- If the worker has “reasonable grounds” to believe that the work is still unsafe despite the supervisor’s answers or corrective measures, then the worker can continue to refuse and a Ministry of Labour inspector must be called in to investigate. The refusing worker, the worker representative or the employer can call the inspector.
– Sec. 43, Sub. 6 - When the Ministry of Labour receives a call requesting that an inspector come to a workplace because of a work refusal, the Ministry staff will attempt to make a determination over the phone whether the work refusal meets their criteria of a valid refusal. In workplaces such as healthcare facilities, developmental services facilities or correctional facilities, inspectors frequently determine over the phone that the circumstances are a normal or inherent part of the job and that the worker does not have the right to refuse. In these cases, even if the MOL inspector makes that decision and downgrades the work refusal to a complaint, workers and their representatives must insist that the inspector come to the workplace to investigate and to assist.In other cases, the inspector may determine over the phone that the parties involved have not completed Stage 1 of the refusal. If you and the employer believe that you have exhausted all attempts to resolve the issue, insist that the inspector come to the workplace.
- The Ministry of Labour inspector must investigate “in consultation” with the worker, the supervisor, and the worker’s representative.* Workers should insist that the inspector come to the workplace to investigate.
– Sec. 43, Sub. 7
*Note: Prior to June 2001, inspectors had a legal duty to investigate a work refusal “in the presence” of the worker and her/his representative. Now, however, the Act states that the investigation can take place in “consultation” with the parties. However, current MOL policy states that when an inspector makes a determination over the phone that a work refusal has met MOL criteria as a valid refusal and attempts to resolve it internally have been exhausted, an inspector will be sent to the workplace.
If the inspector will not attend, insist that you are present for any telephone conversations between the employer and the inspector. Do not let your employer present their description of the situation without your input.
- After the inspector’s investigation is completed, the inspector must give a written decision as to whether the work is likely to endanger.
– Sec. 43, Sub. 8 and 9 - If the worker disagrees with the inspector’s decision, an appeal can be filed within 30 days with the Ontario Labour Relations Board for a ruling.
– Sec. 61
Can refused work be reassigned to another worker?
- Yes, during Stage 2 of the refusal. But the employer must advise this worker that the work has been refused and the reasons for the refusal. This must be done in the presence of a worker member of the joint committee, a health and safety representative or a worker selected by the union. This worker can also refuse, if he or she believes the job is unsafe.
– Sec. 43, Sub.11
Does the worker have to be correct?
- What does “reason to believe” and “reasonable grounds to believe” mean?
- In order to legally refuse to work, the law requires only that a worker have a reasonable belief. A mountain of evidence is not needed.
– Sec. 43, Sub. 3
Can a supervisor put off or refuse to investigate or send the worker home?
- No. The supervisor must investigate immediately in accordance with the procedure.
- If the supervisor refuses, workers should call a ministry inspector immediately and indicate what has taken place.
- – Sec. 43, Sub. 4
Do workers have a right to be paid during an investigation of a work refusal?
- Yes. The refusing worker and her representative are entitled to payment during all stages of a refusal.
– Sec. 43, Sub. 13 - During the second stage of the refusal, the law allows the employer to give undefined “other directions” to the worker should no other work be available. Should this result in any loss of pay, benefits or layoff, the employer must prove that this was not a reprisal which is forbidden by the Act.
– Sec. 43, Sub. 10(b); Sec. 50
Can a worker continue to refuse if the inspector rules that the work is not likely to endanger?
- The Act is silent on this question and thus full protection is not clearly provided. Generally, the worker returns to work and any dissatisfaction handled through the appeal process. The Ontario Labour Relations Board has ruled in a few cases that since this is not forbidden by the Act, a worker would have the right to continue to refuse to work if the inspector’s decision was not knowledgeably and independently based. These instances would be rare.
- Continuing a work refusal in this circumstance must be carefully considered. Workers are advised to consult their union staff representative on this issue.
Can an injured or susceptible worker refuse to perform unsafe work?
- Yes. The injured or susceptible worker has a right to refuse unsafe work under Section 43 (3) of OHSA. The right to refuse applies to a disabled or susceptible worker and not just the average healthy worker. The employer has a duty to make appropriate safety provisions that address your medical limitations. While the inspector will not rule specifically on whether an accommodation is appropriate, he/she will determine whether work is likely to endanger a disabled or susceptible worker. – (See Part L: Case #6, #7)
*NOTE: It is important that injured workers obtain medical documentation in advance about their particular limitations or sensitivities to support these actions.
Part E
Your right to be free from reprisals
Can workers be penalized for seeking compliance with the law or exercising their rights under the Act?
- No. The law specifically prohibits employers from penalizing or intimidating workers for seeking compliance or exercising their rights, or for giving evidence with respect to the enforcement of the Act or during a coroner’s inquest. This also includes the exercise of a worker’s right to refuse unsafe work.
– Sec. 50, Sub. 1
What can be done if an employer engages in a reprisal against a worker?
- There are three possible options available to workers:
- Call the Ministry of Labour: Since this is a violation of the Act, the worker should immediately file a complaint with an inspector. Also, the inspector can issue orders to deal with the underlying health and safety violation that led to the reprisal. As of April 2012 an inspector, on consent of a worker, may refer an allegation of reprisal to the Ontario Labour Relations Board provided that the matter has not been dealt with by grievance arbitration under a Collective Agreement. An inspector may also (with approval from a Ministry of Labour manager) investigate a reprisal for the limited purpose of determining whether to recommend a prosecution.
– Sec. 50, Sub. 2.1 - File a grievance. The worker can also file a grievance in accordance with the procedures in a collective agreement. In this case, the worker still has the option to file a complaint with the OLRB so long as the grievance does not enter the arbitration process.
-Sec. 50, Sub. 2 - Consider filing a complaint to the Ontario Labour Relations Board. The worker can file a complaint to the Ontario Labour Relations Board (OLRB). In this case the worker must file a special form with the registrar providing the complete details. *As of April 2012 (from the Bill 160 changes) an inspector, on consent of a worker, may refer an allegation of reprisal to the OLRB provided that the matter has not been dealt with by grievance arbitration under a collective agreement. Once this is filed, the OLRB will assign a labour relations officer who will meet with the parties, investigate and attempt a settlement. If no settlement is reached, the board will hold a hearing and rule on the complaint.
*Note: unionized workers will have to elect either grievance arbitration or a decision from the OLRB, but may not have the issue dealt with in two forums.
Part F
Your right to know
Do workers have a right to health and safety information?
- Yes. The employer is obligated to give workers information on the hazards of any chemical, biological and physical agent or any hazards associated with equipment or devices used in the workplace. – Sec. 25, Sub. 2 (a),(d)
- Under the Workplace Hazardous Materials Information System (WHMIS) provisions of the Act the employer has to provide very specific information on chemical and biological agents by labeling containers and providing material safety data sheets (MSDS) to workers. – Sec. 37 to Sec. 42 and Regulation 860, as amended by Regulation 36/93
- The employer must advise workers of any health and safety reports (not harassment reports) in their possession and make these available on request.
– Sec. 25, Sub. 2 (m) and
Sec. 32.0.7, Sub (2) - The employer must provide workers with information and instruction on the contents of the workplace harassment and violence policies and programs.
– Sec. 32.0.5, Sub. 2 and
Sec. 32.0.7 - The employer must provide information to a worker about a person in the workplace with a history of violent behaviour if the worker can be expected to encounter that person in the workplace and there is a risk to the worker of physical injury. The employer is not to disclose more personal information than is reasonably necessary. – Sec. 32.0.5, Sub. 3 (a)(b) and Sub. 4
What information do workers, health and safety representatives and JHSCs have a right to?
- A worker, a health and safety representative, a member of the JHSC and/or a union member can request an annual summary of information concerning workplace injuries and illnesses from the Workplace Safety and Insurance Board. The employer must post a copy of the information in the workplace where workers are likely to see it.
– Sec. 12, Sub.1 and 2 - When an employer does a risk assessment for the hazard of workplace violence, it must advise the JHSC or the health and safety representative, or workers if there is no JHSC or representative, of the results of the assessment. If the assessment is in writing, a written copy must be provided to the representative or the JHSC. If there is no representative or JHSC, workers must be given a copy or be advised how to obtain copies.
– Sec. 32.0.3, Sub. 3 (a)(b) - If a Ministry of Labour inspector gives written orders or a report in a workplace, the employer must post the orders or report in a place where workers are likely to see the report. A copy must be given to the health and safety representative of JHSC. Additionally, if it was a worker complaint that brought the inspector into the workplace, the inspector must give a copy to the complainant on request.
– Sec. 57, Sub. 10
What information do health and safety representatives and JHSCs have a right to?
- The employer must provide health and safety representatives and JHSC members with information and assistance required to perform workplace inspections.
– Sec. 8, Sub. 9; Sec. 9, Sub. 29 - Health and safety representatives and JHSC members have the right to obtain information from the employer about workplace hazards, to be consulted prior to testing for workplace hazards, and to be present at the beginning of testing.
– Sec. 8, Sub. 11 and
Sec. 9, Sub. 18 (d)(e)(f) - The employer must consult with health and safety representatives and JHSC members about industrial hygiene testing strategies and provide them with information about industrial hygiene testing strategies. A health and safety representative or JHSC member has the right to be present at the beginning of testing.
– Sec. 11, Sub. 1 to 4 - If a worker is killed or critically injured at work, the employer must immediately advise an MOL inspector the health and safety representative or JHSC and the union. Within 48 hours, the employer must send the MOL a written report according to the regulations.
– Sec. 51, Sub. 1, and
Regulation 851, Sec. 5, Sub. 1 - If a worker is injured at work, including injuries from workplace violence, the employer must notify the JHSC or health and safety representative and the union in writing within four days. The written notice shall contain all the items listed in the regulations. If the employer is notified that a worker has developed an occupational illness or has made a claim to WSIB for an occupational illness, the employer must notify the MOL, the health and safety representative or JHSC and the union within four days.
– Sec. 52, Sub. 1 and 2;
Regulation 851, Sec. 5, Sub. 2
Do workers have a right to be trained in health and safety?
- Yes. The employer must train workers to work in a safe manner. Under WHMIS, the employer must ensure that workers are trained to have a working knowledge of the information provided on material safety data sheets (MSDS) and labels and how to handle any of these hazardous materials in a safe manner as set out in Regulation 860, as amended by Regulation 36/93.
– Sec. 25, Sub. 2(a)(d) and
Sec. 42 - The Act also obliges the employer to carry out any training programs that might be required by a regulation.
– Sec. 26, Sub. 1(l) - The Act requires that at least one worker member of the joint committee receive certification training.
– Sec. 9, Sub. 12 - An employer must provide information and instruction on workplace harassment and violence policies and programs.
– Sec. 32.0.5, Sub. 2; Sec. 37.0.7 - Regulation 297/13 (introduced by Bill 160) requires employers to provide basic occupational health and safety awareness training to workers as soon as reasonably possible on the job and to supervisors within a week of working as a supervisor. The employer must maintain records of all training and provide written confirmation of the training to workers and supervisors.
Part G
Medical rights of workers
Do workers have a right to have their personal medical information kept confidential?
- Yes. Employers are prohibited from trying to get access to a worker’s medical records without the worker’s consent. (See Part L: Case #13)
– Sec. 63, Sub. 2 - Members of joint committees and worker representatives are prohibited from revealing any personal medical information that comes into their possession.
– Sec. 63, Sub. 1(f)
What rights do workers have regarding medical testing and monitoring?
- Workers are not required to undergo medical tests unless they consent.
– Sec. 28, Sub. 3 - Workers consenting to undergo medical tests required by regulation must be provided with paid time off work as well as all costs of the medical examinations, including reasonable travel expenses.
– Sec. 26, Sub. 3
Part H
The power to stop unsafe work
What are the powers and rights of certified committee members when a dangerous circumstance is reported?
- A worker certified member has the right to investigate a complaint by a worker that danger exists in the workplace.
– Sec. 48 - If both management and worker certified members agree that a danger exists, they may order that the work stop. This is known as a bilateral work stoppage.
– Sec. 45, Sub. 4
When can the power to stop work be exercised?
- When both certified members agree that a dangerous circumstance exists.
– Sec. 45
What is meant by a “dangerous circumstance?”
- A dangerous circumstance means that there has been a contravention of the Act or regulations which poses a danger, and any delay in controlling the danger may seriously endanger a worker.
– Sec. 44
What is the procedure for a bilateral work stoppage?
- The certified member requests that the supervisor investigate the dangerous circumstance.
- The supervisor must investigate immediately in the presence of the certified member.
- If the certified member is not satisfied with the supervisor’s investigation, another certified member is called in to investigate.
- If both certified members agree that a dangerous circumstance exists, they can order a work stoppage.
- The employer must follow this order immediately.
- If the certified members cannot agree, the work cannot be stopped, but an inspector can be called in to investigate.
- Following the investigation, the inspector will issue a written decision to both certified members.
- If a certified member does not agree, he or she can appeal to the Ontario Labour Relations Board within 30 days of the decision.
What can be done if the bilateral work stoppage provision is not working to protect workers, or if the employer has bad safety practices?
- A certified member or an inspector can apply to the OLRB for a declaration or recommendation. The OLRB can order that the certified worker member be given the unilateral power to direct a work stoppage, or recommend that the government assign an inspector to the workplace on a full time or part time basis at the employer’s expense.
– Sec. 46, Sub. 1 to 8 - In considering an application for a declaration the OLRB must do so in accord with the criteria set out in Regulation 243/95. This would include consideration of the employer’s safety record (i.e. complaints, convictions, inspection records, etc), injury and illness records, safety policies and practices, pattern of bad faith with the joint committee, etc.
- In addition to having this ordered by the OLRB, unions can negotiate a unilateral stop work provision with the employer. Should the employer agree to such a provision, a worker certified member will have this power when the employer so advises the joint committee.
– Sec. 47, Sub. 1(b)
What is the procedure for unilateral work stoppage direction?
- If the OLRB has issued a declaration that a certified worker can unilaterally stop work, or if the employer has adopted a unilateral work stoppage process, the following steps are followed.
- Should a certified member find a dangerous circumstance he or she can order the employer to stop the work operation in question.
– Sec. 47, Sub. 2 - The employer must immediately comply, and immediately investigate.
- After investigating and taking corrective action, the employer may ask the certified member to cancel the order.
- If the employer and certified member cannot agree, then an inspector can be called in to investigate.
- Following the investigation, the inspector will issue a written decision which may include a cancellation of the stop work order.
Are certified members subject to any liability under this provision?
Yes. Anyone can file a complaint with the OLRB within 30 days alleging that a certified member exercised or failed to exercise this power recklessly or in bad faith. The OLRB can take whatever action it considers appropriate, including decertifying the certified member.
– Sec. 49
Are there any restrictions on the power to order either a bilateral or unilateral work stoppage?
- Police, fire fighters and persons employed in correctional facilities are prohibited from exercising this power under any circumstances.
– Sec. 44, Sub. 2(a) - Workers employed in health care facilities are prohibited from using it in circumstances that would directly endanger another person.
– Sec. 44, Sub. 2(b)
Are workers paid during a work stoppage order by certified members?
- There is no guarantee that workers affected by a safety shutdown will be paid.
Part I
Appeals and complaints
What can be done if you disagree with an inspector’s decision or order?
- Anyone who disagrees with an inspector’s decision or order can file an appeal with the Ontario Labour Relations Board within 30 days of the decision. The Board may affirm or rescind an inspector’s orders, or substitute its findings. And the Board’s decision is final.
– Sec. 61
How are appeals dealt with by the OLRB?
- The board requires that you file your appeal in writing on Form A-65 within 30 calendar days of the inspector’s decision. All of the OLRB forms and Information Bulletins are available on the provincial government website. Look for the OLRB link on the Ministry of Labour’s site.
- The board will then send a copy of the completed Appeal Form (A-65) and a blank Response to Appeal Form (A-66) to all the responding parties to the appeal. The parties to the appeal usually include the worker, the union, the employer and the inspector.
- The board will appoint a labour relations officer (LRO) to meet with the parties in an effort to resolve the appeal.
– Sec. 61, Sub .3 - The LRO will report the results of this effort to the board. If the matter is not resolved, the case will be set for a consultation or hearing, and a Notice of Consultation or Hearing will be sent to all of the parties.
- The Response to Appeal (Form A-66) must be completed and delivered to the Board and all of the parties no later than 21 calendar days before the consultation or hearing date.
How are requests for a suspension of an inspector’s decision processed by the OLRB?
- Suspension requests will be processed only if an application for appeal has also been filed with the board.
- An application for suspension of an inspector’s decision is filed with the Board on Form A-67. In giving your reasons for a suspension request, applicants must address the following criteria that were originally set out in the Zehr Market case (See Part L, Case #20):
- Will the health and safety of the workers be assured if the order is suspended?
- Will there be any negative impact on the applicant if the decision is not suspended?
- Is there a good chance of succeeding in your appeal?
- Is there a good reason to vary the inspector’s decision or order before the appeal can be dealt with?
- And any other information that might be supportive.
- A completed Form A-68 must be delivered to all parties within 14 calendar days of confirmation of filing sent by the board.
- Applications for suspension are usually dealt with through consideration of written submissions only. In certain instances, the Board may call for an oral hearing or consultation.
What options can the OLRB take in appeal/suspension applications?
- Hold formal hearings;
- Limit the presentation of evidence by the parties;
- Issue a decision without holding a hearing after consulting with the parties;
- Suspend the inspector’s order pending the disposition of the appeal;
- Reconsider any decision or order an inspector has made.
How are Section 50 reprisal complaints processed by the OLRB?
- Applications alleging that an employer has violated Section 50 must be made on Form A-53. The applicant must fully describe how Section 50 was violated and provide facts and documents in support of the allegations that the employer imposed an unlawful reprisal on a worker.
- Before filing the application with the board, the worker must deliver an Application Package to the employer. This consists of the completed application, a blank response Form A-54, a Notice of Application Form C-26, and a copy of the Board’s Information Bulletin.
- No later than five days after delivering the Application Package to the employer, the worker must file two copies of the application with the board. The matter will be terminated if the application is not filed within five days of delivery to the employer.
- After receiving the Application Package, the employer has 10 working days to Respond to the application on Form A-54. The employer must first deliver a copy of the response to the worker and then file 2 copies to the Board.
- After the response has been filed, the board will assign an LRO who will attempt to mediate a settlement.
- If no settlement is reached, a hearing will be held. At the hearing, the employer must establish that it did not impose an unlawful reprisal. Usually, the employer must give its evidence first.
What is the role of the OLRB under the Act?
- The Act empowers the Board to hear and decide: Appeals of inspectors’ orders and decisions.
– Sec. 61 - Complaints from certified members or an inspector that the bilateral work stoppage provision does not protect the workers from serious risk to their health and safety.
– Sec. 46 - Complaints that a certified member has exercised or failed to exercise the power to stop work recklessly or in bad faith.
– Sec. 4 - Complaints that an employer has taken a reprisal against a worker. These are filed on Form A-53 with the OLRB.
– Sec. 50
How can an application to the board under Section 46 assist workers?
- An application places the employer under the close scrutiny of the OLRB.
- The employer is faced with the possibility of having the unilateral shutdown Provision imposed or having an inspector assigned on a full-time or part-time basis.
What must you carefully document to build a case against a bad employer?
- obstruction of the internal responsibility system;
- cases where the employer ignores the recommendations of the joint committee;
- cases where the employer fails to correct identified safety violations;
- the number of orders, repeat orders or charges;
- the incidence of occupational illness and injury;
- lack of policies, programs, safety procedures and training;
- the number of health and safety reprisals.
(See Regulation 243/95)
PART J: Legal enforcement
Who can call an inspector?
- Anyone can call an inspector.
– Sec. 43, Sub. 6
Do workers have a right to accompany an inspector?
- Yes. The Act requires that a designated worker (a worker JHSC member, or another worker chosen by the union because of knowledge and training) accompany an inspector during a routine inspection.
– Sec. 54, Sub. 3 - In addition, worker representatives are required to be present during an inspector’s investigation of a work refusal.
– Sec. 43, Sub.7
What are the powers of Ministry of Labour inspectors?
Inspectors have the power to:
- Enter any workplace at any time without a warrant.
– Sec. 54, Sub. 1(a) - Must investigate all work refusals and give a written decision.
– Sec. 43, Sub. 7, 8 - Be accompanied by a person with specialized knowledge during an inspection.
– Sec. 54, Sub. 1(g) - Request any drawings, documents, records, etc, and take these away to copy.
– Sec. 54, Sub. 1(c) - Determine compliance with orders.
– Sec. 59, Sub. 4 - Order tests by qualified persons at the employer’s expense.
– Sec. 54, Sub. 1(f)(k) - As of September 2016 and the Bill 132 changes, order an employer to cause an investigation of workplace harassment to be conducted by a third-party person. The inspector can also specify the knowledge, experience or qualifications of the person. Also, that a written report be provided by that person at the expense of the employer. (The report is not a report a type of report that must be shared with the JHSC).
– Sec. 55, Sub. 3(1)(2) - Order that equipment not be used until it is tested.
– Sec. 54, Sub. 1(l) - Alter the frequency of inspections by worker members or health and safety representatives.
– Sec. 55 - Examine and copy training materials and attend training programs provided by the employer.
– Sec. 54, Sub. 1(p) - Seize documents or objects as evidence of a contravention.
– Sec. 56 - Require a compliance plan.
– Sec. 57, Sub. 4 and 5 - Order that work not resume under a stop work order until the operation is re-inspected and the stop work order is withdrawn.
– Sec. 57, Sub. 8
What can an inspector do if unsafe or unhealthy conditions are found?
- The inspector can issue orders to comply, issue stop work orders and/or initiate a prosecution.
Who has the power to determine compliance with an order?
- Compliance with an order can only be determined by an inspector.
– Sec. 59, Sub. 4 - Work placed under a stop work order cannot resume until an inspector re-inspects, unless the worker member or a health and safety representative advises the inspector that he or she agrees with the employer’s notice of compliance.
– Sec. 57, Sub. 7 - The employer’s notice of compliance with an order must be accompanied by a statement of agreement or disagreement signed by the committee member or the health and safety representative.
– Sec. 59
How should workers deal with work orders, stop work orders and compliance notices?
- According to Ministry of Labour policy, the inspector can accept that compliance has been met without re-inspection, if the worker representative agrees with the employer’s notice of compliance. If the worker disagrees, then an inspector will re-inspect. If the worker declines to sign the employer’s notice, then the inspector might re-inspect.
Worker representatives are well advised to take the following measures:
- Insist that inspectors issue an order for a compliance plan. This gives you an opportunity to review how the employer will correct the hazard, and a means of monitoring the progress. It is absolutely essential that worker representatives carefully assess an employer’s notice of compliance. In most cases, it would be wise to insist on a re-inspection by the inspector before endorsing the notice of compliance.
- What can be done if an inspector’s order or decision does not address the hazard or violation of the Act?
- The worker can file an appeal with the OLRB within 30 calendar days of the inspector’s decision.
– Sec. 61 - What can happen if someone violates the Act and its regulations, or fails to comply with an order?
- Anyone can be charged and prosecuted for these violations. If found guilty, they are subject to a fine of up to $25,000 or one year in prison or both.
– Sec. 66, Sub. 1 - If found guilty, a corporation can be fined up to $500,000.
– Sec. 66, Sub. 2 - The Attorney General can require that a case be tried by a provincial judge instead of a justice of the peace.
– Sec. 68, Sub. 2
What can be done if the government refuses to prosecute an employer for violating the Act?
- In addition to putting public pressure on the government, an individual or a union can bring a private prosecution by filing information with a justice of the peace indicating that there is evidence that an employer violated the law. Unless the government decides to assume the prosecution, the individual or the union is responsible for conducting the prosecution and paying the legal bills.
Part K
Government regulatory power
What are the regulations?
- Section 70 of the Act empowers the cabinet to make regulations pursuant to the Act. These are the detailed rules applying to specific circumstances. These cannot, however, go beyond the powers of the Act or contradict the provisions of the Act.
- Any time you see the word “prescribed,” it means that a regulation could set specific safety requirements.
Can the government make regulations which affect workers’ or unions’ rights?
- Yes. The Act gives the government the power to make regulations such as the following (see OHSA Sec. 70 for a complete list): ► Require more than four persons on a joint committee at certain workplaces.
– Sec. 70, Sub. 10
► Exempt any workplace from the requirement to have a committee. The right to a
committee can be taken away without review by the legislature.
– Sec. 70, Sub. 11
► Set the requirements for the terms, qualifications and eligibility for membership on
joint committees. The union’s right to select its representatives on its own terms
can be restricted.
– Sec. 70, Sub. 13
► Exempt any workplace from the requirement to have certified members. This
restricts our right to training and takes away what little protective powers workers do
have. (Note: Regulation 385/96 exempts employers from having to certify members
of joint health and safety committees formed because a designated substance
regulation applies to the workplace pursuant to Sec. 9 Sub 2.c) – Sec. 70, Sub. 14
► Exempt workplaces from the bilateral or unilateral right to shut down unsafe work.
– Sec. 70, Sub. 49
► Exempt any workplace from the requirements to provide health and safety
representatives with training to enable them to effectively exercise the power and
perform the duties of a health and safety representative. (Note: the requirement to
train HSRs is not yet the law so it is unknown if there will be exemptions to it.
– Sec. 70, Sub. 13
What can be done to protect our rights in this case?
- Given the power that government has to take away powers and rights of workers and unions, it is important that unions and central labour bodies be extremely vigilant and demand effective participation in the regulatory process.
Are there regulations that apply to toxic substances?
- Yes. Section 70 (23) gives the government power to designate substances for specific controls. For example, there are several substances that are designated in regulation such as asbestos, lead, and mercury. Eleven substances are covered by Regulation 490/09, the Designated Substance regulation that requires exposure assessments, control programs, exposure limits and medical monitoring. This regulation primarily applies in places that use, manufacture, or regularly handle the substance. There is also Regulation 833 which establishes the limits of concentrations of over 400 chemical and biological substances in the workplace atmosphere by setting occupational exposure limits (OEL). Regulation 833 does not require routine assessments and control programs unless ordered by an inspector.
My workplace has asbestos. What regulation applies for asbestos management or abatement?
- Regulation 278/05 Asbestos on Construction Projects and in Buildings and Building Repair Operations applies to buildings that contain asbestos but that do not use or manufacture the substance. This regulation prescribes obligations for employers and owners in buildings where asbestos is present, or being managed or removed.
Part L
Health and safety case law
You will notice that most of the cases below were decided in the 1990s or before by the Office of The Adjudicator, a specialized body which previously heard and determined health and safety appeals. Since 1996, health and safety appeals have been dealt with by the Ontario Labour Relations Board. Since the appeal function was transferred to the OLRB, over 90 per cent of all cases (OPSEU and broader) are settled through mediation, rather than decided at a hearing. Although the cases below are quite old, they continue to be useful to clarify how different sections of the OHSA have been interpreted.
Staffing Levels
Case #1
Decision: The adjudicator overruled an inspector and ordered additional staffing and regular relief for a worker assigned to monitor a violent resident on a one-to-one basis. This was the first time an adjudicator addressed staffing issues in a decision.
Place: Adult Occupational Centre at Edgar
Findings: The adjudicator found that the employer failed to take reasonable precautions for the protection of the worker who was assigned to work alone with a violent person. The adjudicator also found that an inspector had the power to require disclosure of the psychiatric assessment of the resident in order for the inspector to assess the extent of hazard.
(Decision No. 92-09)
Case #2
Decision: The adjudicator supported the inspector’s decision to order safe staffing levels.
Place: St. Thomas Psychiatric Hospital
Findings: The adjudicator found that an inspector and an adjudicator could consider staffing as a reasonable precaution an employer would be required to take to protect the health and safety of workers under Section 25(2)(h) of the Act. (Decision No. 01/93-A)
Case #3
Decision: The adjudicator overruled the inspector and ruled that correctional officers had the right to refuse when staffing levels fell below a minimum. The adjudicator overruled the inspector’s determination that these conditions did not endanger workers.
Place: Sault Ste. Marie Jail
Findings: The adjudicator found that the employer’s decision to run regular activities at below minimum staffing levels violated Section 25(2)(h). He also ruled under Section 43 that this condition was likely to endanger the workers. The adjudicator held that the correctional officers were entitled to refuse since reduced staffing levels were not a normal condition of employment or inherent in their work.
(Decision No. OHS 95-25A)
Case #4
Decision: The adjudicator ruled that the employer was required to have two correctional officers in the control module. The adjudicator held that a correctional officer in a maximum-security detention centre was entitled to an independent “back up” officer to monitor his or her safety.
Place: Sault Ste. Marie Jail
Findings: When the employer first cut staff in the control module, an inspector had written orders. The inspector subsequently ruled that the employer had complied with the orders when the employer modified the control module to accommodate a one-person operation. The adjudicator found that the employer had not complied with the order since there were too many distractions that diverted a single officer’s attention from observing the monitors.
(Decision No. OHS 97-02)
Case #5
Decision: The adjudicator ruled that a correctional officer must have an independent observer to monitor his or her safety when escorting inmates on the down ramp at the Hamilton-Wentworth Detention Centre.
(Decision No. OHS 98-03)
The rights of disabled or susceptible workers
Does the employer have an obligation to protect susceptible workers?
Do susceptible workers have the right to refuse?
Case #6
Decision: The adjudicator found that a disabled correctional officer did have the right to refuse work he believed was unsafe, because performing work that medical advice says is unsafe is neither inherent nor a normal condition of employment. The Adjudicator also ruled that the employer could not require the worker to perform work a doctor said was unsafe.
Place: Metro West Detention Centre
Findings: The adjudicator overruled an inspector’s determination that a disabled correctional officer did not have the right to refuse an assignment that a doctor said would be unsafe. The adjudicator found that while an inspector might not have the jurisdiction to order an employer to accommodate a disabled worker, the inspector does have clear jurisdiction under Section 25(2)(h) to forbid an employer from requiring a worker to perform work a doctor says is unsafe.
(Decision No. OHS 14-97)
Case #7
Decision: The adjudicator supported an inspector’s order that an employer provide an ergonomically designed chair for a disabled worker who had suffered a back injury.
Place: Elgin-Middlesex Detention Centre
Findings: The adjudicator dismissed the employer’s argument that the employer was only obliged under Section 25(2)(h) to provide protection for the average healthy worker. The adjudicator ruled that the employer had a duty to ensure that the health and safety of a disabled or susceptible worker was protected. The adjudicator also dismissed the employer’s argument that the right to refuse under Section 43(3) was only available to the average healthy worker, and could not be invoked by a susceptible worker who had reason to believe that the conditions of work were likely to endanger him.
(Decision No. OHS 95-30)
The Right to Refuse
How must the restriction on the right to refuse be determined?
Case #8
Decision: The adjudicator ruled that the hospital employer must provide evidence that hazards are “inherent in the work or a normal condition of employment” when alleging that the right to refuse does not apply.
Place: Mohawk Hospital
Findings: The adjudicator overruled the inspector’s decision that hospital workers did not have the right to refuse just because they worked at a hospital. The employer must bear the burden of proof when seeking to take away the worker’s right to refuse, and the inspector is obliged to consider the evidence prior to rendering a decision.
(Decision No. OHS 17-93)
Case #9
Decision: The adjudicator ruled that in deciding whether or not a correctional officer had the right to refuse under Section 43(3), the inspector had a duty under Section 7 of the Charter of Rights and Freedoms to make a determination in a manner consistent with the principles of fundamental justice. The adjudicator ruled that the inspector was required under Section 43(7) to come to the workplace in order to determine whether the refusing worker was entitled to refuse.
Place: Toronto Jail
Findings: The adjudicator overruled an inspector’s “over-the-telephone” determination that a correctional officer did not have the right to refuse over the employer’s failure to conduct a search for weapons at the Toronto Jail. The adjudicator held that a decision to restrict the rights of a correctional officer based on a telephone interview was not in accord with the principles of fundamental justice under Section 7 of the Charter of Rights and Freedoms. The adjudicator also held that once a work refusal is initiated, it remains a work refusal until an inspector conducts an investigation at the workplace and determines that the worker does not have the right to refuse under Section 43. The adjudicator also ruled that the worker did have the right to refuse because incomplete searches for weapons were not an inherent or a normal condition of employment, and were also likely to endanger the worker.
(Decision No. OHS 97-15)
What is a “normal condition of employment”?
Case #10
Decision: The adjudicator ruled that workers who do not have the right to refuse under Section 43 are entitled to have their health and safety concerns dealt with promptly by an inspector because of the limitations on the right to refuse.
Place: Maplehurst Correctional Centre
Findings: In this decision, the adjudicator set out a “test” for “normal conditions of employment” to mean an established and prevailing practice at the institution. The adjudicator held that the inspector has a responsibility to assess whether the established and prevailing practice provides adequate protection for the worker when the worker expresses his or her concerns about their adequacy. At the same time, assignments that deviate from established and prevailing safe practice cannot be considered normal or inherent in the work and would, therefore, allow the worker to invoke the right to refuse.
(Decision No. OHS 94-21)
Can an employer assign a refusing worker alternative work during the employer’s investigation?
Case #11
Decision: An Appeal Director ruled that alternative work may not be assigned during the first stage of a work refusal. The employer cannot assign the refusing worker alternative work until the employer’s investigation is completed in the presence of the worker and his or her representative, and an inspector has been notified of a continuance of the work refusal.
Place: Accuride /Hutt (May 12, 1989)
Criteria for Unilateral Right to Stop Work
Case #12
Decision: The adjudicator found that in determining whether the unilateral right to stop work should be granted to a certified member, the adjudicator must primarily consider whether the employer has demonstrated a failure to protect the health and safety of workers. In addition, he must consider past success or failure of the bilateral stop work procedure to protect workers from “serious risk” to their health and safety. Such evidence would include consideration of the employer’s health and safety record, and health and safety climate at the workplace as set out in Regulation 243/95.
(Decision No. OHS 95-39)
Confidentiality of medical information
Case #13
Decision: The adjudicator ruled that it was a violation of Section 63(2) of the OHSA for an employer to contact a worker’s doctor about the worker’s physical limitations without the worker’s written consent.
Place: Niagara Detention Centre
Findings: The adjudicator also held that the Workers’ Compensation Act (now Workplace Safety and Insurance Act) did not require the employer to obtain this information in order to comply with its obligation to return the refusing worker to suitable modified work, and therefore could not be used as a defense for violating Section 63(2).
(Decision No. OHS 95-24A)
Maintain a Safe Distance from Inmates
Case #14
Decision: The adjudicator ruled that a correctional officer did have the right to refuse to light an inmate’s cigarette using matches. The adjudicator ordered the employer to develop a procedure that would allow officers to maintain a safe distance from inmates.
Place: Niagara Detention Centre
Findings: The adjudicator held that the worker was entitled to refuse because using matches to light an inmate’s cigarette is not an inherent part of the work nor a normal condition of employment. The adjudicator also found that the situation was likely to endanger the worker, and that the employer was in violation of Section 25(2)(h) by requiring the officer to bring his hands too close to the hatch door when using matches to light a cigarette.
(Decision No. OHS 97-13)
Self-defence training for non-correctional officers
Case #15
Decision: The adjudicator overruled a Ministry of Labour decision to suspend an inspector’s order for the employer to provide self-defence training to its non-correctional officer staff who were required to supervise inmates. The adjudicator reinstated the order for training.
Place: Guelph Correctional Centre
(Decision No. OHS 94-44A)
Correctional officers escorting inmates
Case #16
Decision: The adjudicator found that the Ministry of Correctional Services failed to provide sufficient protection to correctional officers assigned to escort inmates in the community. The decision overturns a number of inspectors’ decisions on work refusals and complaints by correctional officers at several institutions over inadequate protection during community escorts. The adjudicator issued orders that require:
- No less than two officers during escorts;
- Upgraded Kevlar vests to prevent knife penetration;
- ASP expandable batons;
- Pepper spray;
- Training in the use of new equipment, and the avoidance of surprise attacks;
- Inmates must be place in full restraints;
- Provision of special “black box” handcuff devices;
- Direct contact with police;
- Revisions to “hostile situation” policy;
- Restrict visits to family and legal counsel only;
- Vehicles must meet Ministry standardized security specifications;
- Distinct uniforms for correctional officers;
- Fluorescent orange coveralls for inmates on escort;
- Access to CPIC information on inmate being escorted.
(Decision No. OHS 98-05)
Competency of supervisors
Case #17
Decision: The adjudicator found that the employer had failed to ensure that its supervisors were competent as defined by Section 25 (2) of the OHSA.
Place: Whitby Jail
Findings: This decision established that the standard for assessing competency of supervisors must be judged by objective criteria. The adjudicator listed the areas that a manager at a correctional facility must be trained in to establish competency. This list included knowledge of the Act and its regulations as well as established safe operating measures and procedures, all contingency plans, standing orders, the functioning of a joint health and safety committee, and the employer’s and supervisor’s duties under the OHSA.
(Decision Nos. 1926-97-HS, 1927-97-HS)
Other relevant decisions
Inspector must address a workplace illness
Case #18
Decision: The adjudicator ruled that the employer was in violation of Section 25 (2) (h) by continuing to expose workers to “sticky foam,” an unintended by-product in the production of foam insulation.
Place: Johnson Controls
Findings: The adjudicator concluded that the conditions of the workplace experienced by the refusing workers were likely to endanger them. The adjudicator held that in determining the likelihood of endangerment, it is not essential to require a precise determination of what agent produced by the work process is causing illness among the workers. In the Adjudicator’s view the notion of danger in Sec. 43 is broad enough to address adverse health effects experienced by workers even where the immediate cause is not yet known.
(Decision No. OHS 94-32)
Does the right to refuse apply to “hypothetical” hazards?
Case #19
Decision: The adjudicator overruled the inspector and ruled that a work refusal could be based on conditions that might endanger the worker in the future. In these cases, one would have to show a probability that the danger could arise.
Place: Kut-Kwick Mower
Findings: The worker could exercise the right to refuse because he had reason to believe that he was likely to be endangered by a hazard which was likely to develop rather than being immediately present.
(Decision No. OHS 85-22)
What factors must be addressed when applying for a suspension of an inspector’s order?
Case #20
Decision: The adjudicator laid out the factors to be considered by an adjudicator when deciding a request to suspend an inspector’s order or decision pending the disposition of an appeal. These include:
- adverse impact on workers’ health and safety;
- prejudice to the employer’s operation and undue hardship; and
- strong prima facie case for winning the appeal.
Place: Zehrs Markets Ltd./Ellis
(Decision No. OHS 4-91)
More than one union or the existence of non-bargaining unit workers in a workplace
Case #21
Decision: The board found that a newly certified union (CUOE) was entitled to participate in the selection of worker representatives to the JHSC. In the case, 47 workers existed at the workplace, 27 historically unionized with LIUNA, 15 newly organized with CUOE, and five which were non-bargaining unit. Prior to CUOE’s certification, LIUNA chose both worker members of the JHSC. Upon the certification of CUOE, LIUNA was found to now be obligated to participate with CUOE to select the worker members of the JHSC. The decision made no findings about the five non-unionized workers; however the board agreed that prior to the certification of CUOE that LIUNA was entitled to select the worker members of the JHSC.
Place: Canadian Union of Operating Engineers and General Workers v. York Condominium Corp. No. 76 (Health Committee Grievance), [2000]
Case #22
Decision: The board ruled that the OHSA required the engagement of both unions in the decision to select worker representatives to the JHSC. In the case, 63 workers were OPSEU members, compared to 13 AMAPCEO members. The board disagreed that OPSEU could choose both representatives, and also disagreed that representation should necessarily be proportional. Nor is each union necessarily entitled to a member on the JHSC. Rather, the unions should collaborate to select representatives on the JHSC.
Place: Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services),
[2005] OLRB Rep. Jan./Feb. 121.
Case #23
Decision: The divisional court found that where multiple unions exist within a workplace, that the unions are under a legal obligation to consult with each other and agree upon representatives to the JHSC.
Place: Elementary Teachers’ Federation of Ontario v. Ontario (Ministry of Labour),
[2007] O.J. No. 3229.
What is regularly employed?
Case #24
Decision: The Ontario Court of Appeal ruled that independent operators at a trucking company counted as regularly employed in order to be counted pursuant to Sec. 9, Sub. 2(c) of the OHSA to decide whether a workplace should have a joint health and safety committee. In the case, United Independent Operators Limited (UIOL) is a load broker that trucks goods. Its office had 11 workers (dispatchers and office staff) and contained a lunch room and seven offices within a building that acted as the central base of the trucking operation. Between 30-140 truck drivers moved loads, and called the office each day for dispatch and assignment of their loads and destinations. The truckers attended the office twice a month to pick up cheques and submit paperwork. The appeal court judge set out the dictionary meaning of “regular” as “acting, done, recurring, usual, and occurring at fixed or pre-arranged intervals.” It was normal or customary for UIOL to have between 30 and 140 truck drivers working for it. Thus, on the dictionary meaning of “regular”, UIOL regularly employed truck drivers. In para. 63, “The OHSA is a remedial public welfare statue whose purpose is to guarantee a minimum level of health and safety protection for workers in Ontario. This broad purpose must inform the interpretation of Sec. 9 Sub.(2) (a) which requires the establishment of a JHSC, an important mechanism in achieving the legislative objective of enhanced worker safety.”
Place: Ontario (Labour) v. United Independent Operators Limited, 2011
ONCA 33 Date: 20110118 DOCKET C51442
Case #25
Decision: This case provides a good discussion about what “regularly employed” means. For example, regularly employed is not only those present at the workplace at any one time, it also includes other employees—full-time, part-time, and temporary —who are also employed at the workplace but not present simultaneously. Temps count if they have a pattern of availability and a pattern of usage, even if their pattern and usage is irregular in nature.
Place: Brewers Retail Inc. and Ministry of Labour, and United Food and Commercial Workers (UFCW) Local 2782 [1995]
O.O.H.S.A.D. No. 20 Decision No. OHS 95-20 File No. AP. 94-117
(by Dana Randall)
Part M
OPSEU/SEFPO health and safety policies
OPSEU/SEFPO Policy on Health and Safety Committees
- Each local union must form a standing union health and safety committee (committees) that is responsible and accountable to the local executive committee (LEC).
- Each committee shall be composed of an appropriate number of members who are appointed by the LEC as health and safety committee persons.
- All health and safety committee persons shall serve on the committee for a term of office determined by the LEC and shall serve at the pleasure of the LEC.
- All health and safety committee persons must have completed at least one (1) weekend health and safety school, and by the end of their first term in office must have completed a 30-hour health and safety program.
- Health and safety committee persons shall focus on health and safety matters including participation as union representatives on joint (union-management) health and safety committees.
- The union health and safety committee shall be responsible for the following:
- investigating members’ complaints and assisting in obtaining a remedy.
- inspecting the workplace as per the provision of the legislation or collective agreement.
- conducting or arranging health and safety training for local members.
- regularly informing members about health and safety hazards and their rights under the legislation and their collective agreement.
- representing members during Ministry of Labour inspection tours, work refusals and health and safety hearings.
- calling in the Ministry of Labour inspectorate when concerns are raised by individual members.
7. Union representation of joint (union-management) health and safety committees shall
consist of at least one (1) member of the LEC, and an appropriate number of health
and safety committee persons appointed by the LEC from the union health and safety
committee.
8. Union representatives on joint committees shall be solely accountable to the LEC and
the membership at all regularly scheduled meetings.
9. The union health and safety committee shall meet as required and report to the LEC
and the membership at all regularly scheduled meetings.
10. Each health and safety committee person shall be provided with a wallet-size
certificate and lapel pin with a health and safety designation recognizing their status
within the local union.
OPSEU/SEFPO policy on selection of certified members and trainers
In order to ensure that certified members on joint committees remain accountable and responsible to the local union and the members they represent the following policy has been developed by the OPSEU/SEFPO’s Board of Directors. It is based on the principle that the local union is the basic building block of our union, and that it is the elected officials of the local union that have been empowered to represent the interest of its members:
- Certified members on the joint health and safety committee must be appointed by the local union executive and are directly responsible and accountable to the local executive and serve at the discretion of the local executive.
- All certified members are required to undergo political orientation by completing OPSEU/SEFPO’s course on health and safety.
- Certified members will be appointed for a set term of office determined by the local executive. However, the local executive may remove any certified member who has not satisfactorily represented the health and safety interest of the members.
- Worker certification instructors must be selected by the union and undergo union orientation in health and safety by completing OPSEU/SEFPO’s course on health and safety.
It is important that the OPSEU/SEFPO representatives on JHSCs are linked effectively with their local union and that they see themselves as advocates for their members and a key part of the union. While employers promote the popular myth that health and safety is non-adversarial and based on partnership, in reality workers and unions have little say in health and safety decision-making unless they fight for their rights. The employer objective is to disarm our representatives by viewing them as safety technicians who are not first and foremost local union officials who are representative and accountable to their members.
Part N
OPSEU/SEFPO health and safety publications and resources
Publications
- Violence at Work (revised 2017)
- An Injured Worker’s Right to Return to Work Safely (1999)
- Safe Work, Healthy Work: A Guide for Home Care Workers (1999)
- Office Ergonomics Workbook: published by Occupational Health Clinics for Ontario Workers; available on OPSEU/SEFPO Health and Safety website
OPSEU/SEFPO health and safety courses
Health and Safety Level 1
This course is designed for members and stewards who want to become more involved in health and safety activities in their workplace. There is a strong focus on health and safety in legislation to enable participants to use the legislation effectively in their own workplaces. Participants work in groups to explore the legislation and to gain a better understanding of their rights and employers’ obligations under the Occupational Health and Safety Act and its regulations. Participants are introduced to the concepts of hazard identification, assessment and control and develop a greater understanding of the components of an effective health and safety system.
Health and Safety Level 2
This course is designed for Health and Safety committee members and union activists with a strong interest in Health and Safety. Participants learn how to be more effective members of their JHSC’s as they work in small groups learning how to better identify, categorize, and control hazards. Using case studies and examples from their own workplaces, participants learn how to improve workplace inspections, and how to begin accident and illness investigations. The course offers the opportunity to prioritize and strategize around health and safety problems and to address problems specific to participants’ own workplaces. The course builds on the material in OPSEU/SEFPO’s Level 1 course and assumes that participants have a basic knowledge of the Occupational Health and Safety Act.
Health and Safety Level 3
This course builds on concepts covered in OPSEU/SEFPO Health and Safety Level 1 and 2. OPSEU/SEFPO Health and Safety Level 3 is designed to help union activists, worker joint health and safety committee members, health and safety representatives, and workers to address complex hazards using their local health and safety systems and external resources. Drawing from their own experiences, participants will strategize effective approaches to complex hazards, such as investigating concerns about potential occupational cancers and ergonomic hazards. Participants will also learn basic approaches to investigating indoor air quality complaints. They will discuss the precautionary principle and the ALARA principle and understand the centrality of these two concepts in health and safety activism. Participants will develop strategies to address ergonomic hazards, develop recommendations and practice facing the employer to propose their recommendations, enhancing their organization skills and confidence to represent members in their efforts to achieve safer and healthier workplaces.
Taking action on workplace stress
This course will develop the capacity of workers to take action on workplace stress using a health and safety framework and union tools. The course will help participants identify workplace factors that negatively affect workers’ health and wellbeing and gain familiarity with terminology associated with workplace stress. Participants will share stories from their workplaces and strategize how to resolve some of the issues using the tools provided.
OPSEU/SEFPO Education is offered through regional education sessions. Check the OPSEU/SEFPO website or talk to your Local President for information.
Other important resources and collaborative projects:
Mental Injury Tools for Ontario workers (MIT toolkit).
The Mental Injury Toolkit is a resource book (and three short videos) for activists who want to take action on workplace stress in their workplace. The kit walks you through all you need to know about workplace stress.
Part 1—Why should we care?
Part 2—Workplace Stress: Assumptions, terminology, and approaches
Part 3—What are other jurisdictions doing?
Part 4—What are my legal rights and protections? (focus on Ontario)
Part 5—What does a workplace action plan look like?
Part 6—Resources
Public Services Health and Safety Association (PSHSA) Violence, Aggression & Responsive Behaviour (VARB) Tools
OPSEU/SEFPO and other unions worked in collaboration with PSHSA and other stakeholders to develop five toolkits for workplace violence prevention in healthcare. These kits help workplaces respond to mandatory provisions in the OHSA regarding summoning immediate assistance, providing information about a person with a history of violence and risk assessment.
The VARB toolkits are:
- Organizational Risk Assessment
- Individual Client Risk Assessment
- Flagging
- Security
- Personal Safety Response System.
For further information on health and safety matters, contact your staff representative or OPSEU/SEFPO Health and Safety Officers at workersafety@opseu.org.
