chapter 320 is amended by
(a) adding "reasonably" immediately after "has" in the first line;
(b) striking out ", if the employee's refusal is upheld, pay him" in the third
and fourth lines and substituting "pay the employee";
(c) striking out "him" in the fifth line and substituting "the employee";
(d) striking out "he would have received had he" in the fifth and sixth lines
and substituting "would have been received had the employee"; and
(e) striking out all the punctuation and words after "met" in the seventh
line to the end of the subsection and substituting a period.
23 Section 23 of Chapter 320 is amended by striking out "his" in the first line and in
the first line of clause (c) and substituting in each case "the employee's".
24 Section 24 of Chapter 320 is repealed.
25 (1) Subsection 25(2) of Chapter 320 is amended by
(a) striking out "he" in the third line and in the second line of clause (a)
and substituting in each case "the employee";
(b) striking out "his" in the fourth line of clause (a);
(c) adding immediately after clause (a) the following clause:
(aa) of the association of the employee with a representative or
because the employee has sought the selection of a representative or
performed functions as a representative;
(d) adding immediately after clause (b) the following clause:
(ba) the employee has sought access to information to which the
employee is entitled by this Act or the regulations, or has been assigned the
role of observer pursuant to Section 20F;
and
(e) adding ", a representative" immediately after "committee" in the second
line of clause (d).
(2) Subsection 25(3) of Chapter 320 is repealed.
(3) Subsection 25(4) of Chapter 320 is amended by striking out "subsection (3)"
in the second line and substituting "Section 26".
26 Section 26 of Chapter 320 is repealed and the following Sections substituted:
26 (1) An employee who alleges that
(a) an employer has failed to pay wages, salary, pay or a benefit
entitlement under
(i) subsection (5) of Section 19, subsection (4) of Section 20A,
subsection (1) of Section 20F, subsections (1C), (3) or (4) of Section
22 or subsection (3) of Section 29, or
(ii) the regulations; or
(b) an employer or a union has taken or threatened to take
discriminatory action contrary to subsection (2) of Section 25,
may, within thirty days, make a complaint in writing to an officer.
(2) Where an officer receives a complaint pursuant to subsection (1), the
officer shall investigate and advise the employer, the employee, the union, if any, and the
Director of Labour Standards in writing whether,
(a) in the opinion of the officer, there has been a contravention of a
provision referred to in subsection (1) and the measures which, in the
officer's opinion, are necessary to achieve compliance with the provision; and
(b) the employee is subject to a collective agreement under which the
employee would be entitled to file a grievance.
(3) Where
(a) the employee is not subject to a collective agreement under which
the employee would be entitled to file a grievance; or
(b) the complaint is against a union,
at any time up to thirty days after the officer delivers the advice referred to in subsection
(2) to the employer, or the union, against whom the complaint was made, the employee
may,
(c) where the officer has advised that there has been a contravention
of a provision referred to in subsection (1), and the employee agrees, in
whole or in part, with the advice of the officer but the employer or union has
not resolved the complaint to the satisfaction of the employee, refer an
unresolved complaint to the Director of Labour Standards; or
(d) where the employee disagrees with the advice of the officer or
does not wait for the advice of the officer, refer the complaint to the Labour
Standards Tribunal.
(4) Upon receiving a written referral of a complaint from an employee
pursuant to clause (c) of subsection (3), the Director of Labour Standards shall summarily
review the matter and may, no less than fourteen days after an employer or a union has
received the advice of the officer referred to in subsection (2),
(a) issue an order specifying the provision of this Act or the
regulations that has been contravened and, where the Director of Labour
Standards decides that discriminatory action has been taken against an
employee contrary to subsection (2) of Section 25, requiring, by a specified
date,
(i) the employer to reinstate the employee pursuant to the
same terms and conditions under which the employee was formerly
employed,
(ii) the employer to pay to the Labour Standards Tribunal any
wages, salary, pay or other benefits that the employee would have
earned but for the discriminatory action,
(iii) that any reprimand or other references to the matter in the
employer's records on the employee be removed,
(iv) the reinstatement of the employee to the union and the
payment by the union to the employee of any wages, salary, pay or
other benefits that the employee would have earned but for the
discriminatory action,
(v) the employer or the union to do the things that, in the
opinion of the Director of Labour Standards, are necessary to secure
compliance with this Act and the regulations;
(b) notify the complainant that
(i) the Director of Labour Standards will not issue an order
with respect to all or part of the complaint, and
(ii) the complainant may refer the complaint, or part of it,
directly to the Labour Standards Tribunal, and how and when the
complainant may do so; or
(c) where a complaint has already been referred to the Labour
Standards Tribunal and where the Director of Labour Standards determines
it is appropriate, notify the complainant that the Director of Labour
Standards will make no finding.
(5) An employee who has referred a complaint to the Director of Labour
Standards and is unsatisfied with the result may, within ten days after receiving a
notification from the Director of Labour Standards pursuant to subsection (4), make a
complaint to the Labour Standards Tribunal.
(6) An employer or a union against whom the Director of Labour
Standards has made an order pursuant to subsection (4) may, within ten days after the
service of the order, file an appeal with the Labour Standards Tribunal in accordance with
regulations made pursuant to the Labour Standards Code.
(7) Where an employee who makes a complaint pursuant to subsection (1)
is subject to the terms of a collective agreement under which the employee would be
entitled to file a grievance, and where the matter complained of pursuant to subsection (1)
is not remedied to the satisfaction of the employee within fourteen days of the delivery to
the employer of the officer's advice referred to in subsection (2), the employee shall have
the complaint against the employer dealt with by final and binding settlement in the
grievance arbitration process under the collective agreement.
(8) Where a collective agreement referred to in subsection (7) establishes
a limitation period for the filing of a grievance, the limitation period is deemed to begin
to run the day after the employee receives the officer's advice referred to in subsection (2),
but the employee may proceed directly to the grievance process without waiting for the
advice of the officer.
(9) The officer's advice referred to in subsection (2) shall, where the
officer has concluded that the employer is
(a) subject to the terms of a collective agreement under which the
employee would be entitled to file a grievance, include
(i) the information contained in subsections (7) and (8), and
(ii) advice to the employee to promptly consult the union; and
(b) not subject to the terms of a collective agreement under which the
employee would be entitled to file a grievance, or that the complaint is
against a union, include the information contained in subsections (3), (4), (5)
and (6) and forms prescribed by the regulations for use in referring a
complaint to the Director of Labour Standards or the Labour Standards
Tribunal.
26A Where an order or notice is issued by the Director of Labour Standards or
the Labour Standards Tribunal in respect of a matter complained of pursuant to
subsection (1) of Section 26, except as otherwise provided in this Act or the regulations,
the provisions of the Labour Standards Code and regulations apply, with the necessary
changes, to a determination of the complaint, the enforcement of any order, the nature and
priority of any lien, charge, mortgage, trust or debt due as a result of an order of the
Director of Labour Standards or the Labour Standards Tribunal and the recovery of any
amount, and
(a) in addition to the powers provided for in the Labour Standards Code,
the Labour Standards Tribunal may issue an order in the terms set out in clause (a)
of subsection (4) of Section 26; and
(b) an order of the Director of Labour Standards or the Labour Standards
Tribunal is final and conclusive and not open to review or appeal except as
provided in the Labour Standards Code.
26B (1) The officer and the Director of Labour Standards may assist one
another, or be assisted by a Labour Standards officer, in the performance of a function
or the making of a decision which the officer or the Director of Labour Standards is
otherwise authorized to make pursuant to Section 26, and where any such assistance
occurs, neither the officer nor the Director of Labour Standards is disqualified by reason
of bias on the basis of these grounds from performing any function or making any decision
which the officer or the Director of Labour Standards is otherwise authorized to make
pursuant to Section 26.
(2) In making an order under subsection (4) of Section 26, the Director of Labour
Standards may rely solely on the evidence obtained in the investigation conducted by the officer
pursuant to subsection (2), but the Director of Labour Standards is not required to do so.
27 (1) Subsection 27(1) of Chapter 320 is amended by striking out "or order made
by the adjudication committee" in the first and second lines.
(2) Subsection 27(2) of Chapter 320 is amended by striking out "or order" in the
first and in the third lines.
(3) Subsection 27(3) of Chapter 320 is amended by striking out "or order" in the
first and fourth lines.
28 Section 28 of Chapter 320 is amended by
(a) striking out "he" in the third line of clause (a) and the fourth line of clause (d)
and substituting in each case "the officer";
(b) adding immediately after clause (b) the following clause:
(ba) require the production of any documents or records that may be
relevant to the investigation of a complaint pursuant to subsection (1) of Section 26,
and remove them temporarily for the purpose of making copies;
(c) adding immediately after clause (d) the following clause:
(da) inspect, take samples and conduct tests of samples, including tests in
which a sample is destroyed, of any material, product, tool, equipment, machine or
device being produced, used or found at the place of employment for which the
officer shall be responsible until the material, product, tool, equipment, machine or
device is returned to the person being inspected unless a sample has been
destroyed;
(d) striking out "him" in the second line of clause (f) and substituting "the
officer";
(e) adding immediately after clause (f) the following clause:
(fa) in any inspection, examination, inquiry or test, be accompanied and
assisted by or take with the officer a person having special, expert or professional
knowledge of any matter;
and
(f) striking out "his" in the second line of clause (g) and substituting "the
officer's".
29 Chapter 320 is further amended by adding immediately after Section 28 the
following Sections:
28A (1) While acting under the authority of this Act, an officer may, without a
warrant or court order, seize anything that is produced to the officer or that is in plain
view if the officer reasonably believes that this Act or the regulations have been
contravened and that the thing will afford evidence of the contravention.
(2) The officer may remove the thing seized or may detain it in the place
in which it was seized.
(3) The officer shall inform the person from whom the thing is seized as to
the reason for the seizure and shall give the person a receipt for it.
(4) The officer shall bring the thing seized under the authority of this
Section before a justice or, if that is not reasonably possible, shall report the seizure to a
justice.
(5) An officer who seizes anything under this Section shall deal with it in
the same way as if it were seized pursuant to the authority of a search warrant issued
pursuant to the Summary Proceedings Act.
28B An officer, in carrying out duties pursuant to this Act, has and may exercise
in any part of the Province all the powers, authorities and immunities of a peace officer
as defined in the Criminal Code (Canada).
30 (1) Subsection 29(1) of Chapter 320 is repealed and the following subsection
substituted:
(1) Subject to Section 29A, where an officer makes an inspection of a
workplace pursuant to the powers conferred upon the officer pursuant to Section 28,
(a) the employer shall give the representative or an employee
member of the committee, where there is one; or
(b) a representative of the employer shall have,
the opportunity to accompany the officer during the officer's physical inspection of the
workplace, or any part or parts thereof, but where such person or persons are
unavailable, the officer may carry out the inspection in the company of a person selected
in accordance with subsection (2) or, where necessary, may do so without accompaniment.
(2) Subsection 29(2) of Chapter 320 is amended by
(a) striking out "Where" in the first line and substituting "Subject to Section
29A, where";
(b) adding "or representative available" immediately after "employees" in
the second line;
(c) striking out "him" in the third line and substituting "the officer"; and
(d) striking out "his" in the third and in the fifth lines and substituting in
each case "the officer's".
(3) Subsection 29(3) of Chapter 320 is amended by
(a) striking out "Time" in the first line and substituting "Subject to
subsection (1C) of Section 22, time";
(b) adding ", representative" immediately after "member" in the first line;
(c) striking out "his" in the third line and substituting "the officer's";
(d) adding ", representative" immediately after "member" in the fifth line;
and
(e) striking out "his" in the fifth line and substituting "the".
(4) Section 29 of Chapter 320 is further amended by adding immediately after
subsection (3) the following subsection:
(4) An officer shall provide to the employer at a workplace reports of
inspections of the workplace made and reports of workplace occupational health or
safety monitoring or tests taken at the workplace by an officer or at the request of
an officer, and the employer shall comply with subsections (1) and (2) of Section
20E.
31 Chapter 320 is further amended by adding immediately after Section 29 the
following Section:
29A Notwithstanding subsections (1) and (2) of Section 29, the officer may make
an inquiry of any person who is or was in a workplace either separate and apart from
another person or in the presence of any other person that is or may be relevant to the
officer's inspection, examination, investigation, inquiry or test.
32 (1) Subsection 30(2) of Chapter 320 is amended by striking out "his" in the third
and in the fourth lines and substituting in each case "the officer's".
(2) Subsection 30(3) of Chapter 320 is amended by
(a) striking out "his" each time it occurs in the second line of clause (a)
and substituting in each case "the officer's";
(b) striking out "he" in the fourth line of clause (b) and substituting "the
person"; and
(c) striking out "his" in the tenth and eleventh lines and substituting in each
case "the officer's".
(3) Subsection 30(4) of Chapter 320 is amended by
(a) striking out "his" in the second line and substituting "that person's";
and
(b) striking out "his" each time it occurs in the fourth line and substituting
in each case "the officer's".
33 (1) Subsection 31(1) of Chapter 320 is amended by
(a) striking out "his" in the fourth line and substituting "the"; and
(b) striking out "he" in the fifth line and substituting "the officer".
(2) Section 31 of Chapter 320 is further amended by adding immediately after
subsection (1) the following subsection:
(1A) Where an officer makes an oral order pursuant to subsection (1), the
officer shall confirm the oral order in writing.
(3) Subsection 31(2) of Chapter 320 is repealed and the following subsection
substituted:
(2) For greater certainty, an oral order is effective pursuant to this Act
before it is confirmed in writing.
(4) Subsection 31(3) of Chapter 320 is amended by striking out "he" in the fourth
line and substituting "the officer".
(5) Subsection 31(4) of Chapter 320 is amended by striking out "he" in the second
line and substituting "the officer".
34 Section 32 of Chapter 320 is amended by striking out "in consultation with the
Director" in the first and second lines.
35 Chapter 320 is further amended by adding immediately after Section 32 the
following Sections:
32A Where an officer determines that there may be a risk to health or safety and
where an employer, owner, contractor or constructor fails to establish that it would not
be reasonably practicable to carry out an order, the officer may order, at the expense of
the employer, owner, contractor or constructor, as the case may be, that the employer,
owner, contractor or constructor
(a) obtain a report or assessment from a person who possesses such
special expert or professional knowledge or qualifications as are specified by the
officer, for the purpose of determining whether any biological, chemical or physical
agent, material, equipment, machine, device, article, thing or procedure, in or about
a workplace, conforms with this Act or the regulations or good professional
practice; and
(b) cause any tests necessary to the production of the report or assessment
to be conducted or taken.
32B (1) Where an officer makes an order pursuant to this Act or the
regulations, unless the officer records in the order that compliance with the order was
achieved before the officer left the workplace, the person against whom an order is made
shall submit to the officer a compliance notice within the time specified in the order.
(2) Where a compliance notice is required pursuant to subsection (1), the
officer shall specify in the order the time within which the person against whom the order
is made shall submit the compliance notice to the officer.
(3) Notwithstanding the submission of a compliance notice, a person
against whom an order is made achieves compliance with an order made pursuant to this
Act or the regulations when an officer determines that compliance is achieved.
32C (1) Where
(a) a complaint of an alleged contravention is investigated by an
officer and the officer does not issue an order which, in the opinion of the
complainant, is necessary for the health or safety of persons at the
workplace; and
(b) the complainant so requests in writing,
the officer shall serve the complainant with notice of the officer's decision and, where the
complainant is an aggrieved person, the complainant may appeal the decision pursuant
to Section 51B or 51C.
(2) The decision of an officer referred to in subsection (1) is not final, and
may be reconsidered, confirmed or varied
(a) at any time, whether on account of the availability of new
information or not; and
(b) whether or not an appeal has been initiated pursuant to Section
51B or 51C.
36 Section 33 of Chapter 320 is amended by striking out "Director" each time it occurs
and substituting in each case "Chief Compliance Officer".
37 (1) Subsection 34(1) of Chapter 320 is amended by striking out "Director" in the
second and in the fourth lines and substituting in each case "Chief Compliance Officer".
(2) Subsection 34(3) of Chapter 320 is amended by
(a) adding ", or the representative, if any" immediately after "established"
in the second line; and
(b) adding "or representative," immediately after "committee" in the fourth
line.
38 Section 35 of Chapter 320 is amended by striking out "Director" each time it occurs
and substituting in each case "Chief Compliance Officer".
39 Subsection 36(3) of Chapter 320 is amended by striking out "subsection (2) of
Section 20" in the first and second lines and substituting "Section 20E".
40 Subsection 37(1) of Chapter 320 is amended by striking out "subsection (2) of
Section 20" in the first and second lines and substituting "Section 20E".
41 Chapter 320 is further amended by adding immediately after Section 37 the
following Section:
37A Except in accordance with this Act and the regulations, a person having
special, expert or professional knowledge or any other person who, at the request of an
officer, makes an examination, inquiry or a test shall not publish, disclose or communicate
to any person any information, material, statement, report or result of any examination,
test or inquiry acquired, furnished, obtained, made or received under the powers
conferred pursuant to this Act or the regulations, and for greater certainty, subsection (3)
of Section 36 applies.
42 Subsection 38(2) of Chapter 320 is amended by adding "or representative"
immediately after "committee" in the third line.
43 (1) Section 41 of Chapter 320 is amended by striking out "Director" each time
it occurs and substituting in each case "Chief Compliance Officer".
(2) Subsection 41(3) of Chapter 320 is repealed.
44 Section 42 of Chapter 320 is repealed and the following Section substituted:
42 (1) Every employer shall
(a) make available for examination at the workplace
(i) a copy of the regulations that relate to the workplace, and
(ii) information and reports that an officer considers advisable
to enable employees to become acquainted with their rights and duties
pursuant to this Act and the regulations;
and
(b) post in a prominent place or places in the workplace
(i) a current copy of this Act,
(ii) a code of practice required pursuant to this Act or the
regulations,
(iii) a current telephone number for reporting occupational
health or safety concerns to the Division, and
(iv) where the employer is required pursuant to this Act or the
regulations to have an occupational health and safety policy, the
policy,
and ensure they remain posted.
(2) Where anything other than the information listed in subsection (1) is
required to be posted pursuant to this Act or the regulations, the person who has the duty
to post shall
(a) post a legible copy of it in a prominent place or places in the
workplace; and
(b) ensure that it remains posted for sufficient time to enable
employees at the workplace to inform themselves of the content, unless this
Act or the regulations otherwise specify.
45 Clauses 43(d) and (e) of Chapter 320 are repealed.
46 Subsection 44(3) of Chapter 320 is repealed and the following subsection
substituted:
(3) In any proceeding or prosecution pursuant to this Act,
(a) a copy of an order, decision or certificate purporting to have been
made or issued pursuant to this Act or the regulations and purporting to have been
signed by a person authorized to make or issue the order, decision or certificate;
(b) a document purporting to be a copy of a notice, drawing, record or
other document, or any extract therefrom given or made pursuant to this Act or the
regulations and purporting to be certified by an officer or an analyst;
(c) a document purporting to certify the result of a test or an analysis of
a sample of air and setting forth the concentration or amount of a biological,
chemical or physical agent in a workplace, or part thereof, and purporting to be
certified by an officer or an analyst;
(d) a document purporting to certify the result of a test or an analysis of
any equipment, machine, device, article, thing or substance and purporting to be
certified by an officer or an analyst;
(e) a document purporting to be signed by the Director or by an official
authorized by the Director stating that a report, request, notice or order was or was
not given or received;
(f) a document purporting to be signed by a person authorized pursuant
to this Act or the regulations to issue a certificate of examination or authorize a
deviation, stating that on a specified day or during a specified period a person
named in the document was or was not the holder of a certificate of examination or
authorized for a deviation of regulations at a workplace or workplaces; or
(g) a document setting out with reasonable particularity the conviction and
sentence of a person for an offence pursuant to this Act or the regulations
purporting to be signed by
(i) the person who made the conviction, or
(ii) the prothonotary or clerk of the court in which the conviction
was made,
shall be admitted in evidence as prima facie proof of the order, decision, certificate or
document and the contents of the order, decision, certificate or document, without proof
of the signature or official character of the person appearing to have signed the order,
decision, certificate or document.
47 Section 45 of Chapter 320 is amended by striking out "he" in the third line and
substituting "the Minister".
48 Chapter 320 is further amended by adding immediately after Section 48 the
following Sections:
48A (1) A police officer who has reasonable and probable grounds to believe
that a person is failing to comply with an order issued pursuant to subsection (3) of
Section 31 may arrest the person without warrant and may take the person before a judge
as soon as practicable.
(2) A person taken before a judge, as provided in subsection (1), is entitled
to an immediate hearing but, if a hearing cannot then be had, the person shall be released
from custody on giving a personal undertaking to appear to answer to the charge at such
time and place as shall then be fixed by the judge.
(3) A police officer who arrests a person pursuant to subsection (1) shall
promptly inform the person of the reason for the arrest and of the right to retain and
instruct counsel without delay.
48B In any proceedings for an offence pursuant to this Act or the regulations
consisting of a failure to comply with a duty or requirement to take every precaution that
is reasonable in the circumstances, or to do something so far as is practicable or so far
as is reasonably practicable, it shall be for the accused to prove, as the case may be, that
the accused took every precaution that was reasonable in the circumstances, or that it was
not practicable or not reasonably practicable to do more than was actually done to satisfy
the duty or requirement.
48C A prosecution for an offence pursuant to this Act shall not be commenced
more than two years after the later of
(a) the date on which the offence was committed; or
(b) the date on which evidence of the offence first came to the attention of
an officer.
49 (1) Subsection 49(1) of Chapter 320 is amended by
(a) adding ", including that of an officer, the Director of Labour
Standards, the Labour Standards Tribunal, the Chief Compliance Officer or an
Appeal Panel" immediately after "regulations" in the third line of clause (b);
(b) striking out "ten" in the third last line and substituting "two hundred
and fifty"; and
(c) striking out "twelve months" in the second last line and substituting
"two years".
(2) Subsection 49(2) of Chapter 320 is amended by
(a) adding "or (3)" immediately after "(1)" in the second line; and
(c) striking out "one" in the second line and substituting "twenty-five".
(3) Section 49 of Chapter 320 is further amended by adding immediately after
subsection (2) the following subsection:
(3) Where a person is convicted of an offence pursuant to this Act and the
court is satisfied that, as a result of the commission of the offence, monetary benefits
accrued to the offender, the court may order the offender to pay, in addition to a
fine imposed pursuant to subsection (1) or (2), a fine in an amount equal to the
estimation by the court of the amount of the monetary benefits.
50 Chapter 320 is further amended by adding immediately after Section 49 the
following Section:
49A (1) Where an offender is convicted of an offence pursuant to this Act, in
addition to any other punishment that may be imposed pursuant to this Act, the court may,
having regard to the nature of the offence and the circumstances surrounding its
commission, make an order
(a) directing the offender to publish, in the manner prescribed, the
facts relating to the offence;
(b) directing the offender to pay to the Minister in the manner
prescribed by the regulations, an amount for the purposes of public education
in the safe conduct of the activity in relation to which the offence was
committed and the principles of internal responsibility provided for in this
Act;
(c) directing the offender to submit to the Director, on application
by the Director made within three years after the date of conviction, such
information with respect to the activities of the offender as the court considers
appropriate and just in the circumstances;
(d) directing the offender to perform community service, subject to
such reasonable conditions as may be imposed in the order;
(e) directing the offender to provide such bond or pay such amount
of money into court as will ensure compliance with any order made pursuant
to this Section; or
(f) requiring the offender to comply with such other reasonable
conditions as the court considers appropriate and just in the circumstances
for securing the offender's good conduct and for preventing the offender from
repeating the same offence or committing other offences.
(2) Where an offender fails to comply with an order made pursuant to
clause (a) of subsection (1) directing the publication of the facts relating to the offence, the
Director may publish the facts in compliance with the order and recover the costs of
publication from the offender.
(3) Where the court makes an order pursuant to clause (b) of subsection
(1) directing the offender to pay an amount for the purpose of education or the Director
incurs publication costs pursuant to subsection (2), the amount or costs constitute a debt
due to Her Majesty in right of the Province and may be recovered as such in any court of
competent jurisdiction.
(4) An order made pursuant to subsection (1) comes into force on the day
on which it is made or on such other day as the court may order and shall not continue
in force for more than three years after that day.
51 Section 50 of Chapter 320 is amended by
(a) adding "(1)" immediately after the Section number;
(b) striking out all the punctuation and words after "employer" in the fifth line to
the end of the subsection and substituting a period; and
(c) adding the following subsection:
(2) Notwithstanding subsection (1), the act or omission of any manager,
superintendent or other person who exercises management functions for the
employer is not the act or omission of the employer where it is proven that the
employer took every precaution reasonable in the circumstances to ensure that the
act or omission would not occur and the employer
(a) did not have actual knowledge of, or could not reasonably have
known of, the act or omission; and
(b) did not expressly or impliedly consent to the act or omission.
52 Chapter 320 is further amended by adding immediately after Section 51 the
following Sections:
51A (1) Where an application is made in writing for authorization to deviate at
a workplace or workplaces from any provision of the regulations, the Chief Compliance
Officer may authorize the deviation in writing at the workplace or workplaces under such
terms and conditions as the Chief Compliance Officer shall consider advisable.
(2) Unless regulations
(a) alter the standard for authorizing a deviation (1), pursuant to
subsection (1), the Chief Compliance Officer shall be satisfied that the
deviation affords protection for the health and safety of employees equal to
or greater than the protection prescribed by the regulation from which the
deviation is requested; and
(b) alter the processes required pursuant to subsections (3) to (13),
those subsections apply to an application for a deviation pursuant to
subsection (1).
(3) Where the workplace location or locations for which a deviation is
requested exist, unless the committee or representative at a workplace, if any, agrees
otherwise, at least thirty days before applying for a deviation, the applicant for the
deviation shall post a copy of the application and furnish a copy to the committee or
representative, if any, at the workplace.
(4) Where the workplace location or locations for which a deviation is
requested do not yet exist, at least thirty days before applying for the deviation, the
applicant shall, at the applicant's cost, publish notice of the application, containing
information regarding the deviation being requested, in a place where it would reasonably
be expected to come to the attention of persons interested in health and safety who might
be affected by the decision regarding the deviation.
(5) After receiving an application for a deviation pursuant to subsection
(1), the Chief Compliance Officer may conduct such consultation or give such notice of
the application as the Chief Compliance Officer considers advisable.
(6) The applicant for a deviation shall submit, with the application, at the
applicant's cost,
(a) the technical information required to enable the Chief
Compliance Officer to determine the application;
(b) information with respect to the benefits and drawbacks to health
and safety that might reasonably be anticipated if the deviation is authorized;
and
(c) any fee prescribed by the regulations.
(7) The applicant for a deviation for an existing workplace location or
locations shall ensure that the information required pursuant to clauses (a) and (b) of
subsection (6) is made available for examination at the applicant's workplace by the
committee or representative, if any, and by the employees.
(8) The Chief Compliance Officer may make available the information
required pursuant to clauses (a) and (b) of subsection (6) to any person for examination
on request.
(9) A decision by the Chief Compliance Officer pursuant to subsection (1)
shall be accompanied by written reasons for the decision that shall include
(a) the information considered in arriving at the decision and the
rationale for the decision;
(b) the specifics of a deviation that is authorized, including the
location of the workplace or workplaces where the deviation applies; and
(c) the details of any terms or conditions attached to a deviation.
(10) The applicant for a deviation shall ensure that
(a) a copy of the Chief Compliance Officer's decision is posted and
a copy is furnished to the committee or representative at the workplace, if
any; and
(b) where a deviation is authorized, a copy of the decision is
maintained in a prominent place at the workplace or workplaces to which it
applies throughout the time the deviation is in effect.
(11) The Chief Compliance Officer shall provide a copy of the decision to
anyone from whom the Chief Compliance Officer has received a written response to the
application for a deviation pursuant to subsection (1).
(12) In applying a regulation for which a deviation is authorized, a deviation
authorized pursuant to subsection (1) and any conditions that are attached pursuant to
clause (c) of subsection (9) shall, while the deviation is in effect, be substituted for the
prescription or requirement in the regulations.
(13) A Chief Compliance Officer may, at the initiative of the Chief
Compliance Officer or upon application, reconsider, confirm, vary, revoke or suspend the
Chief Compliance Officer's decision regarding a deviation at any time when information
is produced which, had it been known when the request for the deviation was determined
previously, would reasonably be expected to have resulted in a decision different from the
one made at that time, and
(a) subsections (1) to (12) apply to such a reconsideration,
confirmation, variation, revocation or suspension, with the necessary
modifications; and
(b) notwithstanding the periods of notice required pursuant to this
Section, where new information indicates that imminent danger might result
as a result of the deviation, the Chief Compliance Officer may reduce the
period of notice.
51B (1) An aggrieved person may appeal
(a) an order made by an officer pursuant to this Act or the
regulations;
(b) the decision of an officer not to issue an order; or
(c) any decision for which a right of appeal to the Chief Compliance
Officer is provided in the regulations,
within thirty days after the order or decision is served on the recipient, by making written
application to the Chief Compliance Officer.
(2) Where the appellant pursuant to subsection (1) has sufficient authority
in the workplace to ensure that the application for appeal is posted, post a copy of the
application, and where the appellant does not have such authority, the appellant shall
serve a copy of the application on the employer and the employer shall communicate it in
accordance with Section 20G.
(3) The Chief Compliance Officer may consider new information,
including, but not limited to, information provided by an aggrieved person, and shall
summarily review the matter appealed pursuant to subsection (1).
(4) In a review pursuant to subsection (3), the Chief Compliance Officer
may confirm, vary, revoke or suspend the order or decision and shall
(a) do so as promptly as possible; and
(b) provide written reasons for the Chief Compliance Officer's
decision.
(5) An appeal against an order in accordance with subsection (1) does not
suspend the operation of the order, but the Chief Compliance Officer may order the
suspension of the operation of the order until the appeal is disposed of.
51C (1) An aggrieved person may appeal an order or decision of the Chief
Compliance Officer made pursuant to this Act or the regulations to an Appeal Panel.
(2) An appeal pursuant to subsection (1) is initiated by making written
application to the Director
(a) identifying and stating the decision appealed against;
(b) setting out the grounds of the appeal; and
(c) setting out the relief requested, including any request for the
suspension of all or a portion of the order, decision or determination
appealed against,
and paying any fee prescribed by the regulations, within thirty days after the order or
decision by the Chief Compliance Officer.
(3) Where the appellant pursuant to subsection (1) has sufficient authority
in the workplace to ensure that the application for appeal is posted, post a copy of the
application and, where the appellant does not have such authority, the appellant shall
serve a copy of the application on the employer and the employer shall communicate it in
accordance with Section 20G.
(4) An appeal pursuant to subsection (1) against an order, decision or
determination does not suspend the operation of the order, decision or determination, but
the Appeal Panel may order the suspension of the operation thereof until the appeal is
disposed of.
51D (1) The Minister shall seek advice from labour organizations and employer
associations on the identification of panel members to hear appeals pursuant to Section
51C.
(2) The Governor in Council, on the recommendation of the Minister, shall
establish a list of persons from which
(a) a person representing employees and a person representing
employers shall be designated by the Minister to serve as panel members to
hear an appeal pursuant to Section 51C; and
(b) a chair shall be designated by the Minister in the case where the
Director does not serve as chair.
(3) An Appeal Panel shall consist of the chair, who shall be the Director,
except where another person is designated pursuant to clause (b) of subsection (2), and
two panel members from the list of panel members designated pursuant to clause (a) of
subsection (2).
(4) Panel members and the chair of an Appeal Panel shall be paid such
remuneration as may be fixed by the Governor in Council and actual and reasonable
expenses incurred by the member or chair in the discharge of the person's duties and, for
greater certainty, remuneration may be in a nominal amount and may be set to a
maximum rate per appeal.
51E (1) On receipt of a notice of appeal, the Director shall transmit the notice
of appeal to the two panel members selected from the list mentioned in subsection (2) of
Section 51D to hear the appeal.
(2) Upon receipt of an application pursuant to subsection (1) of Section
51C, an Appeal Panel shall hold a hearing that provides any aggrieved persons who have
so requested the opportunity to present evidence and make representations, in accordance
with the regulations.
(3) The amount of time to be available at a hearing for the presentation of
the case of each party to the appeal may be limited by regulations.
(4) Two members of an Appeal Panel constitute a quorum and a decision
of two members of an Appeal Panel is the decision of the Appeal Panel.
(5) An Appeal Panel may receive any evidence and information on oath,
affidavit or otherwise as, in its discretion, it deems fit and proper, whether admissible as
evidence in a court of law or not.
(6) The Appeal Panel may,
(a) except as otherwise provided in this Section or the regulations,
determine its own rules of procedure; and
(b) by order, confirm, vary, revoke or suspend the order appealed.
(7) An Appeal Panel, and each member of it including the chair, has the
powers, privileges and immunities of a commissioner appointed pursuant to the Public
Inquiries Act.
51F An officer shall immediately provide a copy of the decision of the Chief
Compliance Officer or the Appeal Panel to the employer, the committee or representative,
if any, the appellant and any other aggrieved person who has made a submission in
relation to the matter appealed.
51G The Chief Compliance Officer or the Director is not disqualified from hearing
an appeal by reason that the Chief Compliance Officer or Director, in the course of the
performance of a function as a member of the Division, receives information on the subject
-atter of the appeal, or participates in any communication with any person concerning the
subject-matter of the appeal.
51H No action lies or shall be instituted against an Appeal Panel or a member or
the chair of an Appeal Panel, the Chief Compliance Officer, the Labour Standards
Tribunal or a member of the Labour Standards Tribunal, a Labour Standards officer or
the Director of Labour Standards or an officer where that person or body is acting
pursuant to the authority of this Act or the regulations, for any loss or damage suffered
by a person by reason of any act or omission done in good faith by the person or body
pursuant to, or in the exercise or supposed exercise of, any power conferred by this Act
or the regulations, or in the carrying out or supposed carrying out of any function or duty
imposed by this Act or the regulations.
51I The curriculums of
(a) a trade school or home study course within the meaning of the Trade
Schools Regulation Act;
(b) a program of instruction within the meaning of the Community Colleges
Act; and
(c) any other institution that the Minister may designate,
shall include instruction in the principles of occupational health and safety contained in
this Act.
53 (1) Subsection 52(1) of Chapter 320 is amended by striking out "he" in the second
line and substituting "the Governor in Council".
(2) Subsection 52(2) of Chapter 320 is amended by
(a) adding immediately after clause (a) the following clause:
(aa) requiring an employer or class of employers to prepare a written
policy or a written program;
(b) adding immediately after clause (h) the following clauses:
(ha) enabling the adoption of a code of practice at a workplace,
containing one or more provisions from a regulation that would not
otherwise apply to the workplace;
(hb) defining words or expressions used but not defined in this Act;
(c) adding immediately after clause (m) the following clauses:
(ma) prescribing the roles and responsibilities of analysts and the
criteria to be used in choosing analysts;
(mb) imposing requirements on health insurers and health-care
agencies to provide to the Division statistical reports regarding occurrences
of injury and disease arising from employment;
(d) repealing clause (o) and substituting the following clauses:
(o) prescribing
(i) the making of reports by committees,
(ii) procedures for the operation of committees, including, but
not limited to, minimum requirements for the contents of, and a
retention period for, minutes and records of committees, and
(iii) the activities that may be carried on by committees or
representatives within the functions described in subsection (1) of
Section 20 or subsection (5) of Section 20A, respectively;
(oa) altering the frequency of committee meetings required pursuant
to this Act;
(ob) prescribing additional requirements for the training of committee
members including, but not limited to, requiring employers or classes of
employers to provide for and pay for the training;
(oc) increasing or decreasing the period of employment to be
considered in a determination of the number of persons regularly employed
at a workplace;
(e) adding immediately after clause (p) the following clause:
(pa) prescribing the type of information to be transferred, the form in
which information will be transferred and the frequency of transfer of the
information to be exchanged between the Division and the Workers'
Compensation Board;
(f) adding immediately after clause (s) the following clauses:
(sa) altering the standard or processes according to which an
application for a deviation shall be considered pursuant to Section 51A;
(sb) prescribing regulations for which a deviation shall not be
permitted pursuant to Section 51A;
(g) adding immediately after clause (v) the following clauses:
(va) prescribing charges to recover the cost of services pursuant to
this Act and fees in relation to appeals and deviations, certificates, licences,
permits, reviews of documents and filing of documents;
(vb) respecting any matter necessary or advisable for the
administration of a system of administrative penalties;
(h) adding immediately after clause (w) the following clause:
(wa) establishing boards of examiners for the certification of
occupational qualifications and providing processes for the issuance and
revocation of certificates of examination;
and
(i) repealing clause (x) and substituting the following clauses:
(x) establishing procedures for the determination of matters arising
from Sections 26, 26A and 26B and clarifying or altering the application of
any Section of the Labour Standards Code, or regulations made thereunder;
(xa) respecting an appeal to the Chief Compliance Officer or an
Appeal Panel, including, but not limited to
(i) the conduct of appeals, including, but not limited to,
limiting the amount of time given to each party to an appeal to present
the party's case at the hearing of the appeal, and
(ii) providing for the appeal of matters other than those
permitted pursuant to this Act;
54 Chapter 73 of the Revised Statutes, 1989, the Coal Mines Regulation Act, is
repealed.
55 Chapter 284 of the Revised Statutes, 1989, the Metalliferous Mines and Quarries
Act, is repealed.
56 Sections 45, 54 and 55 come into force on such day as the Governor in Council
orders and declares by proclamation.
57 Section 51I, as enacted by Section 52, has effect on and after July 1, 1999, or such
earlier day as the Governor in Council orders and declares by proclamation.
58 This Act has effect on and after January 1, 1997, or such earlier day as the
Governor in Council orders and declares by proclamation.