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Due Diligence & Internal Responsibility - Bill C-45
Attention: Business Owner
Thank you for the opportunity to quote on your Occupational Health & Safety Training. We have attempted to document very briefly the legislated Health & Safety Laws for Employers with 20 plus employees. Understanding the Internal Responsibility System and Due Diligence is fundamental to understanding why the Government has not only ordered that certain training is mandatory but also is introducing Criminal Negligence Legislation for “wanton and reckless management” under Bill C 45 anticipated proclaimed on March 31, 2004. Bill C 45 allows for Criminal Prosecution for OHSA contraventions of a critical or fatal nature against all individuals involved.
Due diligence is the level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances. Applied to Occupational Health and Safety, Due Diligence means that every employer shall take all reasonable precautions (OHSA sec. 25(2)(h)) under the particular circumstances, to prevent injuries or accidents in the workplace. This duty applies to situations that are not addressed elsewhere in the occupational health and safety legislation.
To exercise and demonstrate due diligence, an employer must implement a plan via a written Policy Statement and Program or a written H&S Manual (OHSA sec. 25(2)(j)) to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards. "Due diligence" is important as a legal defense for a person charged under occupational health and safety legislation and/or Bill C 45. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.
Occupational Health and Safety (OH&S) legislation in Canada outlines the general duties, rights and responsibilities of the employer, the supervisor and the worker. Each province, territories and the federal government has its own OH&S legislation. The federal health and safety legislation is commonly referred to as Canada Labour Code Part II and regulations. Most Canadian workers fall under the Health & Safety Legislation (related Acts) or Occupational Health & Safety Act of the province or territory where they work.
In each province or territory, there is an Act (typically called the Occupational Health and Safety Act or something similar) that applies to most workplaces in that region. The Government body enforcing the Act(s) is usually is normally called The Ministry of Labour or Department of Labour. In some jurisdictions, it is a Workplace Safety & Insurance System or Board or Commission that has the responsibility for both insurance and enforcement of Occupational Health and Safety. Each provincial or territorial government is responsible for the administration and enforcement of its own Occupational Health and Safety Act, Regulations, Related Acts and Workplace Health & Safety Insurance Systems. |
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What is the Internal Responsibility System?
In 1974, the UK introduced the concept of the “Internal Responsibility System” (IRS). In 1976, The Ham Royal Commission Report adopts the IRS concept. In 1979, Bill 70 - The Occupational Health & Safety Act (OHSA) became law with most of the IRS elements. The internal responsibility system puts in place an employee-employer partnership in ensuring safe, healthy and disease free workplaces. A Health and Safety Representative or a Joint Health & Safety Committee is an employer/employee forum ensuring employers and employees are working together and improving health and safety in the Work place. The internal responsibility system is the underlying philosophy of the occupational health and safety legislation in every Canadian jurisdiction. Its foundation is that everyone in the workplace - both employees and employers - is responsible for his or her own safety and for the safety of co-workers. Acts and regulations do not always impose or prescribe the specific steps to take for compliance. Instead, it holds employers responsible for determining such steps to ensure health and safety of all employees. The Internal Responsibility System promotes the following: |
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- Establishes responsibility sharing systems
- Safety culture / Best Practice
- Develop self reliance
- Ensures compliance
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| These general provisions give employers the "freedom" to carry out measures and control procedures that are appropriate for their individual workplaces. On the other hand, the challenge for the employers is to know when they have fulfilled all appropriate regulatory requirements. Many basic elements (e.g., rights and responsibilities of workers, responsibilities of employers, supervisors, etc.) are similar in all the jurisdictions across Canada. However, the details of the OH&S legislation and how the laws are enforced vary from one jurisdiction to another. In addition, provisions in the regulations may be "mandatory", "discretionary" or "as directed by the Minister". The following is a brief listing of the minimal H&S requirements under the IRS: |
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- Establish and maintain a joint health and safety committee, or cause workers to select at least one health and safety representative with minimum two certified members OHSA (sec 9)
- CERTIFIED MEMBER Training for one staff and one H&S Committee rep. OHSA Sec. 9(12)
- WORKPLACE INSPECTIONS conducted monthly OHSA Sec. 9 (23 to 30)
- JHSC MEETINGS held on a quarterly basis minimally OHSA Sec. 9 (33)
- Immediately report all critical injuries to the government agencies responsible for OH&S (sec 9(31))
- OHSA LEGLISLATION TRAINING for those required to be familiar with the OH&SA or deemed to be competent – specifically supervision or management OHSA (sec. 25 (2)(c))
- Appoint a competent supervisor who sets the standards for performance, and who ensures safe working conditions are always observed. (sec 25(2)(c))
- HEALTH & SAFETY POLICY and PROGRAM OHSA (25(2)j) to be documented/posted
- Take every reasonable precaution to ensure the workplace is safe OHSA (sec 25 (2)h)
- Train employees about any potential hazards and in how to safely use, handle, store and dispose of hazardous substances and how to handle emergencies OHSA (sec 25(2))
- Ensure personal protective equipment is used as prescribed and ensure workers know how to use the equipment safely and properly OHSA (sec 25, 27, 28) O. Reg 851 Section 79
- WHMIS applies in all Canadian work places that are covered by occupational health and safety legislation and where WHMIS-controlled products are used. (SOR88/66)
- CONFINED SPACE Training applies as defined (usually not for normal occupancy)
- EMERGENCY RESPONSE Training including the FIRE CODE
- HEARING PROTECTION PROGRAM for 90db + noise levels O. Reg. 851 Sec. 139
- PERSONAL PROTECTIVE EQUIPMENT OHSA Sec. 25 – 28 + O. Reg. 851 Sec. 79 - 86
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