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Bill C-97

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RECOMMENDATION

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act to amend the Canada Labour Code (Part II) in respect of occupational health and safety and to make consequential amendments to other Acts''.

SUMMARY

This enactment implements reforms to the occupational health and safety provisions of Part II of the Canada Labour Code. A realignment in responsibilities for work place health and safety will place a greater onus on employers and employees to work together to ensure a healthy and safe working environment. The reforms will modernize existing requirements and provide a more favourable regulatory framework for the shift in onus to occur while, at the same time, requiring less government intervention. Finally, the reforms will ensure that work place health and safety concerns, on the whole, are identified and resolved in a more flexible, timely and cost-effective manner.

The key components of the enactment include:

    (a) the creation of an internal resolution process to assist parties in the work place in resolving problems in a more independent and timely manner;

    (b) the enhancement of the powers of work place health and safety committees to allow them to identify and resolve problems as they arise, without requiring the previous level of intervention from government officials;

    (c) the creation of corporate policy health and safety committees for employers with more than three hundred employees to ensure that health and safety is addressed at the corporate level;

    (d) the requirement for employers to establish and maintain a prevention program specific to occupational health and safety;

    (e) the enhancement of the powers of federal enforcement officers to improve their efficiency and effectiveness;

    (f) the streamlining of the appeal process for the review of directions and decisions of federal enforcement officers; and

    (g) the updating of fines and terminology to reflect current practice in other Canadian jurisdictions.

EXPLANATORY NOTES

Canada Labour Code

Clause 1: The heading of Part II reads as follows:

OCCUPATIONAL SAFETY AND HEALTH

Clause 2: (1) The definitions ``regional safety officer'', ``safety and health committee'', ``safety and health representative'' and ``safety officer'' in subsection 122(1) read as follows:

``regional safety officer'' means a person designated as a regional safety officer pursuant to subsection 140(1);

``safety and health committee'' means a committee established pursuant to section 135;

``safety and health representative'' means a person appointed as a safety and health representative pursuant to section 136;

``safety officer'' means a person designated as a safety officer pursuant to subsection 140(1) and includes a regional safety officer;

(2) The definition ``hazardous substance'' in subsection 122(1) reads as follows:

``hazardous substance'' includes a controlled product and a chemical, biological or physical agent that, by reason of a property that the agent possesses, is hazardous to the safety or health of a person exposed to it;

(3) The definition ``danger'' in subsection 122(1) reads as follows:

``danger'' means any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition can be corrected;

(4) The definition ``prescribe'' in subsection 122(1) reads as follows:

``prescribe'' means prescribe by regulation of the Governor in Council;

(5) New.

(6) New.

Clause 3: New.

Clause 4: Subsection 123(2) reads as follows:

(2) Except as otherwise expressly provided in any other Act of Parliament, this Part does not apply to or in respect of employment in a portion of the public service of Canada specified from time to time in Schedule I to the Public Service Staff Relations Act.

Clause 5: Sections 124 and 125 read as follows:

124. Every employer shall ensure that the safety and health at work of every person employed by the employer is protected.

125. Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer,

    (a) ensure that all permanent and temporary buildings and structures meet the prescribed standards;

    (b) install guards, guard-rails, barricades and fences in accordance with prescribed standards;

    (c) investigate, record and report in the manner and to the authorities as prescribed all accidents, occupational diseases and other hazardous occurrences known to the employer;

    (d) post at a place accessible to every employee and at every place directed by a safety officer,

      (i) a copy of this Part,

      (ii) a statement of the employer's general policy concerning the safety and health at work of employees, and

      (iii) such other printed material related to safety and health as may be directed by a safety officer or as is prescribed;

    (e) keep and maintain in prescribed form and manner prescribed safety and health records;

    (f) provide such first-aid facilities and health services as are prescribed;

    (g) provide prescribed sanitary and personal facilities;

    (h) provide, in accordance with prescribed standards, potable water;

    (i) ensure that the vehicles and mobile equipment used by the employees in the course of their employment meet prescribed safety standards;

    (j) provide every person granted access to the work place by the employer with such safety materials, equipment, devices and clothing as are prescribed;

    (k) ensure that the use, operation and maintenance of

      (i) every boiler and pressure vessel,

      (ii) every escalator, elevator and other device for moving passengers or freight,

      (iii) all equipment for the generation, distribution or use of electricity, and

      (iv) all gas or oil burning equipment or other heat generating equipment

    is in accordance with prescribed standards;

    (l) and (m) [Repealed, R.S., 1985, c. 24 (3rd Supp.), s. 4]

    (n) ensure that the levels of ventilation, lighting, temperature, humidity, sound and vibration are in accordance with prescribed standards;

    (o) comply with such standards as are prescribed relating to fire safety and emergency measures;

    (p) ensure, in the manner prescribed, that employees have safe entry to, exit from and occupancy of the work place;

    (q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure the safety and health at work of that employee;

    (r) maintain all installed guards, guard-rails, barricades and fences in accordance with prescribed standards;

    (s) ensure that each employee is made aware of every known or foreseeable safety or health hazard in the area where that employee works;

    (t) ensure that the machinery, equipment and tools used by the employees in the course of their employment meet prescribed safety standards and are safe under all conditions of their intended use;

    (u) adopt and implement prescribed safety codes and safety standards;

    (v) ensure that every person granted access to the work place by the employer is familiar with and uses in the prescribed circumstances and manner all prescribed safety materials, equipment, devices and clothing; and

    (w) comply with every oral or written direction given to the employer by a safety officer concerning the safety and health of employees.

Clause 6: Section 125.1 reads as follows:

125.1 Without restricting the generality of section 124 or limiting the duties of an employer under section 125 but subject to such exceptions as may be prescribed, every employer shall, in respect of every work place controlled by the employer,

    (a) ensure that concentrations of hazardous substances in the work place are controlled in accordance with prescribed standards;

    (b) ensure that all hazardous substances in the work place are stored and handled in the manner prescribed;

    (c) ensure that all hazardous substances in the work place, other than controlled products, are identified in the manner prescribed;

    (d) subject to the Hazardous Materials Information Review Act, ensure that each controlled product in the work place or each container in the work place in which a controlled product is contained has applied to it a label that discloses prescribed information and has displayed on it, in the manner prescribed, all applicable prescribed hazard symbols; and

    (e) subject to the Hazardous Materials Information Review Act, make available, in the manner prescribed, to each of his employees a material safety data sheet, with respect to each controlled product in the work place, that discloses the following information, namely,

      (i) where the controlled product is a pure substance, the chemical identity of the controlled product and, where the controlled product is not a pure substance, the chemical identity of any ingredient thereof that is a controlled product and the concentration of that ingredient,

      (ii) where the controlled product contains an ingredient that is included in the Ingredient Disclosure List and the ingredient is in a concentration that is equal to or greater than the concentration specified in the Ingredient Disclosure List for that ingredient, the chemical identity and concentration of that ingredient,

      (iii) the chemical identity of any ingredient thereof that the employer believes on reasonable grounds may be harmful to an employee and the concentration of that ingredient,

      (iv) the chemical identity of any ingredient thereof the toxicological properties of which are not known to the employer and the concentration of that ingredient, and

      (v) such other information with respect to the controlled product as may be prescribed.

Clause 7: Subsection 125.2(1) reads as follows:

125.2 (1) An employer shall, in respect of any controlled product in a work place controlled by him, provide, as soon as is practicable in the circumstances, any information referred to in paragraph 125.1(e) that is in the employer's possession to any physician or other prescribed medical professional who requests that information for the purpose of making a medical diagnosis of, or rendering medical treatment to, an employee in an emergency.

Clause 8: Section 126 reads as follows:

126. (1) While at work, every employee shall

    (a) use such safety materials, equipment, devices and clothing as are intended for the employee's protection and furnished to the employee by the employer or as are prescribed;

    (b) follow prescribed procedures with respect to the safety and health of employees;

    (c) take all reasonable and necessary precautions to ensure the safety and health of the employee, the other employees and any person likely to be affected by the employee's acts or omissions;

    (d) comply with all instructions from the employer concerning the safety and health of employees;

    (e) cooperate with any person exercising a duty imposed by this Part or any regulations made thereunder;

    (f) cooperate with the safety and health committee established for the work place where the employee is employed or, if there is no such committee, with the safety and health representative, if any, appointed for that work place;

    (g) report to the employer any thing or circumstance in a work place that is likely to be hazardous to the safety or health of the employee, the other employees or other persons granted access to the work place by the employer;

    (h) report in the manner prescribed every accident or other occurrence arising in the course of or in connection with the employee's work that has caused injury to the employee or to any other person; and

    (i) comply with every oral or written direction of a safety officer concerning the safety and health of employees.

(2) Nothing in subsection (1) relieves an employer from any duty imposed on the employer under this Part.

Clause 9: The relevant portion of subsection 127(1) reads as follows:

127. (1) Subject to subsection (2), where an employee is killed or seriously injured in a work place, no person shall, unless authorized to do so by a safety officer, remove or in any way interfere with or disturb any wreckage, article or thing related to the incident except to the extent necessary to

Clause 10: Sections 127.1, 128.1, 134.1 and 135.1 are new. Sections 128 to 137 read as follows:

128. (1) Subject to this section, where an employee while at work has reasonable cause to believe that

    (a) the use or operation of a machine or thing constitutes a danger to the employee or to another employee, or

    (b) a condition exists in any place that constitutes a danger to the employee,

the employee may refuse to use or operate the machine or thing or to work in that place.

(2) An employee may not pursuant to this section refuse to use or operate a machine or thing or to work in a place where

    (a) the refusal puts the life, health or safety of another person directly in danger; or

    (b) the danger referred to in subsection (1) is inherent in the employee's work or is a normal condition of employment.

(3) Where an employee on a ship or an aircraft that is in operation has reasonable cause to believe that

    (a) the use or operation of a machine or thing on the ship or aircraft constitutes a danger to the employee or to another employee, or

    (b) a condition exists in a place on the ship or aircraft that constitutes a danger to the employee,

the employee shall forthwith notify the person in charge of the ship or aircraft of the circumstances of the danger and the person in charge shall, as soon as practicable thereafter, having regard to the safe operation of the ship or aircraft, decide whether or not the employee may discontinue the use or operation of the machine or thing or to work in that place and shall inform the employee accordingly.

(4) An employee who, pursuant to subsection (3), is informed that he may not discontinue the use or operation of a machine or thing or to work in a place shall not, while the ship or aircraft on which the employee is employed is in operation, refuse pursuant to this section to operate the machine or thing or to work in that place.

(5) For the purposes of subsections (3) and (4),

    (a) a ship is in operation from the time it casts off from a wharf in any Canadian or foreign port until it is next secured alongside a wharf in Canada; and

    (b) an aircraft is in operation from the time it first moves under its own power for the purpose of taking off from any Canadian or foreign place of departure until it comes to rest at the end of its flight to its first destination in Canada.

(6) Where an employee refuses to use or operate a machine or thing or to work in a place pursuant to subsection (1), or is prevented from acting in accordance with that subsection pursuant to subsection (4), the employee shall forthwith report the circumstances of the matter to his employer and to

    (a) a member of the safety and health committee, if any, established for the work place affected; or

    (b) the safety and health representative, if any, appointed for the work place affected.

(7) An employer shall forthwith on receipt of a report under subsection (6) investigate the report in the presence of the employee who made the report and in the presence of

    (a) at least one member of the safety and health committee, if any, to which the report was made under subsection (6) who does not exercise managerial functions;

    (b) the safety and health representative, if any; or

    (c) where no safety and health committee or safety and health representative has been established or appointed for the work place affected, at least one person selected by the employee.

(8) Where an employer disputes a report made to the employer by an employee pursuant to subsection (6) or takes steps to make the machine or thing or the place in respect of which the report was made safe, and the employee has reasonable cause to believe that

    (a) the use or operation of the machine or thing continues to constitute a danger to the employee or to another employee, or

    (b) a condition continues to exist in the place that constitutes a danger to the employee,

the employee may continue to refuse to use or operate the machine or thing or to work in that place.

129. (1) Where an employee continues to refuse to use or operate a machine or thing or to work in a place pursuant to subsection 128(8), the employer and the employee shall each forthwith notify a safety officer, and the safety officer shall forthwith, on receipt of either notification, investigate or cause another safety officer to investigate the matter in the presence of the employer and the employee or the employee's representative.

(2) A safety officer shall, on completion of an investigation made pursuant to subsection (1), decide whether or not

    (a) the use or operation of the machine or thing in respect of which the investigation was made constitutes a danger to any employee, or

    (b) a condition exists in the place in respect of which the investigation was made that constitutes a danger to the employee referred to in subsection (1),

and he shall forthwith notify the employer and the employee of his decision.

(3) Prior to the investigation and decision of a safety officer under this section, the employer may require that the employee concerned remain at a safe location near the place in respect of which the investigation is being made or assign the employee reasonable alternate work, and shall not assign any other employee to use or operate the machine or thing or to work in that place unless that other employee has been advised of the refusal of the employee concerned.

(4) Where a safety officer decides that the use or operation of a machine or thing constitutes a danger to an employee or that a condition exists in a place that constitutes a danger to an employee, the officer shall give such direction under subsection 145(2) as the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing or to work in that place until the direction is complied with or until it is varied or rescinded under this Part.

(5) Where a safety officer decides that the use or operation of a machine or thing does not constitute a danger to an employee or that a condition does not exist in a place that constitutes a danger to an employee, an employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing or to work in that place, but the employee may, by notice in writing given within seven days of receiving notice of the decision of a safety officer, require the safety officer to refer his decision to the Board, and thereupon the safety officer shall refer the decision to the Board.

130. (1) Where a decision of a safety officer is referred to the Board pursuant to subsection 129(5), the Board shall, without delay and in a summary way, inquire into the circumstances of the decision and the reasons therefor and may

    (a) confirm the decision; or

    (b) give any direction that it considers appropriate in respect of the machine, thing or place in respect of which the decision was made that a safety officer is required or entitled to give under subsection 145(2).

(2) Where the Board gives a direction under subsection (1), it shall cause to be affixed to or near the machine, thing or place in respect of which the direction is given a notice in the form approved by the Minister, and no person shall remove the notice unless authorized by a safety officer or the Board.

(3) Where the Board directs, pursuant to subsection (1), that a machine, thing or place not be used until its directions are complied with, the employer shall discontinue the use thereof, and no person shall use such machine, thing or place until the directions are complied with, but nothing in this subsection prevents the doing of anything necessary for the proper compliance therewith.

131. The Minister may, on the joint application of the parties to a collective agreement if the Minister is satisfied that the agreement contains provisions that are at least as effective as those under sections 128 to 130 in protecting the employees to whom the agreement relates from danger to their safety or health, exclude the employees from the application of those sections for the period during which the agreement remains in force.

132. The fact that an employer or employee has complied with or failed to comply with any of the provisions of this Part shall not be construed as affecting any right of an employee to compensation under any statute relating to compensation for employment injury, or as affecting any liability or obligation of any employer or employee under any such statute.

Employees' Right to Complain

133. (1) Where an employee alleges that an employer has taken action against the employee in contravention of paragraph 147(a) because the employee has acted in accordance with section 128 or 129, the employee may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

(2) A complaint made pursuant to subsection (1) shall be made to the Board not later than ninety days from the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.

(3) An employee may not make a complaint under this section if the employee has failed to comply with subsection 128(6) or 129(1) in relation to the matter that is the subject-matter of the complaint.

(4) Notwithstanding any law or agreement to the contrary, a complaint referred to in subsection (1) may not be referred by an employee to arbitration.

(5) On receipt of a complaint made under subsection (1), the Board may assist the parties to the complaint to settle the complaint and shall, where it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint.

(6) A complaint made pursuant to subsection (1) in respect of an alleged contravention of paragraph 147(a) by an employer is itself evidence that that contravention actually occurred and, if any party to the complaint proceedings alleges that the contravention did not occur, the burden of proof thereof is on that party.

134. Where, under subsection 133(5), the Board determines that an employer has contravened paragraph 147(a), the Board may, by order, require the employer to cease contravening that provision and may, where applicable, by order, require the employer to

    (a) permit any employee who has been affected by the contravention to return to the duties of the employee's employment;

    (b) reinstate any former employee affected by the contravention;

    (c) pay to any employee or former employee affected by the contravention compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to that employee or former employee; and

    (d) rescind any disciplinary action taken in respect of and pay compensation to any employee affected by the contravention, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer.

Safety and Health Committees and Representatives

135. (1) Subject to this section, every employer shall, for each work place controlled by the employer at which twenty or more employees are normally employed, establish a safety and health committee consisting of at least two persons one of whom is an employee or, where the committee consists of more than two persons, at least half of whom are employees who

    (a) do not exercise managerial functions; and

    (b) subject to any regulations made under subsection (11), have been selected by the trade union, if any, representing the employees and by any employees not represented by a trade union.

(2) An employer is not required to establish a safety and health committee under subsection (1) for a work place that is on board a ship in respect of employees whose base is the ship.

(3) Where the Minister is satisfied that the nature of work being done by employees at a work place is relatively free from risks to safety and health, the Minister may, by order, on such terms and conditions as are specified therein, exempt the employer from the requirements of subsection (1) in respect of that work place.

(4) Where, pursuant to a collective agreement or any other agreement between an employer and his employees, a committee of persons has been appointed in respect of a work place controlled by an employer and the committee has, in the opinion of a safety officer, a responsibility for matters relating to safety and health in the work place to such an extent that a safety and health committee established under subsection (1) for that work place would not be necessary,

    (a) the safety officer may, by order, exempt the employer from the requirements of subsection (1) in respect of that work place;

    (b) the committee of persons that has been appointed for the work place has, in addition to any rights, functions, powers, privileges and obligations under the agreement, the same rights, functions, powers, privileges and obligations as a safety and health committee under this Part; and

    (c) the committee of persons so appointed shall, for the purposes of this Part, be deemed to be a safety and health committee established under subsection (1) and all rights and obligations of employers and employees under this Part and the provisions of this Part respecting a safety and health committee apply, with such modifications as the circumstances require, in respect of the committee of persons so appointed.

(5) An employer shall post and keep posted, in a conspicuous place or places where they are likely to come to the attention of the employer's employees, the names and work locations of all the members of the safety and health committee established for the work place controlled by the employer.

(6) A safety and health committee

    (a) shall receive, consider and expeditiously dispose of complaints relating to the safety and health of the employees represented by the committee;

    (b) shall maintain records pertaining to the disposition of complaints relating to the safety and health of the employees represented by the committee;

    (c) shall cooperate with any occupational health service established to serve the work place;

    (d) may establish and promote safety and health programs for the education of the employees represented by the committee;

    (e) shall participate in all inquiries and investigations pertaining to occupational safety and health including such consultations as may be necessary with persons who are professionally or technically qualified to advise the committee on those matters;

    (f) may develop, establish and maintain programs, measures and procedures for the protection or improvement of the safety and health of employees;

    (g) shall regularly monitor programs, measures and procedures related to the safety and health of employees;

    (h) shall ensure that adequate records are kept on work accidents, injuries and health hazards and shall regularly monitor data relating to those accidents, injuries and hazards;

    (i) shall cooperate with safety officers;

    (j) may request from an employer such information as the committee considers necessary to identify existing or potential hazards with respect to materials, processes or equipment in the work place; and

    (k) shall have full access to all government and employer reports relating to the safety and health of the employees represented by the committee but shall not have access to the medical records of any person except with the consent of that person.

(7) A safety and health committee shall keep accurate records of all matters that come before it pursuant to subsection (6) and shall keep minutes of its meetings and shall make those minutes and records available to a safety officer on the officer's request.

(8) A safety and health committee shall meet during regular working hours at least once each month and, where meetings are urgently required as a result of an emergency or other special circumstance, the committee shall meet as required whether or not during regular working hours.

(9) The members of a safety and health committee are entitled to such time from their work as is necessary to attend meetings or to carry out any of the other functions of a member of the committee, and any time spent by a member while carrying out any of the functions of a member of the committee shall, for the purpose of calculating wages owing to that member, be deemed to have been spent at work.

(10) No member of a safety and health committee is personally liable for anything done or omitted to be done by the member in good faith under the purported authority of this section or any regulations made under this section.

(11) The Governor in Council may make regulations

    (a) specifying the qualifications, terms of office and manner of selection of members of a safety and health committee;

    (b) specifying the time, place and frequency of regular meetings of a committee;

    (c) specifying the method of selecting officers of a committee and their terms of office;

    (d) establishing such procedures for the operation of a committee as the Governor in Council considers advisable;

    (e) requiring copies of minutes of committee meetings to be provided by and to such persons as the Governor in Council may prescribe; and

    (f) requiring a safety and health committee to submit an annual report of its activities to a specified person in the prescribed form within the prescribed time.

(12) Any regulation made pursuant to subsection (11) may be made applicable generally to all safety and health committees, or particularly to one or more committees or classes thereof.

(13) Subject to any regulations made pursuant to subsection (11), a safety and health committee may establish its own rules of procedure in respect of the terms of office, not exceeding two years, of its members, the time, place and frequency of regular meetings of the committee, and such procedures for its operation as it considers advisable.

136. (1) Every employer shall, for each work place controlled by the employer at which five or more employees are normally employed and for which no safety and health committee has been established, appoint the person selected pursuant to subsection (2) as the safety and health representative for that work place.

(2) The employees at a work place referred to in subsection (1) who do not exercise managerial functions shall, or where those employees are represented by a trade union, the trade union shall, in consultation with any employees who are not so represented and subject to any regulations under subsection (7), select from among those employees a person to be appointed as the safety and health representative of that work place and shall advise the employer in writing of the name of the person so selected.

(3) An employer shall post and keep posted, in a conspicuous place or places where they are likely to come to the attention of the employer's employees, the name and work location of the safety and health representative appointed for the work place controlled by the employer.

(4) A safety and health representative

    (a) shall receive, consider and expeditiously dispose of complaints relating to the safety and health of the employees represented by the representative;

    (b) shall participate in all inquiries and investigations pertaining to occupational safety and health, including such consultations as may be necessary with persons who are professionally or technically qualified to advise the representative on those matters;

    (c) shall regularly monitor programs, measures and procedures related to the safety and health of employees;

    (d) shall ensure that adequate records are kept on work accidents, injuries and health hazards and shall regularly monitor data relating to those accidents, injuries and hazards;

    (e) may request from an employer such information as the representative considers necessary to identify existing or potential hazards with respect to materials, processes or equipment in the work place; and

    (f) shall have full access to all government and employer reports relating to the safety and health of the employees represented by the representative but shall not have access to the medical records of any person except with the consent of that person.

(5) A safety and health representative is entitled to such time from the representative's work as is necessary to carry out the functions of a representative and any time spent by the representative while carrying out any of those functions shall, for the purpose of calculating wages owing to the representative, be deemed to have been spent at work.

(6) No safety and health representative is personally liable for anything done or omitted to be done by the representative in good faith under the purported authority of this section.

(7) The Governor in Council may make regulations specifying the qualifications, term of office and manner of selection of a safety and health representative.

137. Notwithstanding sections 135 and 136, where an employer controls more than one work place referred to in section 135 or 136 or the size or nature of the operations of the employer or the work place precludes the effective functioning of a single safety and health committee or safety and health representative, as the case may be, for those work places, the employer shall, subject to the approval of or in accordance with the direction of a safety officer, establish or appoint in accordance with section 135 or 136, as the case may require, a safety and health committee or safety and health representative for such of those work places as are specified in the approval or direction.

Clause 11: (1) Subsection 137.1(2.1) is new. Subsections 137.1(1) to (6) read as follows:

137.1 (1) There is hereby established a Coal Mining Safety Commission, in this section referred to as the ``Commission'', consisting of not more than five members to be appointed by the Minister to hold office during good behaviour.

(2) One member of the Commission shall be designated chairman of the Commission by the Minister and the others shall be equally representative of non-supervisory employees employed in coal mines and of the employers of those employees.

(3) The manner of selection of the members of the Commission, other than the chairman, and the term of office of the members of the Commission shall be such as may be prescribed.

(4) A quorum of the Commission consists of the chairman, one member representative of employees and one member representative of employers.

(5) No safety officer is eligible to be appointed to the Commission or to be designated for the purposes of subsection 137.2(1) or (2).

(6) The members of the Commission shall be paid such remuneration as may be fixed by the Governor in Council and, subject to the approval of the Treasury Board, such reasonable travel and living expenses as are incurred by them while carrying out their functions away from their ordinary place of residence.

Clause 12: (1) Subsection 137.2(1) reads as follows:

137.2 (1) The Commission or a person designated by the Commission for the purposes of this subsection may approve in writing, with or without modification, plans or procedures submitted in accordance with paragraph 125.3(1)(d).

(2) The relevant portion of subsection 137.2(2) reads as follows:

(2) On the application of an employer, the Commission or a person designated by the Commission for the purposes of this subsection may, where, in the opinion of the Commission or that person, protection of the safety and health of employees would not thereby be diminished,

(3) The relevant portion of subsection 137.2(3) reads as follows:

(3) On the application of an employer, the Commission may, where in its opinion protection of the safety and health of employees would not thereby be diminished, by order,

Clause 13: (1) Subsection 138(1.1) is new. Subsections 138(1) and (2) read as follows:

138. (1) The Minister may appoint committees of persons to assist or advise the Minister on any matter that the Minister considers advisable concerning occupational safety and health related to employment to which this Part applies.

(2) The Minister may cause an inquiry to be made into and concerning occupational safety and health in any employment to which this Part applies and may appoint one or more persons to hold the inquiry.

(2) Subsection 138(5) reads as follows:

(5) The Minister may publish the results of any research undertaken pursuant to subsection (4) and compile, prepare and disseminate data or information bearing on safety or health of employees obtained from that research or otherwise.

Clause 14: Sections 141.1, 143.1, 143.2, 145.1, 146.1 to 146.5 and 147.1 are new. Sections 139 to 148 and the heading before section 139 read as follows:

Advisory Council on Occupational Safety and Health

139. (1) There is hereby established a council to be called the Advisory Council on Occupational Safety and Health composed of not more than fourteen members appointed by the Governor in Council to hold office during pleasure.

(2) The membership of the Advisory Council shall consist of persons equally representative of management and labour and not more than two additional persons who are knowledgeable or concerned about occupational safety and health matters.

(3) The Governor in Council shall designate one of the members of the Advisory Council to be chairman and one to be vice-chairman.

(4) The members of the Advisory Council shall be paid such remuneration as may be fixed by the Governor in Council and are entitled, within such limits as may be established by the Treasury Board, to be paid such reasonable travel and living expenses as they incur in the course of their functions under this Act while absent from their ordinary places of residence.

(5) The Advisory Council may, subject to the approval of the Minister, make by-laws for the management of its internal affairs and generally for the conduct of its activities.

(6) The Advisory Council shall

    (a) provide advice to the Minister on matters that have been brought to its attention or referred to it concerning occupational safety and health related to employment to which this Part applies;

    (b) make recommendations to the Minister concerning the administration of this Part; and

    (c) annually report to the Minister on the activities of the Advisory Council during the year for which the report is made.

Safety Officers and Safety Services

140. (1) The Minister may designate any person as a regional safety officer or as a safety officer for the purposes of this Part.

(2) The Minister may, with the approval of the Governor in Council, enter into an agreement with any province or any provincial body specifying the terms and conditions under which a person employed by that province or provincial body may act as a safety officer for the purposes of this Part and, where such an agreement has been entered into, a person so employed and referred to in the agreement shall be deemed to be designated as a safety officer under subsection (1).

141. (1) A safety officer may, in the performance of the officer's duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may

    (a) conduct examinations, tests, inquiries and inspections or direct the employer to conduct them;

    (b) take or remove for analysis, samples of any material or substance or any biological, chemical or physical agent;

    (c) be accompanied and assisted by such persons and bring with him such equipment as the safety officer deems necessary to carry out his duties;

    (d) take photographs and make sketches;

    (e) direct the employer to ensure that any place or thing specified by the safety officer not be disturbed for a reasonable period of time pending an examination, test, inquiry or inspection in relation thereto;

    (f) direct the employer to produce documents and information relating to the safety and health of his employees or the safety of the work place and to permit the safety officer to examine and make copies of or extracts from those documents and that information; and

    (g) direct the employer to make or provide statements, in such form and manner as the safety officer may specify, respecting working conditions and material and equipment that affect the safety or health of employees.

(2) The Minister shall furnish every safety officer with a certificate of the officer's authority and on entering any work place a safety officer shall, if so required, produce the certificate to the person in charge of that work place.

142. The person in charge of any work place and every person employed at, or in connection with, that work place shall give a safety officer all reasonable assistance to enable the officer to carry out his duties under this Part.

143. No person shall obstruct or hinder, or make a false or misleading statement either orally or in writing to, a safety officer engaged in carrying out his duties under this Part.

144. (1) No safety officer or person who, as a member of a safety and health committee or as a safety and health representative, has assisted the safety officer in carrying out the officer's duties under this Part shall be required to give testimony in any civil suit with regard to information obtained by him in the discharge of his duties except with the written permission of the Minister.

(2) Subject to subsection (2.1), no safety officer who is admitted to any work place pursuant to the powers conferred on a safety officer by section 141 or person accompanying a safety officer therein shall disclose to any person any information obtained by him therein with regard to any secret process or trade secret, except for the purposes of this Part or as required by law.

(2.1) All information that, pursuant to the Hazardous Materials Information Review Act, an employer is exempt from disclosing under paragraph 125.1(d) or (e) or under paragraph 13(a) or (b) or 14(a) or (b) of the Hazardous Products Act and that is obtained, in a work place controlled by the employer, by a safety officer who is admitted to the work place, pursuant to the powers conferred by section 141 on a safety officer, or by a person accompanying a safety officer therein is privileged and, notwithstanding the Access to Information Act or any other Act or law, shall not be disclosed to any other person except for the purposes of this Part.

(3) No person shall, except for the purposes of this Part or for the purposes of a prosecution under this Part, publish or disclose the results of any analysis, examination, testing, inquiry or sampling made or taken by or at the request of a safety officer pursuant to section 141.

(4) No person to whom information obtained pursuant to section 141 is communicated in confidence shall divulge the name of the informant to any person except for the purposes of this Part or is competent or compellable to divulge the name of the informant before any court or other tribunal.

(5) A safety officer is not personally liable for anything done or omitted to be done by the officer in good faith under the authority or purported authority of this Part.

Special Safety Measures

145. (1) Where a safety officer is of the opinion that any provision of this Part is being contravened, the officer may direct the employer or employee concerned to terminate the contravention within such time as the officer may specify and the officer shall, if requested by the employer or employee concerned, confirm the direction in writing if the direction was given orally.

(2) Where a safety officer considers that the use or operation of a machine or thing or a condition in any place constitutes a danger to an employee while at work,

    (a) the safety officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer immediately or within such period of time as the officer specifies

      (i) to take measures for guarding the source of danger, or

      (ii) to protect any person from the danger; and

    (b) the safety officer may, if the officer considers that the danger cannot otherwise be guarded or protected against immediately, issue a direction in writing to the employer directing that the place, machine or thing in respect of which the direction is made shall not be used or operated until the officer's directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.

(3) Where a safety officer issues a direction under paragraph (2)(b), the officer shall affix to or near the place, machine or thing in respect of which the direction is made, a notice in such form and containing such information as the Minister may specify, and no person shall remove the notice unless authorized by a safety officer.

(4) Where a safety officer issues a direction under paragraph (2)(b) in respect of any place, machine or thing, the employer shall discontinue the use or operation of the place, machine or thing and no person shall use or operate it until the measures directed by the officer have been taken.

(5) Where a safety officer issues a direction in writing under subsection (1) or (2) or makes a report in writing to an employer on any matter under this Part, the employer shall forthwith

    (a) cause a copy or copies of the direction or report to be posted in such manner as the safety officer may specify; and

    (b) give a copy of the direction or report to the safety and health committee, if any, for the work place affected or the safety and health representative, if any, for that work place.

(6) Where a safety officer issues a direction in writing under subsection (1) or (2) or makes a report referred to in subsection (5) in respect of an investigation made by the officer pursuant to a complaint, the officer shall forthwith give a copy of the direction or report to each person, if any, whose complaint led to the investigation.

146. (1) Any employer, employee or trade union that considers himself or itself aggrieved by any direction issued by a safety officer under this Part may, within fourteen days of the date of the direction, request that the direction be reviewed by a regional safety officer for the region in which the place, machine or thing in respect of which the direction was issued is situated.

(2) The regional safety officer may require that an oral request for a review under subsection (1) be made as well in writing.

(3) The regional safety officer shall in a summary way inquire into the circumstances of the direction to be reviewed and the need therefor and may vary, rescind or confirm the direction and thereupon shall in writing notify the employee, employer or trade union concerned of the decision taken.

(4) A request for a review of a direction under this section shall not operate as a stay of the direction.

(5) Subsection (1) does not apply in respect of a direction of a safety officer that is based on a decision of the officer that has been referred to the Board pursuant to subsection 129(5).

147. No employer shall

    (a) dismiss, suspend, lay off or demote an employee or impose any financial or other penalty on an employee or refuse to pay the employee remuneration in respect of any period of time that the employee would, but for the exercise of his rights under this Part, have worked or take any disciplinary action against or threaten to take any such action against an employee because that employee

      (i) has testified or is about to testify in any proceeding taken or inquiry held under this Part,

      (ii) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the safety or health of that employee or any of his fellow employees, or

      (iii) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part; or

    (b) fail or neglect to provide

      (i) a safety and health committee with any information requested by it pursuant to paragraph 135(6)(j), or

      (ii) a safety and health representative with any information requested by the representative pursuant to paragraph 136(4)(e).

Offences and Punishment

148. (1) Subject to this section, every person who contravenes any provision of this Part is guilty of an offence and liable on summary conviction to a fine not exceeding fifteen thousand dollars.

(2) Every person who contravenes paragraph 125(w) or 126(1)(i) is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars.

(3) Every person who contravenes

    (a) paragraph 125(d), (e) or (g) or 126(1)(e), (f) or (h), or

    (b) subsection 135(5), 136(3) or 145(5)

is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.

(3.1) Every person who contravenes paragraph 125.1(c), (d) or (e) or subsection 125.2(1) or (2) or 144(2.1) is guilty of an offence and liable

    (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or

    (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding two years or to both.

(4) Every person who contravenes any provision of this Part the direct result of which is the death of or serious injury to an employee is guilty of an offence and liable on summary conviction to a fine not exceeding one hundred thousand dollars.

(5) Every person who wilfully contravenes any provision of this Part knowing that the contravention is likely to cause the death of or serious injury to an employee is guilty of an offence and liable

    (a) on summary conviction, to a fine not exceeding twenty-five thousand dollars; or

    (b) on conviction on indictment, to imprisonment for a term not exceeding two years.

(6) On a prosecution of a person for a contravention of subsection (4) or

    (a) paragraph 125(q), (r), (s), (t), (u), (v) or (w),

    (b) paragraph 126(1)(c), (d), (e), (f), (g), (h) or (i),

    (c) paragraph 147(b),

    (d) subsection 125.2(1), 125.2(2), 127(1), 135(1), 136(1), 144(2), 144(2.1), 144(3), 144(4) or 155(1), or

    (e) section 124, 125.1, 142 or 143,

it is a defence for the person to prove that the person exercised due care and diligence to avoid the contravention.

(7) For the purposes of this section, where regulations are made under subsection 157(1.1) in relation to safety or health matters referred to in a paragraph of sections 125 to 126 by which a standard or other thing is to be prescribed, that standard or other thing shall be deemed to be prescribed within the meaning of that paragraph.

Clause 15: Subsections 149(1) and (2) read as follows:

149. (1) No proceeding in respect of an offence under this Part shall be instituted except with the consent of the Minister.

(2) Where a corporation commits an offence under this Part, 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 is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Clause 16: Subsection 154(1) reads as follows:

154. (1) Where a person is convicted of an offence under this Part on proceedings by way of summary conviction and the only punishment provided for the offence under this Part is a fine, no imprisonment may be imposed as punishment for the offence or in default of payment of any fine imposed as punishment.

Clause 17: The relevant portion of subsection 156(1) reads as follows:

156. (1) Notwithstanding subsection 14(1), any member of the Board may dispose of any reference or complaint made to the Board under this Part and, in relation to any reference or complaint so made, any member

Clause 18: New.

Clause 19: Subsection 157(1.1) reads as follows:

(1.1) Where the Governor in Council is of the opinion that a regulation cannot appropriately be made by prescribing a standard or other thing that by a paragraph of sections 125 to 126 is to be prescribed, the Governor in Council may make regulations in relation to the safety and health matters referred to in that paragraph in such manner as the Governor in Council considers appropriate in the circumstances, whether or not the opinion of the Governor in Council is indicated at the time the regulations are made.

Clause 20: Section 158 and the heading before it read as follows:

Application of Provincial Laws

158. The Governor in Council may by regulation direct that this Part applies in respect of any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation that is, or is part of, a corporation that is an agent of Her Majesty in right of a province and whose activities are regulated, in whole or in part, pursuant to the Atomic Energy Control Act.

Hazardous Materials Information Review Act

Clause 23: The relevant portion of subsection 46(2) reads as follows:

(2) An official of the Commission may communicate or allow to be communicated information obtained by the Commission or an appeal board from a supplier or employer for the purposes of this Part, or allow inspection of or access to any book, record, writing or other document containing any such information, to or by

    . . .

    (c) any official of the Department of Human Resources Development, or any safety officer or regional safety officer within the meaning of section 122 of the Canada Labour Code, for the purposes of the administration or enforcement of Part II of that Act;

National Energy Board Act

Clause 24: Subsection 9(4) reads as follows:

(4) Any officer or employee appointed as provided in subsection (1) may be designated as a regional safety officer or as a safety officer for the purposes of Part II of the Canada Labour Code.

Non-smokers' Health Act

Clause 25: The definition ``inspector'' in subsection 2(1) reads as follows:

``inspector'' means a person who is designated as an inspector pursuant to section 9, and includes a safety officer as defined in section 122 of the Canada Labour Code;

Clause 26: Subsections 3(6) and (7) read as follows:

(6) No employer shall designate a room or area for smoking under subsection (2) in a work place, other than on an aircraft, train, motor vehicle or ship that is carrying passengers, until after the employer has consulted with the safety and health committee or safety and health representative in respect of that work place or, if there is no such committee or representative, with the employees employed there.

(7) In subsection (6), the expressions ``safety and health committee'', ``safety and health representative'' and ``work place'' have the same meaning as in Part II of the Canada Labour Code.

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