HRP 7121- OCCUPATIONAL HEALTH AND SAFETY
Legislation FAQ Assignment
Date- 06/11/2023
Questions:
 We have never had an official Health and Safety Representative here, do we need one?”
 “What do we do if an employee refuses to work because they say a machine is unsafe?”
 “What training are we required to provide to our new hires?”
 “What policies are we obligated to have?”
We have never had an official Health and Safety Representative here, do we need one?”
For this research work, I will assume that the manufacturing company we are working with is into the
manufacturing of Biological and Chemical agents so that I can be more precise and definitive in my
research.
To begin with, it is of note that any company in manufacturing in Canada is governed by the
Occupational Health and Safety Act of Canada along with its many regulations, one of which is the
R.R.O. 1990, REGULATION 833 CONTROL OF EXPOSURE TO BIOLOGICAL OR CHEMICAL agents which
will be the governing law that we will refer to in this instance. This will be referred to because
regulations explain how the general intent of the act will be applied in specific circumstances.
Factories are defined according to the Act as a building or place other than a mine, mining plant, or
place where homework is carried on, where any work is performed by way of trade or for the
purposes of gain in or incidental to the making of any goods, substance, article or thing or part
thereof- Occupational Health and Safety Act Section (1) (1) (a) (iii).
Furthermore, as explained by Lee Ann Morgan, A safety Officer is someone who monitors workplace
activities to ensure that workers comply with company policies and government safety regulations.
They have the responsibility of policy development, safety inspections, training, as well as
compliance with relevant laws and regulations relating to safety - LEE ANN MORGAN- JUNE 29,
2018. Of note is that the Occupational Health and Safety Act in Section 4(2) states that in
administering the provisions of the Act, the Minister’s powers and duties also cover the promotion
of occupational health and safety and promote the prevention of workplace injuries. Hence, since
there is a coming together of more than 50 workers, there is bound to be injuries especially since,
in the instance case, there is exposure to ‘hazardous materials’ as defined in the definition section
of the Act in the course of work and process of manufacturing which the Law above and Regulation
regulate. Hence, there is a need for an appointment and employment of an office Health and Safety
representative to manage and direct the affairs of health and safety to ensure no contravention of
the law is carried out, save the company from loss of monies, mitigate against loss of life and
properties and reduce the risk and exposure to legal obligations as a result thereof. The significant
reasons for managing Health and Safety by a representative can be summarized into 3;
1. Moral reasons.
2. Financial reasons.
3. Legal reasons.
As provided by the Act, the duties of the Health and Safety officer/ representative include the
power,
(a) to obtain information from the constructor or employer concerning the conducting or taking
of tests of any equipment, machine, device, article, thing, material or biological, chemical, or
physical agent in or about a workplace for occupational health and safety;
(b) to be consulted about and be present at the beginning of testing referred to in clause (a)
conducted in or about the workplace if the representative believes his or her presence is
required to ensure that valid testing procedures are used or to ensure that the test results are
good; and
(c) to obtain information from the constructor or employer respecting,
(i) the identification of potential or existing hazards of materials, processes, or equipment,
and
(ii)
health and safety experience and work practices and standards in similar or other
industries of which the constructor or employer knows- Section 7 (11) (a-c)
Their duties and functions cannot be under-emphasized as it Includes
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Conducting health and safety audit
Identifying potential hazards, risks, and dangers
Investigating incidents, creating incident reports
Making recommendations regarding health and safety
Conducting governmental and machine inspections
Attend health and safety committee meetings and advise the committee and employer
appropriately
Reviewing effectiveness and practicability of health and safety measures- TINUS BOSHOFFDirector Health and Safety South Africa.
More importantly, Section 9 (2) (a) of the Act states that a Joint Health and Safety Committee is
needed at a workplace where twenty or more workers are regularly employed. In this instance, there
are more than 20 workers. Hence, the least that could be done is to ensure that a Health and Safety
Representative is employed to meet up with the provisions of the law.
The provisions of Section 25 (1) of the Act, which provides that an employer should ensure protective
devices are provided, well maintained, and in good condition, are used as prescribed, and further
provisions in subsection (2) (a), (c), (d) which states that an employer needs to provide supervision to
a worker to protect the health or safety of the worker, appoint a competent supervisor and acquaint
a worker or a person in authority over a worker with any hazard in work and in the handling, storage,
use, disposal, and transport of any article, device, equipment or a biological, chemical or physical
agent- Subsection 2(d) can be inferred to mean that the services of a health and safety representative
will be needed to carry out this functions as the employer can then have time to focus more of his
time on business building. Also, the presence of a health and safety representative will ensure that
the actions as prescribed by the Act are followed explicitly.
In conclusion and in support of the fact that our company under review needs a Health and Safety
Representative, Section 3 of the R.R.O. 1990, Regulation 833 Control of Exposure to Biological or
Chemical Agents provides that
(1) Every employer shall take all measures reasonably necessary to protect workers from
exposure to a hazardous biological or chemical agent because of the storage, handling,
processing, or use of such agent in the workplace. R.R.O. 1990, Reg. 833, s. 3 (1).
(2) The measures to be taken shall include the provision and use of,
(a) substitution of the hazardous biological or chemical agent;
(b) engineering controls;
(c) administrative controls, including work practices;
(d) hygiene facilities and practices, and
(e) if section 7.2 applies, personal protective equipment. O. Reg. 185/19, s. 2.
Administrative controls, as provided in subsection 2 (c ) above, will include a Health and Safety
Representative and his establishing safe workplace practices and policies.
“What do we do if an employee refuses to work because they say a machine is unsafe?”
Section 28(1) (a) of the Occupational Health and Safety Act outlines that a worker shall work in
compliance with the provisions of this Act and the regulations. In the definition section of the Act, a
worker is defined as a person who operates or provides services for monetary compensation. As long
as there is a contract between an employer and worker to do specific work for monetary
compensation, the worker must carry out duties assigned to him.
A contract between the two parties governs an employee-employer relationship. A contract of
employment is any agreement where one person agrees to employ another as an employee or worker,
and another decides to serve the employer as an employee. The relationship between the employer
and employee gives rise to duties that are recognized, backed by, and enforceable in law - Beijing Law
Review, Vol.12 No.2, June 2021
The rule at common law is that an employee must obey the orders of his employer Linford v Stephen
(1819). “It has long been part of our law that a servant repudiates the contract of service if he wilfully
disobeys the lawful and reasonable orders of his master” Pepper v Webb [1969], and this duty to obey
is embedded in the work schedule. In carrying out his duties, the worker is entitled to a safe and
healthy work environment and protective equipment for his work schedule. Once the appropriate
tools and conducive environment are provided, a worker can also render his services, skills, and
expertise to his employer.
However, to every rule, there is an exception; section 43 (3) of the Act gives an exception to when an
employee may refuse work where they have reason to believe that,
(a) any equipment, machine, device, or thing the worker is to use or operate is likely to endanger
himself, herself, or another worker;
(b) the physical condition of the workplace or the part thereof in which they work or are to work
is likely to endanger himself or herself
(c) any equipment, machine, device, or thing he or she is to use or operate or the physical
condition of the workplace or the part thereof in which he or she works or is to work is in
contravention of this Act or the regulations and such contravention is likely to endanger
himself, herself or another worker. R.S.O. 1990, c. O.1, s. 43 (3); 2009, c. 23, s. 4 (2).
Therefore, since the machine is unsafe and adjudged to cause harm or endanger the worker or
workers, the employee is backed by law to refuse to work. However, this refusal to work will first have
to be supported by a report to the employer or supervisor or Health and Safety representative that
the use of the Machine occasions a hazard. Section 28 (1) (d). upon the report of the refusal to work
and the machine that is found to be faulty, an investigation will be carried out by the health and safety
representative -Section 43 (4) (d), (this further underscores the need for a health and safety
representative in a large company),
The worker refusing to work is also covered by The Act as regards his entitlement to be paid as
provided in Section 43 (13) because he is deemed to be at work, and he will be paid at the proper
regular rate. This will also mean that the worker is available at work during the regular working hours
while the investigation of the faulty machine is going on; in this case, the worker could be assigned to
other alternative work that falls during the regular working hours, and if a reasonable alternative work
is not practicable, different directions as to work may be given to the worker—section 10.1(a), (b).
“What training are we required to provide to our new hires?”
Training usually differs and is based on employee needs and requirements. However, there exists basic
and necessary training necessary for new hires. Skills training for new hires remained a high priority
among Canadian employers in 2013, according to a survey of 500 employers from BMO Bank of
Montreal. More than one-third (38 percent) of small businesses said new hires require basic training,
while another 22 percent have found new hires require significant training and guidance. But the need
for training for new hires is most prevalent among large corporations, where three in four employers
said new hires need basic (47 percent) or significant (27 percent) training. - Report by Canadian
HRReporters Survey Retail and construction sectors most likely to need training- Mar 26, 2013.
When a new employee joins the company, it is critical to provide them with training specific to the
company and their role and responsibilities. Such necessary training that are required to be delivered
and their importance are outlined below;
1. Employee orientation/ Onboarding/Induction
This is the first and most crucial training a new employee must undergo. It introduces new employees
to the organization's history, mission, and values. It gives new employees an overview of the
organizational structure and a better understanding of their specific roles concerning the objectives
and goals. Company procedures and policies are outlined in this training; it is a medium to make them
feel welcome and comfortable and establish clear standards that help reduce disputes and limit
liability. An employee handbook could be provided in this session where clear standards that help
reduce conflicts and limit liability are provided. The onboarding process is critical and can be carried
out before the first day of resumption; a welcome email is a good idea to make the new hire feel
wanted; this email could have details such as parking instructions, dress code, office culture scheduled
training, and phone numbers of supervisors and managers
2. Health and safety training
The Canadian Centre for Occupational Health and Safety (CCOHS) helps create and sustain healthy
workplaces by providing employers and their organizations with trusted, authoritative training and
education programs. The company can key into this to ensure that new hires have adequate training
to perform their duties in a safe workplace. Pocket guides and publications produced by CCOHS are
reviewed by expert representatives from the government, employer, and labor for technical accuracy
and readability.
The Canadian Centre for Occupational Health and Safety (CCOHS) is an independent departmental
corporation under Schedule II of the Financial Administration Act. It is accountable to Parliament
through the Minister of Labour. It is the primary agency with the responsibility in Canada to advance
safe and healthy workplaces whose activities are supported by workers' compensation committees
and agencies of provinces and territories.
The Occupational Health and Safety Act, in the Ontario Occupational Health and Safety Awareness
and Training Regulation, provides that basic health and safety awareness training should be provided
for employees that meet the requirements as outlined by the Regulation below: Section 1 (3)
Occupational Health and Safety Awareness and Training Regulation.
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A basic occupational health and safety awareness training program for workers must
include instruction on the following:
1. The duties and rights of workers under the Act.
2. The duties of employers and supervisors under the Act.
3. The roles of health and safety representatives and joint health and safety committees under
the Act.
4. The roles of the Ministry, the Workplace Safety and Insurance Board, and entities designated
under section 22.5 of the Act with respect to occupational health and safety.
5. Common workplace hazards.
6. The requirements set out in Regulation 860 (Workplace Hazardous Materials Information
System (WHMIS)) with respect to information and instruction on hazardous products.
7. Occupational illness, including latency.
3. Workplace Hazardous Materials Information System (WHMIS). This training is peculiar to our
company, which is involved in the handling and production of biological and chemical agents.
During this crucial training, the provisions of Section 37 of the Health and Safety Acts will be
highlighted; such activity will help new hires identify terms such as Safety Data Sheet, Hazardous
materials, and the identification and handling of all such materials. The Act provides as below;
Hazardous material identification and data sheets
37 (1) An employer,
(a) shall ensure that all hazardous materials present in the workplace are identified in the
prescribed manner;
(b) shall obtain or prepare, as may be prescribed, a current safety data sheet for all hazardous
materials present in the workplace and
(c) shall ensure that the identification required by clause (a) and safety data sheets required by
clause (b) are available in English and such other languages as may be prescribed. R.S.O. 1990,
c. O.1, s. 37 (1); 2015, c. 27, Sched. 4, s. 2 (1, 2).
PENALTIES
It is imperative to provide the company with the penalties for not providing the necessary health and
safety awareness training; this could lead to putting the employee's safety at risk; the more the
employee is informed via training, the greater the chances of reducing safety hazards and workplace
injuries, Without the proper awareness training for employees, there will be a higher number of
injuries and lost time due to injuries as well as a risk of employee lawsuits.
https://acuteservices.com/health-and-safety-awareness-training-the-consequences-of-not-doingit/
A person convicted in the ensuing lawsuit is, according to the Occupational Health and Safety Act
section 66(1), (2), subject to;
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a fine of up to $1,500,000 for a corporation
a fine of up to $1,500,000 for directors and officers of corporations and/or up to 12 months
imprisonment
a fine of up to $500,000 for all other persons and/or up to 12 months imprisonment
The Criminal Code has also made provisions for the punishment of health and safety breaches in a
company, and this will apply to our company mainly because of the peculiarity of the type of
manufacturing carried out in the company. The Code provides in Sections 220, 221, and 217.1,
criminal negligence causing death which results from a breach of legal duty and, in this case, duty to
train and adequately identify hazardous materials emanating from the Occupational Health and Safety
Act of Ontario, which is a provincial statue and also amounts to a wanton or reckless disregard for
lives and safety of others carries the maximum penalty of life imprisonment if proven for an individual
and in case of an organization, a fine as prescribed by the discretion of the court. The Supreme Court
went further to describe what a wanton disregard for lives and safety means in the case of R v J(F),
[2008] 3 SCR 215 to mean a “marked and substantial departure” from what a reasonably prudent
person would have done in the same circumstances. A reasonable, mindful employer is expected to
provide adequate training for a new hire.
What policies are we obligated to have?
The following policies are imperative for safety.
1. Health and Safety Policy- The HSE policy will be hung in a conspicuous place at the entrance
to the company and work area.
2. Quality Policy- this will highlight the quality of work and products to be manufactured. Each
output manufactured must undergo a quality test before it will be sold to consumers.
3. Anti-Harassment/ Discrimination Policy- this is provided to all employees so that they will be
acquitted of the company’s policy on harassment and penalties for breach thereof.
4. Security Policy
5. Use of Social Media Policy.
6. Employee Code of Conduct Policy
7. Substance Abuse Policy
8. Bring Your Own Device (BYOD) Policy – where applicable
9. Whistle Blower Policy
REFERENCES.
1. A Plain Language Guide to Bill C-45-Amendments to the Criminal Code Affecting the Criminal
Liability of Organizations
2. Beijing Law Review, Vol.12 No.2, June 2021
3. Beijing Law Review. https://doi.org/10.4236/blr.2021.122018
4. Bill C-45: An Act to amend the Criminal Code (Criminal Liability of Organizations) (LS-457E)
5. CanOSH - Programs (this section provides information on occupational safety and health (OSH)
systems and programs facilitated by agencies)
6. CCOHS: Canada's National Centre for Occupational Health and Safety information Canadian
Centre for Occupational Health and Safety Act S.C., 1977–78, c. 29
7. Collins, H., Ewing, K. D., & Mccolgan, A. (2012). Labour Law (p. 7). Cambridge: Cambridge
University Press. https://doi.org/10.1017/CBO9781139227094
8. Criminal Code
9. E-Laws | Browse By Title - Consolidated Law (access to OHSA and related Regulations for Ontario)
10. E-Laws | Browse By Title - Consolidated Law (access to EPA and related Regulations Ontario)
11. Emudainohwo, E. (2020). The Importance of an Industrial Court in the Interpretation of Labour
Statutes.
Commonwealth
Law
Bulletin,
46,
300-313.
https://doi.org/10.1080/03050718.2020.1781675
12. Emudainohwo, E. (2021). Analyzing the Duties of Employer and Employee in the Nigerian Law.
13. Environmental Protection Act, R.S.O. 1990, c. E.19 (Ontario)
14. Health and Safety | Ontario Ministry of Labour
15. H&S Management System (example of an occupational health and safety management system)
16. https://acuteservices.com/health-and-safety-awareness-training-the-consequences-of-notdoing-it/
17. https://www.jobbank.gc.ca/trend-analysis.
18. Law Document English View | Ontario.ca. https://www.ontario.ca/laws/statute/90o01/v2
19. Linford v Stephen (1819) 69.
20. Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (Ontario)
21. ONTARIO REGULATION 297/13- Ontario Health and safety awareness training
22. Pepper v Webb [1969] 2 ALL ER 216,248, per Karminsk J.
23. Wikipedia