Vol. 139, No. 25 — December 14, 2005

Registration
SOR/2005-401 November 28, 2005

CANADA LABOUR CODE

Regulations Amending the Canada Occupational Health and Safety Regulations

P.C. 2005-2226 November 28, 2005

Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to sections 125 (see footnote a), 125.1 (see footnote b), 126 (see footnote c) and 157 (see footnote d) of the Canada Labour Code, hereby makes the annexed Regulations Amending the Canada Occupational Health and Safety Regulations.

REGULATIONS AMENDING THE CANADA OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

AMENDMENTS

1. Subsection 15.10(2) of the Canada Occupational Health and Safety Regulations (see footnote 1) is replaced by the following:

(2) The report shall be in the form set out in Schedule II to this Part, contain the information required by that form and be accompanied by a copy of any report made in accordance with subsection 19.8(1).

2. The Regulations are amended by adding the following after Schedule II to Part XVIII:

PART XIX

HAZARD PREVENTION PROGRAM

Hazard Prevention Program

19.1 (1) The employer shall, in consultation with and with the participation of the policy committee, or, if there is no policy committee, the work place committee or the health and safety representative, develop, implement and monitor a program for the prevention of hazards in the work place that is appropriate to the size of the work place and the nature of the hazards and that includes the following components:

(a) an implementation plan;

(b) a hazard identification and assessment methodology;

(c) hazard identification and assessment;

(d) preventive measures;

(e) employee education; and

(f) a program evaluation.

(2) Subsection (1) applies in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity.

Implementation Plan

19.2 The employer shall

(a) develop an implementation plan that specifies the time frame for each phase of the development and implementation of the prevention program;

(b) monitor the progress of the implementation of the preventive measures; and

(c) review the time frame of the implementation plan regularly and, as necessary, revise it.

Hazard Identification and Assessment Methodology

19.3 (1) The employer shall develop a hazard identification and assessment methodology taking into account the following documents and information:

(a) any hazardous occurrence investigation reports;

(b) first aid records and minor injury records;

(c) work place health protection programs;

(d) any results of work place inspections;

(e) any employee reports made under paragraph 126(1)(g) or (h) of the Act or under section 15.3;

(f) any government or employer reports, studies and tests concerning the health and safety of employees;

(g) any reports made under the Safety and Health Committees and Representatives Regulations;

(h) the record of hazardous substances; and

(i) any other relevant information.

(2) The hazard identification and assessment methodology shall include

(a) the steps and time frame for identifying and assessing the hazards;

(b) the keeping of a record of the hazards; and

(c) a time frame for reviewing and, if necessary, revising the methodology.

Hazard Identification and Assessment

19.4 The employer shall identify and assess the hazards in the work place in accordance with the methodology developed under section 19.3 taking into account

(a) the nature of the hazard;

(b) the employees' level of exposure to the hazard;

(c) the frequency and duration of employees' exposure to the hazard;

(d) the effects, real or apprehended, of the exposure on the health and safety of employees;

(e) the preventive measures in place to address the hazard;

(f) any employee reports made under paragraph 126(1)(g) or (h) of the Act or under section 15.3; and

(g) any other relevant information.

Preventive Measures

19.5 (1) The employer shall, in order to address identified and assessed hazards, take preventive measures to address the assessed hazard in the following order of priority:

(a) the elimination of the hazard;

(b) the reduction of the hazard, including isolating it;

(c) the provision of personal protective equipment, clothing, devices or materials; and

(d) administrative procedures.

(2) As part of the preventive measures, the employer shall develop and implement a preventive maintenance program in order to avoid failures that could result in a hazard to employees.

(3) The employer shall ensure that any preventive measure shall not in itself create a hazard and shall take into account the effects on the work place.

(4) The preventive measures shall include steps to address newly identified hazards in an expeditious manner.

Employee Education

19.6 (1) The employer shall provide health and safety education to each employee which shall include the following:

(a) the hazard prevention program implemented in accordance with this Part to prevent hazards applicable to the employee, including the hazard identification and assessment methodology and the preventive measures taken by the employer;

(b) the nature of the work place and the hazards associated with it;

(c) the employee's duty to report under paragraphs 126(1)(g) and (h) of the Act and under section 15.3; and

(d) an overview of the Act and these Regulations.

(2) The employer shall provide education to an employee

(a) whenever new hazard information in respect of a hazard in the work place becomes available to the employer; and

(b) shortly before the employee is assigned a new activity or exposed to a new hazard.

(3) The employer shall review the employee education program, and, if necessary, revise it

(a) at least every three years;

(b) whenever there is a change in conditions in respect of the hazards; and

(c) whenever new hazard information in respect of a hazard in the work place becomes available to the employer.

(4) Each time education is provided to an employee, the employee shall acknowledge in writing that they received it, and the employer shall acknowledge in writing that they provided it.

(5) The employer shall keep, in paper or computerized form, records of the education provided to each employee, which shall be kept for a period of two years after the employee ceases to be exposed to a hazard.

Program Evaluation

19.7 (1) The employer shall evaluate the effectiveness of the hazard prevention program and, if necessary, revise it

(a) at least every three years;

(b) whenever there is a change in conditions in respect of the hazards; and

(c) whenever new hazard information in respect of a hazard in the work place becomes available to the employer.

(2) The evaluation of the effectiveness of the prevention program shall be based on the following documents and information:

(a) conditions related to the work place and the activities of the employees;

(b) any work place inspection reports;

(c) any hazardous occurrence investigation reports;

(d) any safety audits;

(e) first aid records and any injury statistics;

(f) any observations of the policy and work place committees, or the health and safety representative, on the effectiveness of the prevention program; and

(g) any other relevant information.

Reports and Records

19.8 (1) If a program evaluation has been conducted under section 19.7, the employer shall prepare a program evaluation report and submit a copy of it to the Minister as part of the employer's annual hazardous occurrence report referred to in subsection 15.10(1).

(2) The employer shall keep readily available every program evaluation report for six years after the date of the report.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The new Hazard Prevention Program Regulations form Part XIX of the Canada Occupational Health and Safety (COHS) Regulations, which are made pursuant to Part II of the Canada Labour Code (Code), the purpose of which is to prevent accidents and injury to health arising out of, linked with, or occurring in the course of employment in the federal jurisdiction.

The impetus for these new regulations is a provision in the amendments to the Code, requiring federally regulated employers to develop a prescribed program for the prevention of hazards in the work place. Although Bill C-97 died on the Order Paper, the provision relating to the development of a prevention program was maintained in a subsequent Bill (C-12), which came into force on September 30, 2000.

Before Bill C-12, there was no clear requirement for the employer to implement a program to prevent accidents and injuries in the work place, although the purpose of the Code is to prevent them. The employer will now have to analyze the work environment to identify what could cause an unsafe condition and implement measures to prevent this from occurring.

Following the coming into force of Bill C-12, the Review Committee for the Technical Revision of the COHS Regulations (Regulatory Review Committee) at Human Resources and Skills Development Canada (HRSDC) directed that a working group be formed to determine the best course of action. The tripartite working group, comprised of employer, employee and government representatives, examined various alternatives, including regulatory and non-regulatory options. A consensus was reached to develop performance-based, all encompassing Hazard Prevention Program Regulations to capture any areas where there could be a void.

The new Hazard Prevention Program Regulations include requirements relating to hazard identification, assessment and control as well as the education of employees. They also introduce a requirement for employers to submit, at least every three years, an evaluation report of effectiveness to the Minister of Labour. This will be part of the employer's annual hazardous occurrence report required under Part XV of the COHS Regulations.

Alternatives

The only alternative was to maintain the status quo. However, it was found that even though there are requirements for the prevention of specific hazards throughout the existing COHS Regulations, they did not sufficiently ensure the protection of employees against all types of hazards. The intent of the amendments to the Code, with respect to prescribing a program for the prevention of hazards, was to enable the making of a regulation that was all encompassing.

It is also important to emphasize that the amendments to the Code that came into force on September 30, 2000 resulted in the increased responsibility for work place parties (employers and employees) to address occupational health and safety issues jointly in a more efficient and effective manner. This is achieved by involving work place committees and health and safety representatives in the resolution process of these issues. Consequently, work place parties work together to ensure a healthy and safe working environment for all employees. The establishment of a prevention program suited to the needs of individual work places was, therefore, recognized as an essential tool to ensure that these objectives are attained.

Benefits and Costs

The anticipated effects of the new regulations are described in detail in the July 3, 2002 report entitled Cost-Benefit Analysis for the Regulation on Prevention Programs. The complete report is available, on request, from the person listed in the "Contact" section of this document.

Principal Benefits

The main benefit anticipated from these Regulations is the reduction or elimination of accidental injury, illness, and mortality in work places of employers under federal jurisdiction.

The direct economic benefits of regulations are realized mainly in the advantage to the Canadian economy as a result of the lowered risk of injury or mortality following the introduction of regulations. There are also indirect benefits, which are the avoidance of various economic losses generated by occupational illness and accidents. Among the indirect benefits from health and safety regulations would be, for example, an improvement in labour relations and in workers' morale, and saving the overtime cost of work not completed by injured or deceased workers.

Principal Costs

It is anticipated that the principal costs to the Canadian economy from the introduction of the Hazard Prevention Program Regulations will be the human resource cost for employers to document and administrate their respective programs, plus an additional cost factor deriving from new safety equipment purchases and staff training.

Summary of Economic Benefits and Costs

Ongoing costs and benefits in each industry under Canadian federal jurisdiction were estimated and evaluated according to three numerical scenarios - the most pessimistic, the most optimistic, and the middle-range of these two.

The principal costs were estimated as staff resource time (person-days per 1,000 employees) and as equipment/staff training expenses (percentage of the average wage).

The principal benefits were expressed and shadow-priced as a range of foreseeable percentage reductions in disabling injury rates.

In order to cover the nuances in the variations of the labour economy, every one of these estimation elements were further broken down by industry type and size of enterprise.

The definitive scenario (as a potential realistic outcome) is based on the middle-range values between the two extreme scenarios, as follows:

Assumptions

• Beginning in 2003, for a period of 20 years;
• For an estimated 1.2 million workers under federal jurisdiction;
• Compliance Rate at 90%;
• Social Discount Rate calculated at 10%;
• Including indirect costs and with Indirect-to-Direct-Cost Ratio taken at 1:1;
• The net effectiveness of the Hazard Prevention Program Regulations is estimated at over and above the level of safety and security measures currently in place.

Expressed in 1998 constant dollars:

Total Benefits $333,684,375

Total Costs $148,054,774

Net Present Value $185,629,601

Benefits exceeding costs.

Benefit-to-Cost Ratio 2.3 to 1

For a detailed methodology of this cost-benefit analysis, please refer to the above-mentioned report.

Consultation

In 1986, the Labour Branch (formerly Labour Canada) established a Regulatory Review Committee for the technical revision of federal occupational health and safety legislation. This Committee consists of an equal membership drawn from organized labour and employer organizations in the federal jurisdiction.

In 1997, the Regulatory Review Committee appointed a Working Group to review the positions and concerns of labour, management and the Labour Program regarding a proposal to develop new regulations relating to Hazard Prevention Program Regulations, to be added to the COHS Regulations. The members of the Working Group, representing a wide range of industrial sectors, were appointed by the Canadian Labour Congress (CLC) and by the Federally Regulated Employers — Transportation and Communication organization (FETCO). A complete list of members is available upon request.

The development of the Hazard Prevention Program Regulations was conducted between June 1998 and March 2001 for a total of twelve meetings.

The Hazard Prevention Program Regulations were published in the Canada Gazette, Part I, on November 27, 2004. People who wished to submit comments about the proposed regulations could do so within seventy-five days of publication.

Comments were received from employers, unions and Labour Program employees. The comments submitted by employers were made in relation to the administration of the Hazard Prevention Program. Comments from unions were based on the role of policy committees, work place committees, and the role of a health and safety representative in the development and implementation of a Hazard Prevention Program.

Comments from the unions who participated in the working group process, expressed their concerns regarding the drafting of the regulation as published in the Canada Gazette, Part I. They were of the opinion that the draft of the regulation did not meet the intent of the final report of the working group.

The comments submitted by the Labour Program employees were regarding the terminology used in the drafting of the regulation and the lack of uniformity of language in the English and French versions.

The Labour Program carried out the following action in order to respond to the comments received: a response in writing was prepared for some employers (Canadian National (CN) and Canadian Pacific Railways (CP Rail)); a meeting was held with the Royal Canadian Mounted Police, as well as with the union representatives. Further written explanations were sent to the unions following that meeting. The purpose of the meetings and the written correspondence was to address the submitted comments by explaining the scope and the implications of the text published in the Canada Gazette, Part I.

Subsequent to the comments and responses, two minor changes were made to the proposed regulations. In section 19.5(4) of the French version the word "donner" was replaced by "comprendre" and in section 19.6(5), the words "d'accomplir une tâche ou" were deleted. These changes were made in order to ensure that the English and French versions were consistent.

Compliance and Enforcement

The purpose of the Labour Program's compliance policy is twofold. First, it provides employers and employees with a better understanding of the mechanism used to achieve compliance with the Code. Secondly, it outlines the steps that the Labour Program will take to ensure compliance with the Code.

Compliance with occupational health and safety requirements is monitored through a number of techniques.

By consulting with employer and employee groups on the development of the legislation and by promoting public information and education programs, the Department aims to ensure that the Code and regulations are understood and accepted by all parties.

Policy and work place health and safety committees are the primary mechanism through which employers and employees work together to solve job-related health and safety problems. Health and safety officers assist the industry in establishing and implementing policy and work place health and safety committees and related programs.

The statutory powers of health and safety officers allow them to enter a work place and perform various activities to enforce compliance with the Code and the regulations. For example, health and safety officers may conduct safety audits and inspections. They may also investigate the circumstances surrounding the report of a contravention, work accident, refusal to work, or hazardous occurrence.

An Assurance of Voluntary Compliance (AVC) may be received by the health and safety officer from the employer or employee. The AVC is a written commitment to a health and safety officer that a contravention will be corrected within a specified time. Failure to complete the corrective actions specified in the AVC will lead to the issuing of a Direction.

A Direction is issued by a health and safety officer whenever a dangerous condition exists and when an AVC is not obtainable or has not been fulfilled. A direction is a written notice directing the employer or employee to terminate and correct a contravention within a specified time.

If non-compliance continues, prosecution is initiated. Offences can lead to imprisonment. The maximum penalty for offences is, on summary conviction, a fine of not more than $1,000,000, or on conviction on indictment, imprisonment for up to two years and/or a fine of not more than $1,000,000.

Contact

Frédérick Dupuis
Program Advisor
Occupational Health and Safety Policy
165 Hôtel de Ville Street, 10th Floor
Place du Portage - Phase II
Gatineau, Quebec
K1A 0J2
Telephone: (819) 994-6860
FAX: (819) 953-4830
E-mail: frederick.dupuis@hrsdc-rhdcc.gc.ca

Footnote a

S.C. 2000, c. 20, s. 5

Footnote b

S.C. 2000, c. 20, s. 6

Footnote c

S.C. 2000, c. 20, s. 8

Footnote d

S.C. 2000, c. 20, s. 20

Footnote 1

SOR/86-304; SOR/2002-208

NOTICE:
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