The inspector cometh

Companies encouraged to self-audit more, while governments add muscle for those that don’t comply
By Joyce Grant and David Brown
|Canadian HR Reporter|Last Updated: 01/31/2005

Ensuring the workplace is safe is the employer’s responsibility. That’s the common thread underlying health and safety legislation across Canada. Get to know the rules and audit yourself before the government has to.

Provincial governments are busy trying to improve workplace safety statistics, although the jury is still out on the impact of such initiatives. But if actions match words, firms that don’t comply with H&S legislation will find themselves mired in legal problems.

“We’re gonna kick your ass,” is how Alberta Human Resources and Employment Minister Clint Dunford put it as he warned employers to comply with occupational health and safety codes.

Dunford’s threat accompanied the 2003 introduction of a new OHS code which combined existing regulations and new requirements into one document. Unlike regulations (which must have cabinet approval) or an act (which requires approval from the legislature), the code requires approval only from the minister.

Alberta also introduced a high profile and dramatic safety ad campaign, appealing to employers to protect young workers. The campaign features pictures of coffins, employees with prostheses and the mother of a teenager who was killed at work.

The province also has a unique program administered by its Workers’ Compensation Board. Employers can reduce premiums by up to 20 per cent by joining the Partners in Injury Reduction program.

The big talk from the government definitely got a lot of people’s attention, but they aren’t yet convinced real changes are in the works, says Rob Stewart, a workplace safety and WCB consultant with Calgary-based Pragmatic Solutions.

“We haven’t seen a whole lot of prosecutions come through yet,” he says. There has been some increase but not as much as many people thought, he says. Until the government starts prosecuting more employers, people will remain skeptical, he predicted.

Avoiding negative headlines

But interestingly, says Stewart, much of the pressure on Alberta employers to improve health and safety records comes not from the fear of government prosecution but from the fear of losing business. Big companies in the oil and gas sector, for example, aren’t particularly worried about fines of even $500,000, he says. But they don’t like bad press. In a couple of instances, large companies were cited for accidents resulting from the lax health and safety practices of a contractor.

As a result, Canadian contractors began having trouble finding work, he says. The large employers wanted to know exactly how much health and safety training was being done by the contractor; how often training was conducted; how many accidents they had; how many lost days. And the contractor had to have all of that documented before it could get the job, he says. “That has been more of a wake-up call to senior level executives than anything else,” he says.

There is no question that health and safety compliance is a lot of work, Stewart says. But employers will be disappointed if they conduct audits solely for the sake of passing inspections, he adds.

In one case, following an accident, a company was fined $125,000 for failing to ensure its workplace was safe. Just before the accident, though, an inspector had given the workplace a passing grade. After an accident, inspectors come looking to build a case, says Stewart. The lesson: organizations need to have someone thinking about health and safety year round — not just before an inspection or audit. Most importantly, the company must be thoroughly documenting everything it does to enforce health and safety precautions. Each time an employee is reprimanded for not wearing a hard hat on the job, that should be documented, says Stewart.

To become more proactive, many companies set up an audit pool system, in which companies within the same industry audit one another. Some companies hire consultants to help them through the maze of legislation. The rules can be confusing, not only from province to province, but between the federal and provincial governments. Cross-border firms also have to worry about differences between Canada and the United States. (If you’re referring to “safety and health” legislation, for instance, you’re either talking about Manitoba or the U.S. because those are the only jurisdictions that reverse the order of the words.) It’s no wonder people are confused.

There are 13 different health and safety regulators across the country and the provinces tend to borrow each other’s ideas, sometimes down to the actual wording in codes.

Ontario’s Occupational Health and Safety Act used to be considered the most progressive, says Toronto-based H&S consultant Yvonne O’Reilly. “But not in the last 10 years. It’s been surpassed by other provinces.”

One of the problems was a real decline in the government’s ability to enforce health and safety legislation, says Daniel Ublansky, a lawyer and director of the Toronto Workers’ Health and Safety Legal Clinic.

“I think there has always been a lack of enforcement and that has been well-known in the province and for many employers that is all they need to know. No matter how good the laws are, they know they will not be enforced. Of if they are enforced, it is not very strongly,” he says. So they are willing to play roulette: take a chance and hope that nothing happens.

More inspectors

Ontario is working to restore its reputation as one of the most aggressive provinces, with the most inspectors and the highest fines, says O’Reilly. The government wants to decrease workplace accidents by 20 per cent, or 60,000, over the next four years. It plans to nearly double the number of inspectors in the province by 2008 (to 430 from 230).

Employers that comply probably won’t have much to worry about, says Cheryl Edwards, head of the OH&S practice group at Toronto law firm Stringer Brisbin Humphrey. But employers with a track record of non-compliance “can probably expect more attention than they would like.” Firms that haven’t had an inspector visit for a few years can expect a knock on the door.

Another unique aspect in Ontario is its WSIB-administered Workwell program, which levies heavy fines against employers with poor safety records.

It is true there will be more inspectors but the increase really only reverses some of the changes made in the ’90s, says Ublansky. The 200 inspectors will take the total number just past what it was in the late ’80s.

What’s more, the Ministry of Labour also has real administration flaws — flaws which were highlighted by the Ontario Auditor General last summer.

The ministry had a poor record on following up on non-compliant firms and when employers reported compliance, there was seldom any confirmation by the ministry, says Ublansky. “If you are an employer, and you get a written order against you, that doesn’t necessarily mean anything is going to happen,” he says.

British Columbia has also given its officers more muscle in the form of administrative penalties, which can be handed out on the spot when a company is found to be in contravention of the province’s Workers’ Compensation Act. Penalties are calculated based on the premiums paid by the employer, and how often the company has been non-compliant.

One of the strongest H&S jurisdictions is Manitoba, says O’Reilly. Companies that can comply with every detail in Manitoba’s legislation can consider themselves well-covered. The province’s legislation is highly detailed and is designed to allow employers to audit themselves. Its Workplace Safety and Health Act was revised a couple of years ago to give companies step-by-step instructions about how to comply with the legislation. Manitoba, along with other provinces such as Nova Scotia, has an online audit form to help employers conduct their own audits.

Nova Scotia’s Occupational Health and Safety Act underwent a significant revamp after the Westray coal mine disaster in 1992. Its legislation can be used as an example for anyone in any province, says O’Reilly, because of its fine detail. “I consider them to be pretty progressive,” she says. “They require employers to do a lot, not only implement a program but be able to prove it’s effective — the key to a due diligence defence.” They also require written instructions for any job that involves a hazard, a recommended safety practice in any province, but a mandated requirement in Nova Scotia.

Canadian HR Reporter’s Insight section features health and safety consultant Hilary Amolins, who looks at an employer’s moral obligation to provide a safe workplace. Click on the "related articles" link.

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