A A A

Third Session, Thirty-Seventh Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.
It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications.

Bill 27

THE SAFER WORKPLACES ACT (WORKPLACE SAFETY AND HEALTH ACT AMENDED)


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. W210 amended

1           The Workplace Safety and Health Act is amended by this Act.

2           The centred heading "DEFINITIONS" is added before section 1.

3           Section 1 is amended

(a) in the part before the definitions, by adding "unless otherwise specified," after "In this Act,";

(b) by adding the following definitions in alphabetical order:

"Board" means The Manitoba Labour Board established under The Labour Relations Act; (« Commission »)

"construction project" means

(a) the construction, demolition, repair, alteration or removal of a structure, building, complex, street, road, highway, pipeline, sewage system or electrical telecommunication or transmission line,

(b) the digging of, working in or filling a trench or excavation,

(c) the installation, modification, repair or removal of any equipment or machinery, or

(d) any work prescribed by regulation as a construction project; (« projet de construction »)

"construction project site" means a workplace where work is performed on a construction project; (« chantier de construction »)

"contractor" means a person who, pursuant to one or more contracts, directs the activities of one or more employers or self-employed persons involved in work at a workplace; (« entrepreneur »)

"owner", in relation to any land or premises used or to be used as a workplace, includes

(a) a trustee, receiver, mortgagee in possession, tenant, lessee or occupier of the land or premises, and

(b) a person who acts as an agent or delegate of a person mentioned in clause (a),

but does not include a person who occupies premises used as a private residence, unless that person carries on a business, profession or trade at that residence; (« propriétaire »)

"person" includes a partnership or an unincorporated association; (« personne »)

"prime contractor" means the prime contractor for a construction project referred to in section 7; (« entrepreneur principal »)

"representative" means a worker safety and health representative designated or appointed under section 41; (« délégué »)

"supervisor" means a person who has charge of a workplace or authority over a worker; (« surveillant »)

"supplier" means a person who supplies, sells, leases, installs or provides

(a) any tool, equipment, machine or device, or

(b) any biological substance or chemical substance,

to be used in a workplace; (« fournisseur »)

(c) by replacing the definition "committee" with the following:

"committee" means a workplace safety and health committee established under section 40; (« comité »)

(d) by repealing the definitions "principal contractor" and "project".

4           The centred heading "PURPOSE OF THIS ACT" is added before section 2.

5           The centred heading "APPLICATION OF THIS ACT" is added before section 3.

6           The centred heading "DUTIES OF EMPLOYERS" is added before section 4.

7(1)        Subsection 4(2) is amended by adding the following after clause (g):

(h) ensure that all of the employer's workers are supervised by a person who

(i) is competent, because of knowledge, training or experience, to ensure that work is performed in a safe manner, and

(ii) is familiar with this Act and the regulations that apply to the work performed at the workplace;

(i) if the employer's workers are working on a construction project that has a prime contractor, advise the prime contractor of the name of the supervisor of the employer's workers on the project.

7(2)        The following is added after subsection 4(2):

Employer as supervisor

4(3)        For the purposes of clause (2)(h), an employer may supervise his or her workers if he or she satisfies the criteria set out in that clause.

Employer's duty re training

4(4)        Without limiting the generality of clause (2)(b), every employer shall provide information, instruction and training to a worker to ensure, so far as is reasonably practicable, the safety, and health of the worker, before the worker

(a) begins performing a work activity at a workplace;

(b) performs a different work activity than the worker was originally trained to perform; or

(c) is moved to another area of the workplace or a different workplace that has different facilities, procedures or hazards.

Performing work activity during training

4(5)        Notwithstanding subsection (4), a worker may perform a work activity while being trained if the worker is under the direction of a supervisor or another person who is fully trained and has sufficient experience in performing that work activity to ensure that the safety or health of the worker and any other person is not at risk.

Wages and benefits during training

4(6)        A worker is entitled to the same wages and benefits for any time spent in training that he or she would be entitled to had the worker been performing his or her regular work duties during that time.

DUTIES OF SUPERVISORS

Duties of supervisors

4.1         Every supervisor shall

(a) so far as is reasonably practicable,

(i) take all precautions necessary to protect the safety and health of a worker under his or her supervision,

(ii) ensure that a worker under his or her supervision works in the manner and in accordance with the procedures and measures required by this Act and the regulations, and

(iii) ensure that a worker under his or her supervision uses all devices and wears all clothing and personal protective equipment designated or provided by the employer or required to be used or worn by this Act or the regulations;

(b) advise a worker under his or her supervision of all known or reasonably foreseeable risks to safety and health in the area where the worker is performing work;

(c) co-operate with any other person exercising a duty imposed by this Act or the regulations; and

(d) comply with this Act and the regulations.

8           The centred heading "DUTIES OF WORKERS" is added before section 5.

9           The centred heading "DUTIES OF SELF-EMPLOYED PERSONS" is added before section 6.

10          Section 6 is amended by adding the following after clause (a):

(a.1) when he or she is working on a construction project that has a prime contractor, advise the prime contractor that he or she is working on the project;

11          Section 7 is replaced with the following:

DUTIES OF PRIME CONTRACTORS

Requirement for prime contractor

7(1)        There shall be a prime contractor for a construction project if more than one employer or self-employed person is involved in work at the construction project site at the same time.

Prime contractor for construction project

7(2)        The prime contractor for a construction project is

(a) the person who enters into a contract to serve as the prime contractor with the owner of the construction project site; or

(b) if there is no contract referred to in clause (a), or if that contract is not in effect, the owner of the construction project site.

Duties of prime contractor

7(3)        The prime contractor for a construction project shall

(a) ensure, so far as is reasonably practicable, that every person involved in work on the project complies with this Act and the regulations;

(b) co-ordinate, organize and oversee the performance of all work at the construction project site and conduct his or her own activities in such a way as to ensure, so far as is reasonably practicable, that no person is exposed to risks to his or her safety or health arising out of, or in connection with activities at the construction project site;

(c) co-operate with any other person exercising a duty imposed by this Act or the regulations; and

(d) comply with this Act and the regulations.

12          The following is added after section 7:

DUTIES OF CONTRACTORS

Duties of contractors

7.1         Every contractor shall

(a) ensure, so far as is reasonably practicable,

(i) that every workplace where an employer, employer's worker or self-employed person works pursuant to a contract with the contractor, and

(ii) that every work process or procedure performed at a workplace by an employer, employer's worker or self employed person pursuant to a contract with the contractor,

that is not in the direct and complete control of that employer or self-employed person does not create a risk to the safety or health of any person;

(b) if the contractor is involved in work on a construction project that has a prime contractor, advise the prime contractor of the name of every employer or self-employed person with whom the contractor has contracted to perform work on the project;

(c) co-operate with any other person exercising a duty imposed by this Act or the regulations; and

(d) comply with this Act and the regulations.

DUTIES OF OWNERS

Duties of owners

7.2         Every owner of a workplace shall

(a) ensure, so far as is reasonably practicable, that the land or premises used as a workplace that is under his or her control is provided and maintained in a manner that does not create a risk to the safety or health of any person;

(b) co-operate with any other person exercising a duty imposed by this Act or the regulations; and

(c) comply with this Act and the regulations.

DUTIES OF SUPPLIERS

Duties of suppliers

7.3         Every supplier shall

(a) ensure, so far as is reasonably practicable, that any tool, equipment, machine, device or chemical or biological substance provided by the supplier for use at a workplace

(i) is safe when used in accordance with the instructions provided by the supplier, and

(ii) conforms with the requirements of this Act and the regulations;

(b) when prescribed by regulation, provide written instructions and information prescribed by regulation to every employer, self-employed person, contractor or prime contractor to whom the supplier supplies any tool, equipment, machine, device or chemical or biological substance; and

(c) comply with this Act and the regulations.

WORKPLACE SAFETY AND HEALTH PROGRAM

Establishment of workplace safety and health program

7.4(1)      An employer shall establish a written workplace safety and health program for each workplace where 20 or more workers of that employer are regularly employed.

Determining number of workers

7.4(2)      For the purposes of subsection (1), the number of workers employed at a workplace shall be determined by averaging, over the previous 12 months, the number of full-time and part-time workers present each working day.

Program for multiple workplaces

7.4(3)      Notwithstanding subsection (1), the director may issue a written order permitting an employer to establish a workplace safety and health program for more than one workplace or parts of more than one workplace.

Considerations of director

7.4(4)      In determining whether to make an order under subsection (3), the director shall take into account

(a) the nature of the work performed at the workplace;

(b) any request for an order by an employer, worker or union representing workers at the workplace; and

(c) the frequency of injury or illness in the workplace or in the industry in question.

Content of program

7.4(5)      A workplace safety and health program must include

(a) a statement of the employer's policy with respect to the protection of the safety and health of workers at the workplace;

(b) the identification of existing and potential dangers to workers at the workplace and the measures that will be taken to reduce, eliminate or control those dangers, including procedures to be followed in an emergency;

(c) the identification of internal and external resources, including personnel and equipment, that may be required to respond to an emergency at the workplace;

(d) a statement of the responsibilities of the employer, supervisors and workers at the workplace;

(e) a schedule for the regular inspection of the workplace and of work processes and procedures at the workplace;

(f) a plan for the control of any biological or chemical substance used, produced, stored or disposed of at the workplace;

(g) a statement of the procedures to be followed to protect safety and health in the workplace when another employer or self-employed person is involved in work at the workplace that includes

(i) criteria for evaluating and selecting employers and self-employed persons to be involved in work at the workplace, and

(ii) procedures for regularly monitoring employers and self-employed persons involved in work at the workplace;

(h) a plan for training workers and supervisors in safe work practices and procedures;

(i) a procedure for investigating accidents, dangerous occurrences and refusals to work under section 43;

(j) a procedure for worker participation in workplace safety and health activities, including inspections and the investigation of accidents, dangerous occurrences and refusals to work under section 43;

(k) a procedure for reviewing and revising the workplace safety and health program at intervals not less than every three years or sooner if circumstances at a workplace change in a way that poses a risk to the safety or health of workers at the workplace; and

(l) any other requirement prescribed by regulation.

Requirement for consultation

7.4(6)      The employer shall design the workplace safety and health program in consultation with

(a) the committee for the workplace; or

(b) if there is no committee, the representative for the workplace.

Program available on request

7.4(7)      The employer shall make a workplace safety and health program available to the following persons on request:

(a) the committee;

(b) if there is no committee, the representative;

(c) a worker at the workplace;

(d) a safety and health officer.

Co-ordination of programs by prime contractor

7.4(8)      If workers from two or more employers that have workplace safety and health programs are working at a construction project site that has a prime contractor, the prime contractor shall co-ordinate the programs of those employers.

DUTY TO PROVIDE REQUIRED INFORMATION

Definition:  "required information"

7.5(1)      In this section, "required information" means any information

(a) that may affect the safety and health of a person at a workplace;

(b) that is necessary to identify and control any existing or potential hazards with respect to a workplace or any process, procedure or biological or chemical substance used at a workplace; or

(c) prescribed by regulation as required information.

Required information by prime contractor

7.5(2)      Every prime contractor for a construction project shall provide, so far as is reasonably practicable, all required information that he or she knows or may reasonably be expected to know to

(a) the owner of the construction project site; and

(b) every contractor, employer and self-employed person who is involved in work on the project.

Required information by contractor

7.5(3)      Every contractor shall provide, so far as is reasonably practicable, all required information that he or she knows or may reasonably be expected to know to

(a) every owner of a workplace with whom the contractor has a contract;

(b) every employer and self-employed person at a workplace with whom the contractor has a contract; and

(c) the prime contractor for a construction project, if the contractor is involved in work on a construction project for which there is a prime contractor.

Required information by owner

7.5(4)      Every owner of a workplace shall provide, so far as is reasonably practicable, all required information that he or she knows or may reasonably be expected to know to

(a) every employer who employs workers at the workplace; and

(b) every self-employed person who works at the workplace.

Required information by owner of construction project

7.5(5)      Despite subsection (4), if a workplace is a construction project site where work is performed on a construction project that is required to have a prime contractor, an owner of that workplace shall provide, so far as is reasonably practicable, all required information that he or she knows or may reasonably be expected to know only to the prime contractor.

PERSONS WITH MULTIPLE FUNCTIONS

Definition:  "function"

7.6(1)      In this section, "function" means the function of employer, supervisor, worker, self-employed person, prime contractor, contractor, owner or supplier under this Act and the regulations.

Multiple functions

7.6(2)      If a person has two or more functions under this Act in respect of one workplace, that person shall satisfy the duties imposed by this Act and the regulations for each function.

Responsibility if duties apply to more than one person

7.7         If

(a) one or more provisions in this Act or the regulations imposes the same duty on more than one person; and

(b) one of the persons subject to that duty complies with the applicable provision;

the other persons subject to that duty are relieved of their duty only during the time when

(c) simultaneous compliance of that duty by more than one person would result in unnecessary duplication of effort and expense; and

(d) the safety and health of any person at the workplace is not put at risk by compliance with that duty by only one person.

13          The centred heading "RELATIONSHIP OF THIS ACT TO THE WORKERS COMPENSATION ACT" is added before section 8.

14          Section 10 is renumbered as subsection 14(4).

15          Subsection 11(2) is renumbered as subsection 14(5).

16          The centred heading "DUTIES AND POWERS OF THE DIRECTOR" is added before section 12.

17          The centred heading "DUTIES AND POWERS OF THE MINISTER" is added before section 14.

18          The centred heading "ADVISORY COUNCIL" is added before section 15.

19          The following is added after subsection 16(2):

Review every five years

16(3)       At least once every five years, the council shall review this Act and its administration and report its findings and recommendations, if any, to the minister.

Review at request of minister

16(4)       The council shall review any matter relating to the Act and its administration when requested to do so by the minister and report its findings and recommendations, if any, to the minister.

20          The centred heading "CHIEF OCCUPATIONAL MEDICAL OFFICER" is added before section 17.

21          The centred heading "REGULATIONS, CODES AND STANDARDS" is added before section 18.

22          Subsection 18(1) is replaced with the following:

Regulations

18(1)       The Lieutenant Governor in Council may make regulations

(a) respecting standards and practices to be established and maintained by employers, supervisors, self-employed persons, prime contractors, contractors, owners and suppliers to protect the safety and health of any person at a workplace;

(b) respecting procedures, measures and precautions that are required, or prohibited, when performing any work activity;

(c) imposing requirements respecting conditions at workplaces, including such matters as the structural condition and stability of premises, available exits from premises, cleanliness, temperature, lighting, ventilation, overcrowding, noise, vibrations, ionizing and other radiations, dust and fumes;

(d) prescribing minimum standards of welfare facilities at workplaces, including the supply of water, sanitary conveniences and facilities for washing, bathing, changing, storing personal property, breaks and refreshment;

(e) regulating or prohibiting the manufacture, supply, or use of any plant, tool, equipment, machine or device;

(f) respecting the design, construction, guarding, siting, installation, commissioning, examination, repair, maintenance, alteration, adjustment,

dismantling, testing, inspection, use, or approval prior to installation or use, of any plant, tool, equipment, machine or device;

(g) prescribing requirements with respect to the marking of any plant, tool, equipment, machine or device used or manufactured in any workplace, and regulating or restricting the use of specified markings;

(h) regulating or prohibiting the manufacture, supply, keeping, handling or use of any substance or material that may adversely affect the safety or health of any person at a workplace;

(i) respecting the testing, labelling and examination of any substance or material that may affect the safety or health of any person at a workplace;

(j) respecting the prevention, study and treatment of industrial diseases, including arrangements for medical examinations and health surveillance of persons involved in work at a workplace;

(k) respecting the monitoring of atmospheric and other conditions in workplaces;

(l) respecting the instruction, training and supervision of workers;

(m) respecting the provision by employers, and the use by workers, of protective clothing or devices, including clothing affording protection against the weather;

(n) prohibiting the performance of specified functions by any person who does not possess specified qualifications or experience;

(o) respecting licences, certificates or designations required by persons performing specified functions at a workplace, and the fees and conditions required to obtain a licence, certificate or designation;

(p) requiring a person to obtain a permit to carry on a specified activity affecting the safety or health of any person at a workplace, including the terms and conditions and the fee for the permit;

(q) respecting the suspension or cancellation of any licence, certificate or permit issued under this Act;

(r) respecting the preparation, maintenance and submission of records and reports dealing with accidents, industrial diseases and workplace safety and health standards;

(s) restricting, prohibiting or requiring any activity if an accident or any other specified dangerous occurrence has occurred, or may occur;

(t) respecting committees, including but not limited to

(i) the operation of committees,

(ii) the frequency of meetings of committees, including more frequent meetings for specified classes of workplaces,

(iii) the participation of committees members in inspections, investigations and other related matters, and

(iv) the submission of committee records to the director;

(u) respecting representatives, including but not limited to

(i) the participation of representatives in inspections, investigations and other related matters, and

(ii) the submission of representatives' records to the director;

(v) respecting workplace safety and health programs;

(w) prescribing the persons to whom, circumstances in which, and methods by which specified information concerning safety and health shall be communicated;

(x) prescribing the fees payable for examinations required under this Act;

(y) respecting arrangements for ambulance service and first-aid treatment at workplaces;

(z) respecting the employment or the provision of alternate employment to

(i) a pregnant or nursing worker, and

(ii) a worker whose safety or health is put at risk by exposure to a chemical or biological substance;

(aa) respecting the establishment of policies and procedures in workplaces or classes of workplaces to prevent and respond to potentially violent situations;

(bb) respecting measures that employers shall take to prevent harassment in the workplace;

(cc) for the purpose of section 53.1,

(i) specifying the form and content of notices of administrative penalties,

(ii) respecting the determination of amounts of administrative penalties, which may vary according to the number of workers affected by a contravention of subsection 26(1) (improvement orders) or the nature or frequency of the contraventions, and

(iii) respecting any other matter necessary for the administration of a system of administrative penalties provided for under this Act;

(dd) defining the meaning of any word or phrase used but not defined in this Act;

(ee) respecting any matter required or authorized by this Act to be prescribed or dealt with by regulation;

(ff) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

23          Section 21 is replaced with the following:

Exemption from regulation

21(1)       After consulting with any parties he or she considers appropriate, the director may issue a written order exempting a person or class of persons from any provision of a regulation to meet the special circumstances in a particular case.

Considerations on exemptions

21(2)       The director may make an order under subsection (1) only if he or she is satisfied that no worker's health or safety is materially affected by the exemption.

24          The centred heading "SAFETY AND HEALTH OFFICERS" is added before section 22.

25          Subsection 24(1) is amended by adding the following after clause (f):

(f.1) require the employer or a person designated by the employer to demonstrate the use of any machinery, equipment, appliance or thing at a workplace;

26          The centred heading "IMPROVEMENT ORDERS" is added before section 26.

27          Sections 27 to 31 are repealed.

28          Section 32 is renumbered as section 36.3.

29          Section 35 is amended

(a) in clause (a), by striking out "on the third day prior to" and substituting "within seven days after"; and

(b) in clause (d), by adding "at or near the workplace" after "prominent place".

30          The centred heading "STOP WORK ORDERS" is added before section 36.

31(1)       Subsection 36(3) is repealed.

31(2)       The following is added after subsection 36(3):

Duration of stop work order

36(4)       A stop work order remains in effect until it is

(a) withdrawn or discontinued by the safety and health officer who issued it; or

(b) set aside or varied by the director or the Board under subsection 37(4) or 39(5).

Duration of varied order

36(5)       When the director or the Board varies a stop work order, the varied order remains in effect until a safety and health officer withdraws or discontinues it.

Workers must be paid

36(6)       While a stop work order is in effect,

(a) any worker who is directly affected by the order is entitled to the same wages and benefits that he or she would have received had the worker continued to work; and

(b) the employer may re-assign the worker to alternate work.

COMMUNICATING IMPROVEMENT ORDERS AND STOP WORK ORDERS

Communication of orders

36.1(1)     Subject to subsection (2), an improvement order or stop work order may be communicated to the person against whom the order is made

(a) by delivering a copy of the order to the person or an agent of the person;

(b) by sending a copy of the order by registered mail to the last known address of the person; or

(c) if, despite reasonable efforts, the order cannot be communicated by delivery or mail under clause (a) or (b), by posting a copy of the order in a conspicuous place at or near the workplace with respect to which the order was made.

Communication to worker and self-employed person

36.1(2)     An improvement order or a stop work order against a worker or self-employed person may be communicated

(a) by delivering a copy of the order to the worker or the self-employed person; or

(b) if, despite reasonable efforts, the order cannot be delivered to the worker or self-employed person, by sending a copy of the order by registered mail to the last known address of the worker or self-employed person.

Communication of improvement order

36.1(3)     If an improvement order is posted at a workplace under subsection (1), it is deemed to have been communicated to the person against whom the order was made 24 hours after the order was posted.

Communication of stop work order

36.1(4)     A stop work order is deemed to have been communicated at the time it is delivered, received or posted in accordance with this section and takes effect immediately upon delivery, receipt or posting.

Directions for communication

36.1(5)     Despite subsections (1) and (2), the director may direct that an order be communicated to a person in a manner not described in this section and may direct when the order is deemed to have been communicated.

Communication of orders to prime contractor

36.2        If a safety and health officer makes an order against any person involved in work on a construction project that has a prime contractor, the officer shall provide a copy of the order to the prime contractor.

32          Sections 37 to 40 are replaced with the following:

APPEALS

Appeal can be made to director

37(1)       A person directly affected by an order or decision of a safety and health officer made under

(a) section 26 (improvement order);

(b) section 36 (stop work order);

(c) section 42.1 (discriminatory action); or

(d) section 43 (right to refuse dangerous work);

may appeal the order or decision to the director.

How to appeal

37(2)       The person appealing shall send a written appeal notice to the director within 14 days after the date of the order or decision, or within any further period that the director may allow.  The notice must state the reasons for the appeal.

Hearing not required

37(3)       The director is not required to hold a hearing before deciding an appeal.

Decision

37(4)       On an appeal, the director may

(a) make an order confirming, varying or setting aside the order or decision; or

(b) make any other order the director considers reasonable.

Reasons

37(5)       The director must make a decision about the appeal, and give written reasons, within a reasonable time after receiving the appeal notice, unless the appeal has been referred to the Board under section 38.

Original decision remains in effect pending appeal

37(6)       Unless the director orders otherwise, an appeal under this section does not suspend the operation of the order or decision under appeal.

Referring an appeal to Board

38(1)       Instead of deciding an appeal under section 37, the director may refer it to the Board.  In that case, subsections 39(2) to (8) apply to the appeal, with necessary changes.

Director to give information to Board

38(2)       On referring an appeal to the Board, the director shall

(a) inform the person appealing that the appeal has been referred to the Board;

(b) give the Board

(i) the appeal notice under section 37,

(ii) any written information the director has that is relevant to the appeal, and

(iii) a list of persons who the director thinks are directly affected by the order or decision under appeal; and

(c) give each person on that list a copy of the appeal notice and any written information the director has that is relevant to the appeal.

Appeal to Board

39(1)       Any person directly affected by an order or decision of the director under section 37 may appeal it to the Board.

How to appeal

39(2)       The person appealing must send a written appeal notice to the Board within 14 days after the date of the order or decision, or within any further period that the Board may allow.  The notice must be in the form and contain the information the Board requires.

Notice of hearing date

39(3)       On receiving a notice of appeal, the Board shall

(a) fix a date, time and place for hearing the appeal; and

(b) give written notice of the hearing to the person appealing, the director and any other person directly affected, at least five days before the hearing date.

Director is party

39(4)       The Director is a party to an appeal under this section.

Right to be heard

39(5)        At the hearing, the Board shall give any interested person an opportunity to be heard, to present evidence and to make presentations.

Decision

39(6)       After hearing an appeal, the Board may make an order confirming, varying or setting aside the order or decision appealed from.  It may also make any other order it considers necessary that is mentioned in subsection 31(4) of The Labour Relations Act (remedies for unfair labour practice).

Order remains in effect pending appeal

39(7)       Unless otherwise ordered by the Board chairperson, an appeal to the Board under this section does not suspend the operation of the order or decision under appeal.

Order filed in Queen's Bench

39(8)       An order of the Board may be filed in the Court of Queen's Bench and enforced in the same manner and to the same extent as a judgment of that court.

Appeal to Court of Appeal

39(9)       A person who is a party to an order of the Board made under subsection (6) may appeal the order to The Court of Appeal, but only on a question of law or jurisdiction and by leave of a judge of the Court.

WORKPLACE SAFETY AND HEALTH COMMITTEES AND REPRESENTATIVES

Workplace safety and health committee

40(1)       Every employer shall establish a workplace safety and health committee

(a) for each workplace where at least 20 of the employer's workers are regularly employed; and

(b) for any other individual workplace or class of workplace designated by written order of the director.

Exception for construction project with prime contractor

40(2)       Subsection (1) does not apply to a construction project site that is required to have a prime contractor.

Committee for construction project site

40(3)       A prime contractor shall establish a committee at a construction project site if

(a)  at least 20 workers are involved, or expected to be involved, in work on a construction project; and

(b) the project is expected to require more than 90 days to complete.

Determining number of workers

40(4)       For the purposes of subsection (1), the number of workers employed at a workplace shall be determined by averaging, over the previous 12 months, the number of full-time and part-time workers present each working day.

More than one committee in a workplace

40(5)       The director may issue a written order requiring an employer or prime contractor to establish more than one committee for a workplace. The order may provide for the composition, practice and procedures of those committees.

Committee for multiple workplaces

40(6)       Notwithstanding subsections (1) and (3), the director may issue a written order permitting an employer or prime contractor to establish one committee for more than one workplace or parts of more than one workplace. The order may provide for the composition, practice and procedures of that committee.

Considerations of director

40(7)       In determining whether to make an order under subsection (5) or (6), the director shall take into account

(a) the nature of the work performed at the workplace;

(b) any request for an order by an employer, prime contractor, worker or union representing workers at the workplace; and

(c) the frequency of injury or illness in the workplace or in the industry in question.

Membership of committee

40(8)       A committee

(a) shall consist of not fewer than four or more than 12 persons, of whom at least 1/2 shall be persons

(i) representing workers who are not associated with the management of the workplace, and

(ii) appointed in accordance with the constitution of the union that is the certified bargaining agent or that has acquired bargaining rights on behalf of those workers, or where no such union exists, persons elected by the workers they represent; and

(b) shall have two co-chairpersons — one chosen by the employer members on the committee, and the other chosen by the worker members on the committee — who shall alternate in serving as chairperson at meetings of the committee and shall participate in all decisions of the committee.

Posting of names of members

40(9)       The employer or prime contractor shall ensure that the names of the committee members are posted conspicuously in the workplace.

Duties of committee

40(10)      The duties of a committee include

(a) the receipt, consideration and disposition of concerns and complaints respecting the safety and health of workers;

(b) participation in the identification of risks to the safety or health of workers or other persons, arising out of or in connection with activities in the workplace;

(c) the development and promotion of measures to protect the safety and health and welfare of persons in the workplace, and checking the effectiveness of such measures;

(d) co-operation with the occupational health service, if such a service has been established within the workplace;

(e) co-operation with a safety and health officer exercising duties under this Act or the regulations;

(f) the development and promotion of programs for education and information concerning safety and health in the workplace;

(g) the making of recommendations to the employer or prime contractor respecting the safety and health of workers;

(h) the inspection of the workplace at regular intervals;

(i) the participation in investigations of accidents and dangerous occurrences at the workplace;

(j) the maintenance of records in connection with the receipt and disposition of concerns and complaints and the attendance to other matters relating to the duties of the committee; and

(k) such other duties as may be specified in this Act or prescribed by regulation.

Members paid while carrying out committee duties

40(11)      A member of a committee is entitled to take time off from his or her regular work duties in order to carry out his or her duties under this Act and the regulations. The member shall be paid by his or her employer at the member's regular or premium pay, as applicable, for all time spent carrying out his or her duties under this Act and the regulations.

33(1)       Subsection 41(4) is repealed.

33(2)       The following is added after subsection 41(5):

Representatives paid while carrying out duties

41(6)       A representative is entitled to take time off from his or her regular work duties in order to carry out his or her duties under this Act and the regulations. The representative shall be paid by his or her employer at the representative's regular or premium pay, as applicable, for all time spent carrying out his or her duties under this Act and the regulations.

Definition:  "employer"

41.1(1)     In this section, "employer" means an employer or prime contractor who is required to establish a committee or to designate a representative.

Employer response to recommendations

41.1(2)      If an employer receives written recommendations from the committee or representative identifying anything that may pose a danger to safety or health of any person, the employer shall respond in writing to the committee or representative no later than 30 days after receiving the recommendations unless the employer implements all of the recommendations within 30 days of receiving the recommendations.

Contents of employer response

41.1(3)     The response of an employer must

(a) contain a timetable for implementing the recommendations that the employer accepts; and

(b) give reasons why the employer disagrees with any recommendations that the employer does not accept.

Referral to safety and health officer

41.1(4)     If no agreement can be reached regarding the response of an employer under subsection (3), any of the following may refer the matter to a safety and health officer:

(a) the employer;

(b) the committee;

(c) a member of the committee;

(d) if there is no committee, the representative.

Order from officer

41.1(5)     If a dispute regarding a recommendation is referred to a safety and health officer, the officer may issue an order or a decision in accordance with this Act.

No limitation

41.1(6)     Nothing in this section limits the right of a worker to refer any matter respecting safety and health directly to a safety and health officer.

Information to committee or representative

41.2        If requested by the committee or a representative, the employer or prime contractor shall disclose the following to the committee or representative:

(a) information concerning the testing of any equipment, device or chemical or biological substance used at a workplace;

(b) an inspection or investigation report respecting safety and health at the workplace;

(c) a report respecting workplace safety and health monitoring or audits.

Accompanying an officer

41.3(1)     A safety and health officer who conducts an inspection or investigation at a workplace, may request that he or she be accompanied by

(a) the worker co-chairperson of the committee or his or her designate;

(b) if there is no committee at the workplace, the representative;

(c) if there is no committee or representative at the workplace, a worker selected by the union; or

(d) if there is no committee, representative or union representing workers at the workplace, a worker not associated with the management of the workplace.

Employer co-operation

41.3(2)     If a safety and health officer makes a request under subsection (1), the employer shall permit the person requested to accompany the officer on the inspection or investigation and shall pay the person in accordance with subsection 40(11).

34          Sections 42 and 43 are replaced with the following:

DISCRIMINATORY ACTION

Discriminatory action against worker prohibited

42(1)       No employer, union or person acting on behalf of an employer or union shall take or threaten discriminatory action against a worker for

(a) exercising a right under or carrying out a duty in accordance with this Act or the regulations;

(b) testifying in a proceeding under this Act;

(c) giving information about workplace conditions affecting the safety, health or welfare of any worker to

(i) an employer or a person acting on behalf of an employer,

(ii) a safety and health officer or another person concerned with the administration of this Act,

(iii) another worker or a union representing a worker, or

(iv) a committee or a representative;

(d) performing duties or exercising rights as a member of a committee or as a representative;

(e) refusing to do dangerous work under section 43;

(f) taking reasonable action at the workplace to protect the safety or health of another person;

(g) complying with this Act or the regulations or a code of practice under this Act, or an order or decision made under this Act; or

(h) attempting to have this Act or the regulations enforced.

Failure to pay wages or benefits

42(2)       An employer who fails to pay wages or benefits to a worker when required to do so by this Act is deemed to have taken discriminatory action against the worker under this section.

Referring a complaint to an officer

42.1(1)     A worker who believes on reasonable grounds that the employer or union has taken discriminatory action against him or her for a reason described in section 42 may refer the matter to a safety and health officer.

Order

42.1(2)     If a safety and health officer decides that an employer or union has taken discriminatory action against a worker for a reason described in section 42, the officer shall make an order requiring the employer or union to do one or more of the following:

(a) stop the discriminatory action;

(b) reinstate the worker to his or her former employment on the same terms and conditions on which the worker was formerly employed;

(c) pay the worker any wages the worker would have earned had he or she not been wrongfully discriminated against and compensate the worker for loss of any benefits;

(d) remove any reprimand or other reference to the matter from any employment records the employer maintains about the worker.

Officer to advise if no discriminatory action

42.1(3)     If a safety and health officer decides that no discriminatory action was taken against a worker for a reason described in section 42, the officer shall inform the worker in writing of the reasons for that decision.

Onus on employer or union

42.1(4)     If, in a prosecution or other proceeding under this Act, a worker establishes

(a) that discriminatory action was taken against him or her; and

(b) that the worker conducted himself or herself in a manner described in section 42;

it shall be presumed that the discriminatory action was taken because of the worker's conduct.  The onus is then on the employer or union to prove that the decision to take the discriminatory action was not influenced by the conduct.

Court order to reinstate, etc.

42.1(5)     If an employer or union is convicted of taking discriminatory action against a worker contrary to this Act, the convicting justice shall order the employer or union to do one or more of the following:

(a) stop the discriminatory action;

(b) reinstate the worker to his or her former employment on the same terms and conditions on which the worker was formerly employed;

(c) pay the worker any wages the worker would have earned had he or she not been wrongfully discriminated against and compensate the worker for loss of any benefits;

(d) remove any reprimand or other reference to the matter from any employment records the employer maintains about the worker.

RIGHT TO REFUSE DANGEROUS WORK

Right to refuse dangerous work

43(1)       Subject to this section, a worker may refuse to work or do particular work at a workplace if he or she believes on reasonable grounds that the work constitutes a danger to his or her safety or health or to the safety or health of another worker or another person.

Reporting the refusal

43(2)       A worker who refuses to work or do particular work under subsection (1) shall promptly report the refusal and the reasons for it to his or her employer or immediate supervisor, or to any other person in charge at the workplace.

Inspecting the workplace

43(3)       If the employer does not remedy the dangerous condition immediately, the person who receives the report of refusal to work, or a person designated by that person, shall immediately inspect the workplace in the presence of the worker and one of the following persons:

(a) if there is a committee under section 40, the worker co-chairperson of the committee or, if that person is unavailable, a committee member who represents workers;

(b) if there is a representative designated under section 41, that representative or, if he or she is unavailable, another worker selected by the worker refusing to do the work;

(c) if there is no committee or representative, another worker selected by the worker who is refusing to work.

Remedial action

43(4)       The person required to inspect the workplace shall take any action necessary to remedy any dangerous condition, or ensure that such action is taken.

Worker may continue to refuse

43(5)       Until the dangerous condition is remedied, the worker who reported it may continue to refuse to work or do particular work.

Other workers not to be assigned

43(6)       When a worker has refused to work or do particular work under subsection (1), the employer shall not request or assign another worker to do the work unless the other worker has been advised by the first worker, or by a safety and health officer, of the first worker's refusal and the reasons for it.

Report of dangerous condition to an officer

43.1(1)     If the dangerous condition is not remedied after an inspection under subsection 43(3), any of the persons present during the inspection may notify a safety and health officer of the refusal to work and the reasons for it.

Investigation by officer

43.1(2)     On receiving a notice under subsection (1), the officer shall investigate the matter and decide whether the work the worker has refused to do constitutes a danger to the safety or health of the worker or any other worker or person at the workplace.

Order by officer

43.1(3)     If the officer decides that the work is dangerous, he or she shall

(a) make a written report stating the officer's findings;

(b) make any improvement order under section 26 or stop work order under section 36 that the officer considers necessary or advisable; and

(c) give a copy of the report and any order to

(i) the worker who refused to do the work,

(ii) the employer, and

(iii) the co-chairpersons of the committee, or the representative.

Decision not to issue an order

43.1(4)     If the officer decides that the work is not dangerous, he or she shall

(a) inform the employer and the worker of that decision; and

(b) inform the worker that he or she is no longer entitled to refuse to do the work.

Worker entitled to be paid despite refusal

43.2        If a worker has refused to work or do particular work under section 43,

(a) the worker is entitled to the same wages and benefits that he or she would have received had the worker continued to work; and

(b) the employer may re-assign the worker temporarily to alternate work.

Employer not to make worker work in unsafe conditions

43.3(1)     When the employer at a workplace or his or her agent, or the supervisor or another person representing the employer at the workplace in a supervisory capacity, knows or ought to know of a condition at the workplace that is or is likely to be dangerous to the safety or health of a worker, he or she shall not require or permit any worker to do that work until the dangerous condition is remedied.

Employer may remedy dangerous condition

43.3(2)     Subject to subsection 43(5), nothing in subsection (1) prevents the doing of any work or thing at a workplace that may be necessary to remedy a condition that is or is likely to be dangerous to the safety or health of a worker.

35          The centred heading "EDUCATIONAL LEAVE" is added before section 44.

36          Subsection 44(1) is amended by striking out "for a period of two normal working days to a maximum of 16 hours each year without loss of pay or other benefits" and substituting "each year for the number of hours the worker normally works during two normal working days, without loss of pay or other benefits,".

37          Section 45 is repealed.

38          Section 46 is replaced with the following:

GENERAL PROVISIONS

Obtaining information

46          To obtain information that the director needs to perform duties or exercise powers under this Act or the regulations, the director may require a person to provide any information in the manner and within the time period that the director may specify.

Order to conduct tests

46.1(1)     The director may, by order, require an employer to do the following at the employer's expense:

(a) have tests conducted by a technically qualified person specified by the director;

(b) give the director a report or assessment prepared by that person;

and to do so in the manner and within the time period specified in the order.

Service of order

46.1(2)     The order must be served on the employer personally or be sent by registered mail to the employer's last known address.

39          Section 47 is repealed.

40          The following is added after section 49:

Officials cannot be compelled to testify

49.1        A safety and health officer, a person assisting a safety and health officer, the chief occupational medical officer, the director, or any other person acting under the authority of this Act or the regulations, is not a compellable witness in a civil action or proceeding — other than an inquest or inquiry under The Fatality Inquiries Act — respecting any document, information, or test obtained, received or made under this Act or the regulations, and may not be compelled to produce any such document.

41(1)       Subsection 50(1) is replaced with the following:

Medical examinations and health surveillance

50(1)       The chief occupational medical officer may carry out, or may arrange for another physician or other qualified person to carry out, any medical examinations or health surveillance of workers or former workers as he or she considers desirable for the purpose of administering this Act and the regulations. But no medical examination of a worker may be carried out without the worker's consent.

41(2)       The following is added after subsection 50(2):

Health surveillance

50(3)       Health surveillance during working hours must be conducted without loss of pay to the workers who participate.  In addition, the employer shall facilitate and provide suitable accommodation at the workplace for health surveillance, if required to do so by the chief occupational medical officer or a physician or other qualified person.

42          The following is added after section 53:

ADMINISTRATIVE PENALTIES

Administrative penalty:  failure to comply with improvement order

53.1(1)     When a safety and health officer is of the opinion that a person has failed to comply with an improvement order issued under subsection 26(1), the officer shall provide evidence of the non-compliance to the deputy minister of the department.

Imposing a penalty

53.1(2)      When the deputy minister determines that a person has failed to comply with an improvement order issued under subsection 26(1), he or she may issue a notice in writing requiring the person to pay an administrative penalty in the amount set out in the notice.

When penalty may be imposed

53.1(3)     Notice of an administrative penalty may be issued only after the period for appealing an improvement order has expired or, if an appeal has been filed, after a decision has been made on appeal.

Maximum amount

53.1(4)     An administrative penalty may not exceed $5,000.

Notice

53.1(5)     A notice of administrative penalty must set out

(a) the amount of the penalty determined in accordance with the regulations;

(b) when and how the penalty must be paid; and

(c) a statement that the person may appeal the matter to the board within 14 days after being served with the notice.

Serving the notice

53.1(6)     A notice of administrative penalty must be served on the person required to pay the penalty.  The notice may be served personally or may be sent by registered mail to the person's last known address.

Appeal to the board

53.1(7)     Within 14 days after being served with a notice, the person required to pay the administrative penalty may appeal the matter to the board by sending the board a notice of the appeal.  The requirement to pay the penalty is stayed until the board decides the matter.

Notice of hearing

53.1(8)     On receiving a notice of appeal, the board shall

(a) fix a date, time and place for hearing the appeal; and

(b) give the person appealing, and the director, written notice of the hearing at least five days before the hearing date.

Decision of the board

53.1(9)     After hearing the appeal, the board shall determine whether or not the person has failed to comply with an improvement order issued under subsection 26(1) and

(a) confirm or revoke the administrative penalty; or

(b) vary the amount of the penalty if the board considers that it was not established in accordance with the regulations.

Payment

53.1(10)    Subject to an appeal under subsection (7), a person named in a notice of administrative penalty shall pay the amount of the penalty within 30 days after the notice is served. The government must use the amounts paid for the purpose of educating the public on matters relating to workplace safety and health.

Debt due to the government

53.1(11)    If an administrative penalty is not paid within 30 days after notice of the penalty is served, or, if the penalty is appealed to the board, within 30 days after the board's decision, the amount of the penalty is a debt due to the government.

Certificate registered in court

53.1(12)    The director may certify a debt referred to in subsection (11), or any part of such a debt that has not been paid.  The certificate may be registered in the Court of Queen's Bench and, once registered, may be enforced as if it were a judgment of the Court.

No offence to be charged if penalty is paid

53.1(13)    A person who pays an administrative penalty under this section for failure to comply with an improvement order may not be charged with an offence respecting that failure, unless the failure continues after the penalty is paid.

43          The centred heading "OFFENCES AND PENALTIES" is added before section 54.

44          Section 54 is replaced with the following:

Offences

54          Every person who

(a) contravenes this Act or the regulations;

(b) fails to comply with an order made under this Act or the regulations;

(c) knowingly obstructs or makes a false statement to a safety and health officer engaged in the exercise or performance of his or her powers or duties; or

(d) knowingly makes or causes to be made a false entry in any register, book, notice or other document to be kept by him under the Act or the regulations, or deletes or destroys or causes to be deleted or destroyed any true or proper entry in any such document;

is guilty of an offence and is liable on summary conviction to the penalties set out in section 55.

45(1)        Subsection 55(1) is amended in the part before clause (a) by striking out "under any of clauses 54(a) to (f)".

45(2)       Subsection 55(2) is repealed.

45(3)       Subsection 55(3) is amended by striking out "subsections (1) and (2)" and substituting "subsection (1)".

45(4)       Subsection 55(4) is replaced with the following:

Further penalty

55(4)       If a person is convicted of an offence for a contravention of subsection 43.3(1), he or she shall not work in a supervisory capacity at any workplace for a six month period after the date of conviction.

45(5)       The following is added after subsection 55(4):

Time limit for prosecution

55(5)       A prosecution under this Act may be commenced not later than two years after the day the alleged offence was committed.

Additional penalties

55.1(1)     When a person is convicted of an offence under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, order the offender to pay to the minister an amount that the government must use for the purpose of educating the public on matters relating to workplace safety and health.  Such a penalty may be required in addition to any other penalty that may be imposed under this Act.

Limit

55.1(2)     The total of

(a)  any additional amount required to be paid under subsection (1); and

(b) any penalty required to be paid under section 55;

must not exceed the amount of the maximum penalty for which the offender could be liable under section 55.

46          Subsection 57(3) is amended by striking out "an appeal under subsection 37(2) and subsection 39(1)" and substituting "any appeal involving an improvement order or a stop work order"

47          Section 59 is repealed.

Consequential amendment, C.C.S.M. c. L10

48          The Labour Relations Act is amended by adding the following after subsection 141(1):

Regulations may relate to duties under other Acts

141(1.1)    The board may make regulations under subsection (1) respecting hearings it conducts or determinations it makes under other Acts.

Coming into force

49(1)       This Act, except section 42, comes into force on the day it receives royal assent.

Coming into force: section 42

49(2)       Section 42 comes into force 90 days after the day this Act receives royal assent.

Explanatory Note

This Bill makes a number of changes in the Act governing workplace safety and health in Manitoba.  The key changes are as follows:

New duties for employers

The Bill creates new duties for employers and clarifies existing duties, which include:

  • training workers
  • ensuring that work is performed only by workers with appropriate training and experience or under close and competent supervision
  • implementing a written safety and health program at workplaces with 20 or more workers
  • ensuring that all work is sufficiently and competently supervised
  • responding to recommendations of a committee or representative within 30 days

New duty for supervisors

The Bill requires supervisors to take reasonable precautions to protect the safety and health of workers under their supervision and make them aware of risks in the workplace.

New duties for contractors, owners and suppliers

The Bill places new duties on contractors, prime contractors, owners and suppliers:

  • Contractors must take reasonable precautions to ensure that matters under their control do not create a risk to the safety and health of persons at the workplace.
  • Prime contractors are required for construction projects involving more than one employer or self-employed person. A prime contractor must co-ordinate work on the project and ensure that all persons working on the project comply with the Act.
  • Owners of land or premises used as a workplace must take reasonable precautions to ensure that matters under their control do not create a risk to the safety and health of persons.
  • Persons who supply biological or chemical substances and other equipment to a workplace must ensure they are safe when used in accordance with instructions provided.

Safety and health information

The Bill requires safety and health information to be shared between employers, prime contractors, contractors, owners and suppliers.

Workplace safety and health committees and worker safety and health representatives

The Bill contains new provisions respecting committees and representatives.  The key changes are as follows:

  • New duties for committees and representatives are specified.  They include making recommendations to the employer about safety and health in the workplace, inspecting the workplace at regular intervals and participating in workplace investigations.
  • The worker co-chair of the committee and a representative may be involved in the resolution of a situation involving a right to refuse dangerous work.
  • A committee and a representative are entitled to be given copies of safety and health inspections, audits, investigations and monitoring reports.
  • Committee members and representatives do not lose pay or benefits when carrying out their duties.

Discriminatory action

The Bill makes changes respecting discriminatory action:

  • Discriminatory action is defined.
  • Officers appointed under the Act may investigate and resolve discriminatory action complaints rather than the Labour Board, although an officer's decision may be appealed to the Board.
  • A worker affected by a stop work order or by a refusal to perform dangerous work may be assigned to alternate work with no loss of pay or benefits.

Appeal process

The process for appealing orders under the Act is streamlined. Decisions made by officers may be appealed to the director.  Decisions made by the director may be appealed to the Labour Board.

Fines and administrative penalties

This Bill allows a court to impose an additional fine on an offender which is to be used for public education.  The Bill also includes a system of administrative penalties for non-compliance with improvement orders.