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The Occupational Health and Safety Act and the Internal Responsibility System

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The Occupational Health and Safety Act and the Internal Responsibility System Osgoode Hall Law Journal Article 3 Volume 24, Number 2 (Summer 1986) The ccO upational Health and Safety Act and the Internal Responsibility System Richard Fidler Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Fidler, Richard. "The cO cupational Health and Safety Act and the Internal Responsibility System." Osgoode Hall Law Journal 24.2 (1986) : 315-352. http://digitalcommons.osgoode.yorku.ca/ohlj/vol24/iss2/3 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The ccO upational Health and Safety Act and the Internal Responsibility System Abstract Government officials' laxness in enforcing Occupational Health and Safety Act standards was excused by the Labour Relations Board on the grounds that under the 'internal responsibility system' (IRS) the inspectors' primary role is not to police the workplace but to facilitate workers' cooperation with management in reducing hazards. The uthora argues that the IRS philosophy, borrowed from the 'equal-partner' ideology of collective bargaining law, has subverted the regulatory intent of the legislation by reinforcing worker powerlessness in the industrial hierarchy and undermining prescriptive standard setting. He criticizes the Board's reasoning and proposes measures to strengthen enforcement of the Act This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol24/iss2/3 THE OCCUPATIONAL HEALTH AND SAFETY ACT AND THE INTERNAL RESPONSIBILITY SYSTEM By RicHARD FIDLER* Government officials' laxness in enforcing Occupational Health and Safety Act standards was excused by the Labour Relations Board on the grounds that under the 'internalresponsibility system' (s) the inspectors' primary role is not to police the workplace but to facilitate workers' cooperation with management in reducing hazard&s The authorargues that the IRS philosophy, borrowedfrom the 'equal-partner' ideology of collective bargaininglaw, hassubverted the regulatoryintent of the legislation by reinforcing worker powerlessness in the industrial hierarchy and undermining prescriptivestandard setting. He criticizesthe Board'sreasoning and proposes measures to strengthen enforcement of the Act It's a matter of concrete hazards, not whether Stan Gray gets along with the company. To ensure safety, if you have to be hostile, so be it. Mr. Bergie's job was to enforce the Act, not to ensure that the company and the union get along.... [T]he Act reflects an inherent adversarial relationship. - Stan Gray' I. INTRODUCTION During the 1970s, Ontario overhauled its workplace safety legislation. The result of this reform was the Occupational Health and Safety Ac 1978 (OHSA). 2 This Act incorporates a number of provisions sought by the organized labour movement, such as increased protection for workers refusing unsafe work,3 mandatory appointment of worker health and safety representatives,4 procedures for designating and controlling the use of toxic substances,5 and increased penalties for contraventions of the Act.6 © Copyright, 1985, Richard Fidler. * Of the Ontario Bar. The author gratefully acknowledges the helpful comments on an earlier draft of this article of Professors Eric Tucker and Harry Glasbeek, and James Hayes of the Ontario Bar. I Quoted in Stanley Gray v. LJ. Bergie (1984), [1984] O.L.R.B. Rep. 177 at 202. 2 S.O. 1978, c. 83, now R.S.O. 1980, c. 321. The Act came into force on 1 October 1979. 3 R.S.O. 1980, c. 321, ss 23-24. 4 Ibid ss 7(1), 8(8). The worker representatives are mandatory only where twenty or more workers are employed in the work place or project. However, the Minister may order their appointment at smaller work sites (s. 7(2)). 5 Ibid ss 20-22. 6 Ibid s. 37. OSGOODE HALL LAW JOURNAL [VOL 24 No. 2 Specific duties are imposed on employers, supervisors, owners, suppliers, contractors, and workers.7 Two permanent mechanisms in the Act ensure compliance with its provisions. The first of these is the inspectorate. Health and safety inspectors employed by the Ministry of Labour are empowered to enter any workplace at any time without warrant or notice. They may conduct tests, bring in experts for those tests, and require the employer to provide expert assessments at its own expense. They may interview any person in the workplace,8 and they may order the immediate shutdown of any hazardous operation. 9 Although earlier legislation contained many of these far-reaching powers, they had been notoriously underutilized. The second major enforcement mechanism, the principal innovation in the 1970s reforms, is the employer-worker health and safety com- mittee. 10 The committee's function is to identify and obtain information on workplace hazards and to recommend programmes, measures, and procedures to improve health and safety in the workplace." It is mandatory in every industrial workplace with twenty or more workers, or where a designated substance under the Act is used, or where the Ministry has issued an order prohibiting or restricting the presence or use of a toxic substance in the workplace.' 2 The committee must have at least two members, and at least half of the members must be non-managerial personnel selected by the workers or their unions.' 3 Worker representatives on the committee have the right to inspect the workplace "not more often than once a month."' 4 The committee is to keep minutes of its proceedings and make them available for examination and review by a Ministry inspector.' 5 Part VI of the Act prohibits an employer from disciplining or threatening a worker because that worker has complied with or sought to enforce the Act or the regulations. An aggrieved worker may take his or her other complaint under this section to binding arbitration if 7 Ibid ss 13-19. 8 Ibid s. 28. 9 Ibid s. 29(4). 10 Saskatchewan pioneered among Canadian provinces in the creation of mandatory joint committees in its OccupationalHealth Act, S.S. 1972, c. 86. See J.C. Brown, The Inspectorate: Part 2 - Change and Development (1978) 78 Lab. Gaz. 554 at 557. 1 Ibid s. 8(6). 12 R.S.O. 1980, c. 321, s. 8(2). Contractors and certain other designated employers are exempted from this requirement unless the Minister otherwise orders (ss 8(1), 8(3)). 13 Ibid s. 8(5). 14 Ibid s. 8(8). 15 Ibid s. 8(7). 1987] The Occupational Health and Safety Act there is a collective agreement or file a complaint with the Ontario Labour Relations Board.16 The Act further provides that no person shall knowingly hinder or interfere with a committee, a committee member, or a health and safety representative in the exercise of his or her rights and duties under the Act.17 Contraventions of the Act, or the regulations, or of an order of the inspector or the Ministry are subject to a fine of up to $25,000, or imprisonment for up to twelve months, or both.18 Where an inspector has determined that a worker is endangered by machinery or a work process and a resulting order is ignored, the Director of the Occupational Health and Safety Division of the Ministry may seek an injunction. 19 The language of the Act would suggest that the primary enforcing authority is the inspectorate, with its sweeping coercive powers backed by penalties and injunctive relief. The joint committees, on the other hand, only consult and advise, playing a role subordinate to the inspec- torate. The provisions governing the joint committees appear in Part II, Administration, while the inspectorate is covered by Part VIII, Enforcement. That is not the Ministry's approach, however. In an accompanying guide to the Act the Ministry sets forth its interpretation: The Act is based upon the principle that hazards can best be dealt with in the workplace itself through communication and co-operation between employers and workers. Fundamental to the Act is the concept that employers and workers must share responsibility for occupational health and safety and that both must actively seek to identify hazards and develop responses to protect workers. This internal responsibility system assumes assessment of the system itself by employers and and represen- workers through the appointment of health and safety committees20 tatives and through regular inspections of the workplace. From this perspective, the inspectorate's role is distinctly secondary to that of the joint committee and the internal responsibility system (IRS). How successful is this approach with its underlying philosophy of shared responsibility in ensuring compliance with the Act? Has the joint com- mittee system facilitated resolution of industrial health and safety prob- lems? Do the Ministry inspectors strengthen on-the-job enforcement of the Act? 16 Ibid s. 24(2). 17 Ibid s. 33. 18 Ibid s. 37. 19 Ibid s. 3 1. 20 A Guide to the Occupational Health and Safety Ac4 1978. (Toronto: Ontario Ministry of Labour, 1981) at 28. OSGOODE HALL LAW JOURNAL [VOL 24 No. 2 The organized labour movement, which initially greeted the joint committees as a vehicle of worker input, has heavily criticized the IRS. In 1984, Dupr6 stated: Labour feels that the concept is deceptive in that it has an appearance of protecting workers, while in practice it provides both management and the government with an excuse for doing as little as possible. Specifically, labour is critical that the committees may appear to give workers an involvement in health and safety while denying them the power actually to accomplish anything. Labour is also concerned that the Ministry uses the ms to avoid the necessity of action. Labour claims that Ministry officials respond to problems in the workplace by telling the two sides - management and labour - to work difficulties out together.
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