Joint health and safety committee required at Ontario workplaces with 20 or more workers, including contracts, says appeal court
Employers in Ontario are required to establish joint health and safety committees (JHSCs) at workplaces where 20 or more employees are regularly employed, according to the province’s Occupational Health and Safety Act (OHSA). However, the phrase “regularly employed” refers not just to employees, but also to independent contractors who regularly work at the workplace, the Ontario Court of Appeal has ruled.
Woodbridge, Ont.-based United Independent Operators Limited (UIOL) is a load broker that distributes aggregate (crushed stone, sand and gravel) to its customers through the services of truck owners and operators, to whom the company contracts the work. UIOL has only one office with 11 employees and contracts work to between 30 and 140 independent truck drivers, at any one time.
Before getting work from UIOL, truck drivers must attend an orientation session at its office that includes reviewing the company handbook, viewing a safety video and meeting the dispatcher. After that, they are essentially on their own: they must call in daily to get work (which they may refuse), they pay all truck expenses, buy their own safety equipment and no statutory deductions are made from their pay. The drivers are required to have the UIOL banner on their trucks when working for the company so they can be easily identified by customers.
Employer charged after accident for not having safety committee
The Ministry of Labour was called in to investigate after an accident at a customer’s worksite in July 2004. A truck driver was crushed between his truck and another UIOL trucker’s vehicle, suffering a broken pelvis and two broken legs. The Ministry ordered UIOL to establish a JHSC, which they did. However, UIOL was also charged for failing to have a committee when the accident happened.
The Ontario Occupational Health and Safety Act (OHSA) compels employers to establish joint health and safety committees at workplaces where “twenty or more workers are regularly employed.” This short phrase proved surprisingly troublesome for UIOL.
UIOL argued that “regularly employed” meant people who are in traditional employment relationships. The truck drivers, it said, were not in an employment relationship with UIOL and the Ontario Workplace Safety and Insurance Board, Revenue Canada and the province’s employment standards branch considered them independent contractors. The trial court agreed in November 2007, finding the phrase “regularly employed” only applied to workers who were in a traditional employment relationship, not independent contractors. Since the truck drivers were entitled to refuse employment opportunities, could work for someone else, owned and maintained their own vehicles, they were not employees of UIOL, said the trial court. In October 2009, the Ontario Court of Justice upheld the decision.
Broader definitions in OHSA
However, after the Ministry of Labour appealed, the Court of Appeal rejected this argument because it found the definition of “employer” in the OHSA includes people who use the services of contractors and other non-employees in order to serve the purpose of promoting public health and safety. Under the OHSA, a worker is “a person who performs work or supplies services for monetary compensation” and the truck drivers fell under this definition, said the Court of Appeal.
“Interpreting (the definition of ‘regularly employed’) as requiring JHSCs only in workplaces in which employers and workers stand in a traditional employment relationship would seriously curtail the scope of (the act) and run contrary to the purpose of the OHSA,” said the Court of Appeal. “The narrow interpretation would interfere with the attainment of the purpose of the OHSA.”
The Court of Appeal acknowledged the difficulty in maintaining a JHSC when the members of the committee are independent contractors who control their own schedules in many ways and are frequently off-site. Nevertheless, it pointed to the fact that UIOL had managed to overcome these difficulties in establishing its own JHSC in response to the ministry’s order following the accident.
The good news for UIOL was that the Court of Appeal stayed the charges due to its immediate compliance with the ministry’s order and because the case involved a novel question of law.
