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C.C.S.M. c. W210

The Workplace Safety and Health Act

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

DEFINITIONS

Definitions

1           In this Act, unless otherwise specified,

"advisory council" means the Advisory Council on workplace safety and health established under this Act; (« Conseil consultatif »)

"agency of the government" means any board, commission, association, or other body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board directors of which,

(a) are appointed by an Act of the Legislature or by the Lieutenant Governor in Council, or

(b) if not so appointed, are, in the discharge of their duties, public officers or servants of the Crown, or, for the proper discharge of their duties are, directly or indirectly, responsible to the Crown; (« organisme gouvernemental »)

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

"branch" means the Workplace Safety and Health Branch; (« Direction »)

"chief occupational medical officer" means the person designated as Chief Occupational Medical Officer under this Act; (« médecin du travail en chef »)

"chief prevention officer" means the Chief Prevention Officer appointed under section 17.1; (« conseiller principal en prévention »)

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

"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 »)

"department" means such department of the government of Manitoba as may be designated by the Lieutenant Governor in Council for the purpose of this Act; (« ministère »)

"director" means the Director of the Workplace Safety and Health Branch appointed under subsection 14(4.1); (« directeur »)

"discriminatory action" means any act or omission by an employer or any person acting under the authority of the employer or any union which adversely affects any term or condition of employment, or of membership in a union, and without restricting the generality of the foregoing includes lay-off, suspension, dismissal, loss of opportunity for promotion, demotion, transfer of duties, change of location of workplace, reduction in wages, or change in working hours but does not include the temporary relocation of a worker to other similar or equivalent work without loss of pay or benefits until a condition that threatens the safety or health of the worker is remedied; (« mesure discriminatoire »)

"employer" includes

(a) every person who, by himself or his agent or representative employs or engages one or more workers, and

(b) the Crown and every agency of the government; (« employeur »)

"health" means the condition of being sound in body, mind and spirit, and shall be interpreted in accordance with the objects and purposes of this Act; (« santé »)

"improvement order" means an order made under section 26; (« ordre d'amélioration »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"occupational health nurse" means a registered nurse as defined by The Registered Nurses Act; (« infirmière hygiéniste »)

"occupational health service" means a service organized in or near a workplace for the purposes of

(a) protecting workers against any health hazard that may arise out of their work or the conditions under which it is carried on,

(b) ensuring the physical and mental adjustment of workers in their employment and ensuring their assignment to jobs for which they are suited, and

(c) contributing to the establishment and maintenance of a high degree of physical and mental well-being of the workers; (« service d'hygiène »)

"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, licensee or occupier of the land or premises, and

(b) a person who acts for or on behalf of an owner as an agent or delegate,

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 »)

"physician" means a duly qualified medical practitioner; (« médecin »)

"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 »)

"safety" means the prevention of physical injury to workers and the prevention of physical injury to other persons arising out of or in connection with activities in the workplace; (« sécurité »)

"safety and health officer" means a person designated as a safety and health officer under this Act; (« agent de sécurité et d'hygiène »)

"stop work order" means an order made under section 36; (« ordre d'arrêt du travail »)

"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 »)

"union" means a union as defined under The Labour Relations Act; (« syndicat »)

"welfare" means the conditions or facilities, in or near a workplace, provided for the feeding, rest, hygiene or sanitary requirements of a worker; (« bien-être »)

"worker" includes

(a) any person who is employed by an employer to perform a service whether for gain or reward, or hope of gain or reward or not,

(b) any person engaged by another person to perform services, whether under a contract of employment or not

(i) who performs work or services for another person for compensation or reward on such terms and conditions that he is, in relation to that person, in a position of economic dependence upon that person more closely resembling the relationship of any employee than that of an independent contractor, and

(ii) who works or performs services in a workplace which is owned or operated by the person who engages him to perform services,

(c) any person undergoing training or serving an apprenticeship at an educational institution or at any other place; (« travailleur »)

"worker safety and health representative" means the person designated as a worker safety and health representative under this Act; (« délégué à la sécurité et à la santé des travailleurs »)

"workplace" means any building, site, workshop, structure, mine, mobile vehicle, or any other premises or location whether indoors or outdoors in which one or more workers, or self-employed persons, are engaged in work or have worked. (« lieu de travail »)

S.M. 2002, c. 33, s. 3; S.M. 2013, c. 9, s. 2.

PURPOSE OF THIS ACT

General objects and purposes

2(1)        The objects and purposes of this Act are

(a) to secure workers and self-employed persons from risks to their safety, health and welfare arising out of, or in connection with, activities in their workplaces; and

(b) to protect other persons from risks to their safety and health arising out of, or in connection with, activities in workplaces.

Specific objects and purposes

2(2)        Without limiting the generality of subsection (1), the objects and purposes of this Act include

(a) the promotion and maintenance of the highest degree of physical, mental and social well-being of workers;

(b) the prevention among workers of ill health caused by their working conditions;

(c) the protection of workers in their employment from factors promoting ill health;

(d) the placing and maintenance of workers in an occupational environment adapted to their physiological and psychological condition; and

(e) the promotion of workers' rights

(i) to know about safety and health hazards in their workplaces,

(ii) to participate in safety and health activities at their workplaces,

(iii) to refuse dangerous work, and

(iv) to work without being subject to discriminatory action.

S.M. 2013, c. 9, s. 3.

APPLICATION OF THIS ACT

Application of Act

3           This Act applies to

(a) the Crown in right of Manitoba and every agency of the government;

(b) every employer, worker and self-employed person whose workplace safety, health and welfare standards are ordinarily within the exclusive jurisdiction of the Legislature to regulate; and

(c) the Crown in right of Canada, every agency of the government of Canada, and every other person whose workplace safety, health and welfare standards are ordinarily within the jurisdiction of the Parliament of Canada, to the extent that the Crown in right of Canada may submit to the application of this Act.

DUTIES OF EMPLOYERS

General duties of employers

4(1)        Every employer shall in accordance with the objects and purposes of this Act

(a) ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his workers; and

(b) comply with this Act and regulations.

Further duties of employer

4(2)        Without limiting the generality of an employer's duty under subsection (1), every employer shall

(a) provide and maintain a workplace, necessary equipment, systems and tools that are safe and without risks to health, so far as is reasonably practicable;

(b) provide to all his workers such information, instruction, training, supervision and facilities to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his workers;

(c) ensure that all his workers, and particularly his supervisors, foremen, chargehands or similar persons, are acquainted with any safety or health hazards which may be encountered by the workers in the course of their service, and that workers are familiar with the use of all devices or equipment provided for their protection;

(d) conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons who are not in his service are not exposed to risks to their safety or health arising out of, or in connection with activities in his workplace;

(e) consult and co-operate with the workplace safety and health committee where such a committee exists, regarding the duties and matters with which that committee is charged under this Act;

(f) consult and co-operate with the worker safety and health representative where such a representative has been designated, regarding the duties and matters with which that representative is charged under this Act;

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

(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.

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.

S.M. 2002, c. 33, s. 7.

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.

S.M. 2002, c. 33, s. 7.

DUTIES OF WORKERS

General duties of workers

5           Every worker while at work shall, in accordance with the objects and purposes of this Act,

(a) take reasonable care to protect his safety and health and the safety and health of other persons who may be affected by his acts or omissions at work;

(b) at all times, when the nature of his work requires, use all devices and wear all articles of clothing and personal protective equipment designated and provided for his protection by his employer, or required to be used and worn by him by the regulations;

(c) consult and co-operate with the workplace safety and health committee, where such a committee exists, regarding the duties and matters with which that committee is charged under this Act;

(d) consult and co-operate with the worker safety and health representative, where such a representative has been designated, regarding the duties and matters with which that representative is charged under this Act;

(e) comply with this Act and the regulations; and

(f) co-operate with any other person exercising a duty imposed by this Act or the regulations.

DUTIES OF SELF-EMPLOYED PERSONS

General duties of self-employed persons

6           Every self-employed person shall, in accordance with the objects and purposes of this Act,

(a) conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he or any other person is not exposed to risks to his or that person's safety or health, arising out of, or in connection with, activities in his workplace;

(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;

(b) comply with this Act and the regulations; and

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

S.M. 2002, c. 33, s. 10.

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.

S.M. 2002, c. 33, s. 11.

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.

S.M. 2002, c. 33, s. 12.

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.

S.M. 2002, c. 33, s. 12.

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.

S.M. 2002, c. 33, s. 12.

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 every three years or more often 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.

S.M. 2002, c. 33, s. 12; S.M. 2013, c. 9, s. 4.

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.

S.M. 2002, c. 33, s. 12.

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.

S.M. 2002, c. 33, s. 12.

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.

S.M. 2002, c. 33, s. 12.

RELATIONSHIP OF THIS ACT TO THE WORKERS COMPENSATION ACT

Effect on compensation

8           The failure to comply with any provision of this Act or the regulations does not affect the right of a worker to compensation under The Workers Compensation Act.

Effect on liabilities

9           The liabilities and obligations of any person under The Workers Compensation Act are not decreased, reduced, or removed, by reason only of his compliance with the provisions of this Act or the regulations.

10          Renumbered as subsection 14(4).

11(1)       [Repealed] S.M. 1991-92, c. 36, s. 65.

11(2)       Renumbered as subsection 14(5).

S.M. 1991-92, c. 36, s. 65.

DUTIES AND POWERS OF THE DIRECTOR

Duties of director

12          The director shall, in accordance with the objects and purposes of this Act,

(a) be concerned with workplace safety and health generally, and with the maintenance of reasonable standards for the protection of the safety and health of workers and self-employed persons in Manitoba;

(b) be responsible for the administration of this Act and the regulations;

(c) submit from time to time to the minister such recommendations as he considers appropriate for the making of regulations;

(d) ensure that persons and organizations concerned with the purposes of this Act are provided with information and advice pertaining to its administration and to the protection of the safety and health of workers generally;

(e) prepare and maintain or cause to be prepared and maintained illness, death and accident statistics relating to workers and self-employed persons, and do so either alone or in conjunction with The Workers Compensation Board, the Department of Health, Healthy Living and Seniors, or any other department, agency or commission; and

(f) do such other things in connection with safety and health in the workplace as the minister may direct, for the purposes of carrying out the provisions of this Act and the regulations and the provisions of any other Act or regulations assigned to the minister for administration.

S.M. 2013, c. 9, s. 5; S.M. 2014, c. 32, s. 38.

Powers of director

13          The director may, in accordance with the objects and purposes of this Act,

(a) provide assistance to persons concerned with safety and health in the workplace, and provide services to assist workplace safety and health committees, employers and workers in maintaining reasonable standards for the protection of the safety and health of workers;

(b) carry out studies and research, or cause studies and research to be carried out, and make arrangements for the publication of results of research, in matters relating to the safety and health of workers;

(c) encourage, develop and conduct, either alone or in co-operation with organizations concerned with the purposes of this Act, education and information programs for promoting the safety and health of workers and for improving the qualifications of persons concerned with workplace safety and health;

(d) make recommendations to the minister regarding grants of moneys for any of the purposes referred to in this section;

(d.1) make recommendations to the minister regarding workplace safety and health and the prevention of workplace injury and illness;

(d.2) coordinate examinations and investigations

(i) for determining the cause and particulars of any accident or ill health occurring to a worker, or self-employed person, and arising out of or in connection with activities in the workplace, or

(ii) for the prevention of accidents or ill health arising out of or in connection with activities in the workplace; and

(e) perform such other functions as the minister may direct for the proper administration of this Act and the regulations.

S.M. 2013, c. 9, s. 6.

Public reporting of orders and penalties

13.1        The director may issue public reports disclosing details of improvement orders, stop work orders and administrative penalties made or imposed under this Act. The reports may disclose personal information as defined in The Freedom of Information and Protection of Privacy Act.

S.M. 2013, c. 9, s. 7.

DUTIES AND POWERS OF THE MINISTER

Powers of minister

14(1)       The minister may, in accordance with the objects and purposes of this Act,

(a) authorize the director or any other person to investigate and make a special report to him on any accident, occurrence, or any matter of safety and health in the workplace;

(b) appoint the director or any other person to conduct a public inquiry into any matter of safety or health in the workplace, and the director or the person so appointed, for the purpose of an inquiry, has all the powers of a commissioner under Part V of The Manitoba Evidence Act;

(c) appoint consultants and advisors who are professionally or technically qualified to advise him in the making of regulations, or to advise him on the administration of this Act or regulations;

(d) call meetings of the advisory council on workplace safety and health;

(e) approve, with or without modifications, any recommendation submitted to the minister by the advisory council or the chief prevention officer;

(f) do such other things as he deems necessary for the proper carrying out of this Act.

Remuneration and expenses

14(2)       Subject to the approval of the Lieutenant Governor in Council, members of the advisory council and consultants or advisors may be paid such remuneration and out-of-pocket expenses as may be authorized by the minister.

Payment of certain costs

14(3)       The minister may authorize the payment of certain costs

(a) for investigative and consultative services; and

(b) for medical examinations and reports made under this Act, the costs of which are not payable from public funds;

that may be carried out or rendered for the purposes of this Act.

Administration of Act

14(4)       This Act is to be administered through the Workplace Safety and Health Branch of the department.

Minister to appoint director

14(4.1)     The minister must appoint a person, in accordance with The Civil Service Act, as the Director of the Workplace Safety and Health Branch.

Consolidated Fund

14(5)       To assist in defraying the expenses incurred in the administration of this Act moneys may be paid from the Consolidated Fund, if authorized by an Act of the Legislature to be so paid and applied.

S.M. 2002, c. 33, s. 14 and 15; S.M. 2013, c. 9, s. 8.

ADVISORY COUNCIL

Advisory council

15(1)       The Lieutenant Governor in Council may in accordance with subsection (2) appoint a council to be known as "The Advisory Council on Workplace Safety and Health", which shall consist of a chairperson and not less than six or more than 12 members.

Composition of advisory council

15(2)       Of the members appointed under subsection (1),

(a) 1/3 shall be appointed after consultations by the minister with organizations representing workers;

(b) 1/3 shall be appointed after consultations by the minister with organizations representing employers; and

(c) 1/3 shall be appointed after consultations by the minister with technical and professional bodies whose members are concerned with the general purposes of this Act.

Chairperson

15(3)       In addition to the members appointed under subsection (1), the Lieutenant Governor in Council shall appoint a person, other than a person appointed under subsection (1), as chairperson of the advisory council; but the chairperson does not have a vote in the affairs of the advisory council.

Term of office

15(4)       The chairperson and members of the advisory council shall hold office for a term of three years and thereafter until their successors are appointed.

Quorum

15(5)        A majority of the members of the advisory council, which shall include two persons representing the views of workers and two persons representing the views of employers, constitute a quorum of the advisory council.

Meetings of council

16(1)       The council shall meet at the call of the minister or the chairperson, but in any case at least once a year.

Jurisdiction of council

16(2)       The council may advise or make recommendations to the minister on any one or more of the following matters;

(a) workplace safety and health generally, and the protection of workers in specific workplace situations;

(b) the appointment of consultants and advisors by the minister; and

(c) any matter relating to workplace safety and health on which the minister seeks the council's opinion.

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.

S.M. 2002, c. 33, s. 19.

CHIEF OCCUPATIONAL MEDICAL OFFICER

Chief occupational medical officer

17(1)       The minister shall appoint as chief occupational medical officer for the purpose of this Act, a person who is a duly qualified medical practitioner and who has training and experience in occupational medicine.

Powers of chief occupational medical officer

17(2)       The chief occupational medical officer has all the powers of a workplace safety and health officer as set out in this Act, and such other powers as may be conferred upon him by the minister or the regulations.

Authorization for occupational health nurse

17(3)       The chief occupational medical officer may provide written authority to a person who is an occupational health nurse to enter a workplace for the purpose of enforcing provisions of this Act, and a person so authorized shall have such duties and powers as are prescribed for the person by the chief occupational medical officer, but the duties and powers prescribed shall not include any duties and powers that are not prescribed for a person who is appointed as a safety and health officer under this Act.

CHIEF PREVENTION OFFICER

Chief prevention officer

17.1(1)     The minister must appoint a person as the chief prevention officer.

Term of appointment

17.1(2)     The chief prevention officer may be appointed for a term not exceeding five years and may be appointed for successive terms not exceeding five years.

Responsibilities

17.1(3)     The chief prevention officer has the following responsibilities:

(a) to provide advice to the minister

(i) on the prevention of workplace injury and illness, and

(ii) on any other matter, as requested by the minister;

(b) to develop recommendations, at the minister's request, respecting the prevention of workplace injury and illness;

(c) to provide an annual report to the minister respecting the prevention of workplace injury and illness that includes

(i) an analysis of serious incidents at workplaces, including injury data, in order to identify current and emerging issues and trends respecting workplace injury and illness,

(ii) information on the progress being made in implementing government measures to prevent workplace injury and illness, and

(iii) an analysis of the effectiveness of prevention activities undertaken during the year;

(d) to do any other thing in connection with the prevention of injury and illness in the workplace, as requested by the minister.

Annual report by chief prevention officer

17.1(4)     The minister must make the chief prevention officer's annual report available to the public by posting it on the department's website and by any other means the minister considers advisable.

Workplace injury and illness prevention recommendations

17.1(5)     The chief prevention officer's recommendations respecting the prevention of workplace injury and illness must include

(a) a statement of the goals for preventing injury and illness in the workplace;

(b) key performance indicators for measuring the achievement of the goals; and

(c) any other matter specified by the minister.

Consultation

17.1(6)     In preparing the recommendations, the chief prevention officer must consult with

(a) organizations representing workers;

(b) organizations representing employers;

(c) technical and professional bodies whose members are concerned with the general purposes of this Act;

(d) other departments of the government and agencies of the government; and

(e) any other persons or organizations that the minister considers advisable.

S.M. 2013, c. 9, s. 9.

REGULATIONS, CODES AND STANDARDS

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;

(c.1) respecting the prohibition of smoking at workplaces, including deeming a contravention of The Non-Smokers Health Protection Act relating to workplaces to be a contravention of this Act for the purpose of issuing an improvement order under section 26;

(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;

(bb.1) for the purpose of section 21, respecting the criteria to be used and the procedures to be followed when determining whether to make an order, or to reconsider an order, exempting a person or class of persons from any provision of a regulation;

(bb.2) for the purpose of section 40,

(i) respecting the procedures to be followed in determining whether to issue an order, or to reconsider an order, under subsection 40(6) or (7.1), and

(ii) respecting any additional criteria to be considered by the director under subsection 40(7);

(cc) for the purpose of section 53.1,

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

(i.1) prescribing provisions of this Act or the regulations for the purposes of subclauses 53.1(1)(a)(ii) and (2)(a)(ii),

(ii) respecting the determination of amounts of administrative penalties, which may vary according to the number of workers affected by, or the nature or frequency of, the matter that gave rise to the issuance of the notice of administrative penalty, 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.

Application of regulations

18(2)       A regulation made under subsection (1) may be made applicable generally to all workplaces, or particularly to one or more workplaces, or to such classes thereof as may be specified therein.

S.M. 2002, c. 33, s. 22; S.M. 2004, c. 17, s. 10; S.M. 2013, c. 9, s. 10.

Approval of codes of practice

19(1)       For the purpose of providing practical guidance with respect to the requirements of any provision of the regulations, the director may approve and issue such codes of practice or any amendment or revision thereof as in his opinion are suitable for that purpose.

Notice in Gazette

19(2)       Where a code of practice is approved by the director under subsection (1), he shall cause to be published in the Manitoba Gazette a notice identifying the code, specifying the provisions of the regulations to which it applies and stating the effective date of the approval.

Failure to observe code, no offence

20(1)       The failure by any person to observe any provision of an approved code of practice is not of itself an offence.

Admissibility of codes as evidence

20(2)       Where a person is charged with a breach of any provision of the regulations in respect of which the director has issued a code of practice, that code is admissible as evidence in a prosecution for the violation of the provision of the regulation.

Certified copy of code required

20(3)       A copy of a code of practice, or any amendment or revision thereto as approved by the director, certified to be a true copy by the director shall be received as evidence in any court without proof of the signature or of the official character of the person purporting to have signed the certificate.

Onus

20(4)       Where a code of practice is admitted as evidence under subsection (2), and a prima facie case of non-compliance with the code of practice is established, the onus is on the accused to prove that he has complied with the regulation.

Exemption from regulation

21(1)       After consulting with any parties he or she considers appropriate, the director may, in accordance with the regulations, make 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 and any criteria set out in the regulations are met.

Terms and conditions of order

21(3)       The director may impose any terms or conditions in connection with the order that the director considers necessary to maintain the safety or health of a worker.

Reconsideration of exemption order

21(4)       If, after making an order under this section, additional information comes to the attention of the director, the director may, in accordance with the regulations, reconsider the order and

(a) confirm the order; or

(b) vary, suspend or revoke the order if the director believes that

(i) he or she would have come to a different decision if the information had been known when the order was made, or

(ii) a worker's safety or health is materially affected by the order.

S.M. 2002, c. 33, s. 23; S.M. 2013, c. 9, s. 11.

SAFETY AND HEALTH OFFICERS

Appointment of safety and health officers

22(1)       The minister may appoint persons as safety and health officers for the purpose of enforcing this Act and the regulations.

Agreements with other provinces

22(2)       The minister may enter into an agreement with any province authorizing a person employed by that province to act as a safety and health officer for the purpose of this Act.

Inspections for other jurisdictions

22(3)       The minister may consent to have a safety and health officer carry out safety and health inspections or other work on behalf of another province or the Government of Canada upon such terms and conditions as he deems advisable.

Credentials to be provided to safety and health officer

22(4)        The minister shall provide each safety and health officer with written credentials of his appointment which the officer shall produce upon request when exercising or seeking to exercise any of the powers conferred on him under this Act.

Duties of safety and health officers

23          A safety and health officer shall

(a) make such inspections and inquiries, and carry out such tests, as he deems necessary to ascertain whether compliance is being made with the provisions of this Act and the regulations; and

(b) carry out such other duties as may be assigned to safety and health officers under this Act or the regulations.

Powers of safety and health officers

24(1)       For the purpose of enforcing this Act and the regulations, a safety and health officer may, at any reasonable time, or where in his opinion a situation exists that is or may be dangerous at any time

(a) without a warrant and without prior notification enter any place or premises in which he has reason to believe workers or self-employed persons are working or were working, other than premises used for personal residential purposes;

(b) under the authority of an order made under subsection (2), enter any premises used for personal residential purposes in which he has reason to believe workers or self-employed persons are working or were working;

(c) take with him any other person, and such equipment and materials, as he needs to assist him; and arrange with the employer, or person in charge of the place or premises, for that other person to re-enter alone to perform specified duties;

(d) make such examinations and investigations as he deems necessary for determining the cause and particulars of any accident or ill health occurring to a worker, or self-employed person, and arising out of or in connection with activities in the workplace, or for the prevention of accidents or ill health arising out of or in connection with activities in the workplace;

(e) take such measurements and photographs, make such tests and recordings, and take such samples of articles or substances found in the place or premises, or of the atmosphere in or near the place or premises as he deems necessary;

(f) test or cause to be tested any equipment in the place or premises, or for the purposes of testing, require the equipment to be removed to a place designated by the director;

(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;

(g) cause any article, substance or sample taken pursuant to clause (e), to be dismantled or subjected to any process or test but not in such manner as to damage or destroy it unless under the circumstances damage thereto is unavoidable or necessary;

(h) in the case of any article, substance or equipment mentioned in clauses (e) and (g), to take possession thereof and detain it for so long as is necessary for use as evidence in any proceedings or prosecution under this Act;

(i) require any documents, books, or records that relate in any way to the safety and health in workplaces of workers, or self-employed persons, to be produced for inspection and to make copies thereof or take extracts therefrom;

(j) require any person to provide him with facilities or assistance with respect to any matters or things within that person's control, or in relation to which that person has responsibilities;

(k) in conducting any inspection, inquiry, investigation, or examination under this section, or under section 23 require any person, whom the officer has reasonable cause to believe to possess any information respecting the conditions of workplace safety, health and welfare, to attend an interview and to provide full and correct answers, either orally or in writing, to such questions as the officer thinks fit to ask; and the interview shall take place in the absence of persons other than a person nominated by the person being interviewed to be present, and any other person whom the officer may allow to be present;

(l) direct that any workplace, or part thereof, or anything therein, be left undisturbed for such time as is reasonably necessary for any of the purposes specified in clauses (d), (e) and (g);

(m) do such other things as may be authorized by the minister.

Order for entry into residential premises

24(2)       A safety and health officer may apply to a judge of the Court of Queen's Bench for an order requiring the person in possession of any residential premises in which the safety and health officer has reason to believe workers or self-employed workers are working or were working to permit the safety and health officer to enter the residential premises for the purposes of inspecting them and, if the judge is satisfied that it is reasonable and necessary for the administration of the Act to grant such an order, he may grant the order.

S.M. 2002, c. 33, s. 25.

Power of commissioner under Evidence Act

25          A safety and health officer, for the purpose of conducting an inspection, inquiry or investigation under this Act or the regulations, has all the powers of a commissioner under Part V of The Manitoba Evidence Act.

IMPROVEMENT ORDERS

Improvement orders

26(1)       Where a safety and health officer is of the opinion that a person

(a) is contravening any provision of this Act or the regulations; or

(b) has contravened any provision of this Act or the regulations in circumstances which make it likely that the contravention will continue or be repeated;

the officer may make an improvement order against that person, requiring that person to remedy the contravention within such period as may be specified in the order and stating the reasons for making the order and requiring the person to maintain compliance with the improvement order.

Stop work warning

26(2)       Where the officer believes that the contravention referred to in clause (1)(a) or (b), involves or is likely to involve a serious risk to the safety or health of any person in or about the workplace, he may, in the improvement order specify that if the contravention is not remedied within the period mentioned therein, a stop work order may be issued in accordance with section 36.

S.M. 2013, c. 9, s. 12.

27 to 31    [Repealed]

S.M. 2002, c. 33, s. 27.

32          Renumbered as section 36.3.

Remedial measures

33          An improvement order may, but need not, include directions as to the measures to be taken to remedy any contravention or matter to which the order relates, and those directions

(a) may be made by reference to any approved code of practice; and

(b) may set out different ways of remedying the contravention or matter.

Period for compliance with improvement orders

34          Where an improvement order provides a period for compliance therewith

(a) the period shall begin at the time the order is communicated to the person against whom it is made;

(b) the order may be withdrawn by the safety and health officer at any time before the end of the specified period; or

(c) the period may be extended by the safety and health officer, unless an appeal against the order is made and not finally disposed of.

Reporting compliance with improvement orders

35(1)       The person against whom an improvement order is made shall

(a) within seven days after the expiry of the period specified in the order or any extension thereof prepare a written report on the measures taken to remedy the contravention and on any measures yet to be taken;

(b) send a copy of the report to the workplace safety and health officer who made the order;

(c) provide a copy of the report to the workplace safety and health committee for the workplace with respect to which the order was made or to the worker safety and health representative, if no safety and health committee exists; and

(d) post in a prominent place at or near the workplace a copy of the report if there is no safety and health committee or a worker safety and health representative for the workplace.

Achieving compliance with improvement orders

35(2)       Despite the submission of a report under subsection (1), the report is not determinative of whether or not the improvement order has been complied with. The person against whom an improvement order is made only achieves compliance with the order when an officer determines that compliance has been achieved.

S.M. 2002, c. 33, s. 29; S.M. 2013, c. 9, s. 13.

STOP WORK ORDERS

Stop work order

36(1)       Where a safety and health officer is of the opinion that activities that involve, or are likely to involve, an imminent risk of serious physical or health injury are being carried on, or are about to be carried on, in a workplace, or where a contravention specified in an improvement order was not remedied and a warning was given in accordance with subsection 26(2), the officer may make a stop work order providing for any one or more of the following matters:

(a) the cessation of those activities;

(b) that all or part of the workplace be vacated;

(c) that no resumption of those activities be permitted by the employer.

Stop work order — multiple workplaces

36(1.1)     Where a safety and health officer is of the opinion that activities that involve, or are likely to involve, an imminent risk of serious physical or health injury are being carried on, or are about to be carried on, by workers of the same employer at more than one workplace, the officer may make a stop work order providing for any one or more of the following matters:

(a) the cessation of those activities;

(b) that all or part of any of the employer's workplaces be vacated;

(c) that no resumption of those activities be permitted by the employer at any of the employer's workplaces.

Improvement work not affected

36(2)       A stop work order does not prevent the doing of any work or thing that may be necessary in order to remove the risk of injury referred to in subsection (1) or (1.1).

36(3)       [Repealed] S.M. 2002, c. 33, s. 31.

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 stop work order not been issued; and

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

If alternate work not available

36(7)       If the employer provides satisfactory evidence to the director that alternate work is not available, the director may order that clause 6(a) does not apply for any period that the director specifies in the order, but until the director makes an order the employer is required to provide a worker with all wages and benefits under that clause.

Appeal

36(8)       A person affected by an order of the director under subsection (7) may appeal it to the Board. In that case, section 39 applies with necessary changes.

S.M. 2002, c. 33, s. 31; S.M. 2013, c. 9, s. 14.

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.

S.M. 2002, c. 33, s. 31.

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.

S.M. 2002, c. 33, s. 31.

Communication to workplace committees

36.3(1)     A copy of every improvement order shall be provided by the safety and health officer to

(a) the workplace safety and health committee for the workplace with respect to which the order was made; or

(b) the worker safety and health representative, if no safety and health committee exists for the workplace.

Posting improvement order

36.3(2)     Where there is no workplace safety and health committee or a worker safety and health representative for the workplace, the officer shall post in a prominent place at or near the workplace a copy of every improvement order.

S.M. 2002, c. 33, s. 28.

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 and list the persons interested in the appeal.

Submissions from interested persons

37(2.1)     The director must give the interested persons listed in the notice of appeal an opportunity to provide oral or written submissions, as determined by the director, about the matter that is the subject of 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.

S.M. 1995, c. 33, s. 23; S.M. 2002, c. 33, s. 32; S.M. 2013, c. 9, s. 15.

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.

Reasons

38(2)       The director must give written reasons for a decision to refer an appeal to the Board under subsection (1).

Director to give information to Board

38(3)       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.

S.M. 2002, c. 33, s. 32.

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 state the reasons for the appeal and 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.

S.M. 2002, c. 33, s. 32; S.M. 2013, c. 9, s. 16.

WORKPLACE SAFETY AND HEALTH COMMITTEES AND REPRESENTATIVES

Workplace safety and health committee

40(1)       An employer must establish a workplace safety and health committee

(a) for each workplace where

(i) in the case of a seasonal workplace, at least 20 of the employer's workers are involved, or are expected to be involved, in work and the work is expected to continue for at least 90 days, and

(ii) in the case of any other workplace, at least 20 of the employer's workers are regularly employed; and

(b) for any other individual workplace or class of workplace designated by a 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, in accordance with the regulations, 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;

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

(d) with respect to an order under subsection (6), any additional criteria set out in the regulations.

Reconsideration re one committee for multiple workplaces

40(7.1)     If, after making an order under subsection (6), additional information comes to the attention of the director, the director may, in accordance with the regulations, reconsider the order and

(a) confirm the order; or

(b) vary, suspend or revoke the order if the director believes that

(i) he or she would have come to a different decision if the information had been known when the order was made, or

(ii) a worker's safety or health is materially affected by the order.

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.

Time off for committee work

40(11)      A member of a committee is entitled to take the following time off from his or her regular duties:

(a) one hour or such longer period of time as the committee determines is necessary to prepare for each committee meeting;

(b) the time required to attend each meeting of the committee;

(c) the time required to attend workplace safety and health training in accordance with section 44, as approved by the committee and the employer;

(d) such time as the committee determines is necessary to carry out his or her duties as a committee member under this Act and the regulations.

Entitlement to pay for work as committee member

40(12)      A member of a committee is deemed to be at work during the times described in subsection (11) and is entitled to be paid for those times by his or her employer at the member's regular or premium pay, as applicable.

Training of committee members

40(13)      The employer or prime contractor must ensure that committee members are trained to competently fulfill their duties as committee members.

S.M. 2002, c. 33, s. 32; S.M. 2013, c. 9, s. 17.

Workplace safety and health representative

41(1)       Each employer shall cause a worker not associated with management to be designated as the worker safety and health representative

(a) at a workplace, other than a construction project, where a safety and health committee is not required but where five or more workers are regularly employed;

(b) at a construction project, notwithstanding the requirements for a safety and health committee; and

(c) at any other individual workplace or classes of workplaces designated by a written order of the director.

Appointment of representative

41(2)       The worker safety and health representative shall be appointed in accordance with the constitution of the union which is the certified bargaining agent or has acquired bargaining rights on behalf of those workers, or if no such union exists, shall be elected by the workers he represents.

Posting of name of representative

41(3)       The employer shall cause the name of the representative to be posted prominently in the workplace.

41(4)       [Repealed] S.M. 2002, c. 33, s. 33.

Duties of representative

41(5)       The worker representative shall, in co-operation with a representative of the employer, perform the same duties as set out for the workplace safety and health committees in section 40.

Time off for work as representative

41(6)       A representative is entitled to take the following time off from his or her regular duties:

(a) one hour to prepare for each safety and health meeting with the employer;

(b) the time required to attend each safety and health meeting with the employer;

(c) the time required to attend workplace safety and health training in accordance with section 44, as approved by the employer;

(d) such time as is necessary to carry out his or her duties as a representative under this Act and the regulations.

Entitlement to pay for work as representative

41(7)       A representative is deemed to be at work during the times described in subsection (6) and is entitled to be paid for those times by his or her employer at the representative's regular or premium pay, as applicable.

Training of representative

41(8)       The employer must ensure that the representative is trained to competently fulfill his or her duties as a representative.

S.M. 2002, c. 33, s. 33; S.M. 2013, c. 9, s. 18.

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.

Recommendation by co-chair of committee

41.1(1.1)   If a committee has failed to reach a decision about whether or not to make a recommendation under clause 40(10)(g) after attempting in good faith to do so, either co-chairperson may make written recommendations to the employer.

Employer response to recommendations

41.1(2)     Within 30 days after receiving a recommendation from a representative, a committee or a committee co-chairperson that identifies anything that may pose a danger to the safety or health of any person, the employer must respond in writing to the representative, committee or committee co-chairperson who made the recommendation.

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;

(a.1) contain any interim control measures that the employer will implement to address the danger posed to the safety or health of a person; 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.

S.M. 2002, c. 33, s. 33; S.M. 2013, c. 9, s. 19.

Information on request

41.2        If requested by a committee or a representative, or a worker if there is no committee or representative, the employer or prime contractor must disclose the following to the committee, representative or worker:

(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, other than a harassment investigation report;

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

(d) a report providing summary information on the results of a harassment investigation, without disclosing the circumstances relating to the complaint or any information that could identify a worker or other person involved with the matter.

S.M. 2002, c. 33, s. 33; S.M. 2013, c. 9, s. 20.

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).

S.M. 2002, c. 33, s. 33.

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)       In addition to the circumstances giving rise to discriminatory action as set out in subsection (1), 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.

S.M. 2002, c. 33, s. 34; S.M. 2013, c. 9, s. 21.

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.

S.M. 2002, c. 33, s. 34.

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 dangerous conditions

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 dangerous condition 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 dangerous condition 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

(a) the employer has advised the other worker, in writing, of

(i) the first worker's refusal,

(ii) the reasons for the refusal,

(iii) the other worker's right to refuse dangerous work under this section, and

(iv) the reason why, in the opinion of the employer, the work does not constitute a danger to the safety or health of the other worker, another worker or any person;

(b) where practicable, the first worker has advised the other worker of

(i) the first worker's refusal, and

(ii) the reasons for the refusal; and

(c) the actions required by subsections (3) and (4) have been taken.

S.M. 2002, c. 33, s. 34; S.M. 2013, c. 9, s. 22.

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, in writing,

(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.

S.M. 2002, c. 33, s. 34; S.M. 2013, c. 9, s. 23.

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.

S.M. 2002, c. 33, s. 34.

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.

S.M. 2002, c. 33, s. 34.

EDUCATIONAL LEAVE

Educational leave

44(1)       Subject to this section, every employer at a workplace where there is a committee or a representative, must allow each member of the committee, the representative, or their respective designates, to take educational leave each year, without loss of pay or benefits, for the purpose of attending workplace safety and health training seminars, programs or courses of instruction

(a) offered by the branch;

(b) approved by the committee; or

(c) provided for in the current collective bargaining agreement respecting the workers at the workplace.

Time allowed for educational leave

44(1.1)     The amount of time allowed for educational leave under subsection (1) is the greater of

(a) 16 hours; and

(b) the number of hours the worker normally works during two shifts.

Total number of safety and health committee members

44(2)       The total number of safety and health committee members for whom the employer is required to provide educational leave in accordance with subsection (1) during any year is equal to the number of members constituting the normal size of the committee.

Pay while attending educational leave programming

44(2.1)     The employer must pay a committee member, representative or designate who attends a workplace safety and health training program referred to in subsection (1) at the worker's regular or premium pay, as applicable, for the greater of

(a) the actual number of hours spent attending the training; and

(b) the number of hours the worker normally works during a normal shift.

Exception

44(2.2)     Subsection (1) does not apply to an employer on a construction project or an employer at a seasonal workplace as described in subclause 40(1)(a)(i).

Education program on construction sites

44(3)       On a construction project, each employer who employs five or more workers on that project shall institute a safety and health education program at the worksite at which all workers shall attend without loss of pay or other benefits for a period or periods equivalent to 30 minutes every two weeks, of which no period shall be less than 15 minutes.

Education program at seasonal workplace

44(4)       At a seasonal workplace as described in subclause 40(1)(a)(i), each employer must institute a safety and health education program at the workplace. All workers must attend the program without loss of pay or other benefits for a period or periods equivalent to 30 minutes every two weeks, of which no period may be less than 15 minutes, for the duration of the seasonal workplace.

S.M. 2002, c. 33, s. 36; S.M. 2013, c. 9, s. 24.

45          [Repealed]

S.M. 2002, c. 33, s. 37.

NEEDLES IN MEDICAL WORKPLACES

Use of safety-engineered needles

45.1(1)     When hollow-bore or intravenous needles are used in a medical workplace, the employer must ensure

(a) so far as is reasonably practicable, that workers use only safety-engineered needles; and

(b) that safe work procedures and practices relating to the use of those safety-engineered needles are implemented in the workplace.

If safety-engineered needles not practicable

45.1(2)     If it is not reasonably practicable to use safety-engineered needles in a medical workplace, the employer must ensure that safe work procedures and practices relating to the use of hollow-bore or intravenous needles are implemented in the workplace.

Procedures — needlestick injuries

45.1(3)     The employer must develop procedures to be followed in a medical workplace when a worker suffers a needlestick injury, including instructions for the worker suffering the injury.

Investigation and report required

45.1(4)     The employer must investigate and prepare a report on every needlestick injury to a worker in a medical workplace.

Definitions

45.1(5)     The following definitions apply in this section.

"medical workplace" means

(a) a hospital, a personal care home, a psychiatric facility, a medical clinic, a medical laboratory, a community health centre and CancerCare Manitoba;

(b) a physician's office;

(c) if prescribed by regulation, a registered dentist's office;

(d) an ambulance as defined in The Ambulance Services Act; and

(e) any other workplace where physical or mental health treatment or care is provided to a person. (« lieu de travail en milieu médical »)

"needlestick injury" means an injury caused by a hollow-bore or intravenous needle puncturing a person's skin or mucous membrane. (« blessure par piqûre d'aiguille »)

"safety-engineered needle" includes a shielded needle device, a retractable needle system and a needleless device. (« seringue conçue en vue d'un usage sécuritaire »)

S.M. 2005, c. 15, s. 2.

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.

S.M. 2002, c. 33, s. 38.

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 person who has the professional knowledge, experience or qualifications 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.

S.M. 2002, c. 33, s. 38.

47          [Repealed]

S.M. 2002, c. 33, s. 39.

Confidential information

48(1)       No person shall disclose any information with respect to any manufacturing or trade secret obtained by him by virtue of the exercise of any power conferred by this Act, except for the purpose of administering this Act and the regulations, or as required by law.

Names to remain confidential

48(2)       No person by whom information is obtained in confidence by virtue of any power conferred by this Act shall divulge the name of the informant to any person except for the purposes of this Act or the regulations.

Exemption from liability

49(1)       No action lies or shall be instituted against any person whether in his public or private capacity, where the person is acting under the authority of this Act or the regulations for any loss or damage suffered by any person by reason of anything done or omitted to be done by him in good faith, in the exercise of the powers given to him by this Act or the regulations.

No exemption in case of negligence

49(2)       Subsection (1) does not apply where the person exercising any of the powers given to him under this Act or the regulations is negligent in the performance thereof.

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.

S.M. 2002, c. 33, s. 40.

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.

Examinations during working hours

50(2)       Medical examinations shall, wherever reasonably practicable, be conducted during working hours without loss in pay to the worker being examined and the employer shall, if required by the physician or other qualified person, provide suitable accommodation for such examinations at the workplace, and otherwise facilitate the conduct of those examinations.

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.

S.M. 2002, c. 33, s. 41.

Reports

51(1)       Every physician or other qualified person attending or consulted respecting a person who,

(a) became ill or injured while employed at a workplace or while being otherwise engaged as a worker; or

(b) who has been examined pursuant to section 50;

shall furnish to the chief occupational medical officer upon request of the officer such reports concerning the condition of the person as the chief occupational medical officer may require for the purposes of this Act and the regulations.

Reports by hospitals

51(2)       Notwithstanding the provisions of any other Act, where a worker referred to in clause (1)(a) or (b) is, or has been, a patient in a hospital, the person in charge of the administrative affairs of that hospital shall furnish without charge to the chief occupational medical officer upon request such reports concerning the condition of the person as the chief occupational medical officer may require for the purposes of this Act and the regulations.

Information confidential

51(3)       Unless disclosed in a form calculated to prevent the information from being identified as relating to a particular person or case or unless disclosed as required by law, any information obtained by the chief occupational medical officer pursuant to section 50 and this section shall not be disclosed without the consent of the person examined or attended.

Power to require alternative work

52          Where it appears to the director upon the advice of the chief occupational medical officer that a worker has been over-exposed to a harmful substance and that a temporary removal from the hazard will enable the worker to resume his usual work, the director may by order require the employer to provide without loss of pay to the worker temporary alternative work which in the opinion of the director is suitable, for such period of time as the director may specify.

Requirement of occupational health service

53(1)       The minister may designate a workplace, or a class of workplaces, as requiring an occupational health service, having regard to the type of work being carried on therein, the number of workers employed thereat, and the degree or uncertainty of hazard thereof; and upon such designation, the employer shall cause an occupational health service to be established and maintained for the workplace in accordance with this section.

Minister may specify health services to be provided

53(2)       The minister may specify the services that are to be provided by the occupational health service for any workplace, or for any class of workplaces designated under subsection (1).

Continued operation of health service

53(3)       The establishment and continued operation of an occupational health service is subject to the approval of the minister.

ADMINISTRATIVE PENALTIES

Administrative penalty

53.1(1)     If a person

(a) has failed to comply with

(i) an improvement order within the period specified in the order, or

(ii) a prescribed provision of this Act or the regulations, and a safety and health officer is of the opinion that the failure involves, or is likely to involve, an imminent risk of serious physical or health injury to a worker or other person;

(b) has failed to maintain compliance with an improvement order after initially complying with it;

(c) has resumed an activity that previously was the subject of a stop work order which was discontinued because the person had complied with it; or

(d) was ordered to take action under section 42.1 because the person took discriminatory action against a worker;

the officer shall provide evidence of the matter to the director.

Imposing a penalty

53.1(2)     When the director determines that a person

(a) has failed to comply with

(i) an improvement order within the period specified in the order, or

(ii) a prescribed provision of this Act or the regulations, and the director is of the opinion that the failure involves, or is likely to involve, an imminent risk of serious physical or health injury to a worker or other person;

(b) has failed to maintain compliance with an improvement order after initially complying with it;

(c) has resumed an activity that previously was the subject of a stop work order but was discontinued because the person had complied with it; or

(d) was ordered to take action under section 42.1 because the person took discriminatory action against a worker;

the director 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 any period for appealing the matter that gave rise to the notice under subsection (2) 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 together with reasons for 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 decide the matter 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 may not be charged with an offence in respect of the matter that gave rise to the issuance of the notice of administrative penalty unless the matter continues after the penalty is paid.

Lien for debt

53.1(14)    The government has, in addition to any other remedy it has for the recovery of a debt arising under this section, a lien and charge on every estate or interest in real property and personal property of the person required to pay the debt (referred to in this section as the "debtor"), including property acquired by the debtor after the debt arose.

Extent of security

53.1(15)    The lien secures the payment of

(a) the amount of the debt when the lien takes effect;

(b) interest on the debt from the time the debt arose until it is paid in full, as determined under The Financial Administration Act and the regulations under that Act; and

(c) costs reasonably incurred by the director

(i) for the registration and discharge of the lien, and

(ii) in retaking, holding, repairing, processing, preparing for disposition or disposing of property in respect of which the lien is registered.

When lien takes effect

53.1(16)    The lien takes effect

(a) in relation to the debtor's interest in real property, when a certificate in respect of the lien is registered against specific lands of the debtor; and

(b) in relation to the debtor's personal property, when a financing statement in respect of the lien is registered in the Personal Property Registry.

Registration and enforcement of lien

53.1(17)    Subsections 28(6) to (14) of The Pension Benefits Act apply, with necessary changes, to the registration and enforcement of a lien arising under this section as if

(a) the references in those provisions to "employer" were references to the debtor under this section; and

(b) the references in those provisions to "the superintendent" were references to the director under this Act.

S.M. 2002, c. 33, s. 42; S.M. 2013, c. 9, s. 25.

OFFENCES AND PENALTIES

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.

S.M. 2002, c. 33, s. 44.

Penalty

55(1)       A person guilty of an offence is liable

(a) for a first offence to a fine of not more than $250,000. and, in the case of a continuing offence to a further fine not exceeding $25,000. for each day during which the offence continues; and

(b) for a second or subsequent offence to a fine of not more than $500,000. and, in the case of a continuing offence to a further fine not exceeding $50,000. for each day during which the offence continues.

55(2)       [Repealed] S.M. 2002, c. 33, s. 45.

Additional penalty

55(3)       Where a person is convicted for an offence under this Act, in addition to the penalties set out in subsection (1), he may be imprisoned for a term not exceeding six months.

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.

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.

S.M. 1997, c. 32, s. 2; S.M. 2002, c. 33, s. 45; S.M. 2010, c. 3, s. 2.

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.

S.M. 2002, c. 33, s. 45.

Offences by directors, etc., of corporations

56          Where a corporation commits an offence under this Act, any officer, director or agent of the corporation, who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable, on summary conviction, to the penalty provided for the offence.

Onus

57(1)       In any proceedings for an offence under any of the provisions of this Act or regulations consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

Person deemed to be employer

57(2)       Where a person is charged as an employer in respect of an offence under this Act he shall be deemed to be an employer within the meaning of this Act unless it is otherwise proven.

Application of subsection (1)

57(3)       Subsection (1) applies with such modifications as the circumstances require to any appeal involving an improvement order or a stop work order.

S.M. 2002, c. 33, s. 46.

Laying of information

58          Any person may lay an information in respect of any offence or alleged offence against this Act or the regulations.

59          [Repealed]

S.M. 2002, c. 33, s. 47.

 

 


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