Due Diligence for Management

• Surinder Sehdev, Manager Health & Safety– Regional Municipality of York

– 17250 Yonge Street

– Newmarket, ON L3Y 6Z1

– CANADA

Facts and Figures in Ontario (2000)

• Occupational fatalities: 250-300

• Injuries: 200,000

• # of workdays lost (injuries) 6 million

• Benefits paid $ 1.6 billion

• Total cost to employers $ 8 billion

• WSIB Unfunded liability $ 12 billion

Facts & Figures: M.O.L activities

• Number of Inspections: 56,928

• Work refusals investigated 312

• Number of orders issued 58,970

• Amount of fines $2.3 M

• Number of convictions: 380

• M.O.L success rate: 72%

• Number of people fined:

• Employers 382

• Supervisors 136

• Workers 28

The Law .

• Social Welfare Quasi Criminal Laws, like the OHS Act, and the Environmental Protection Act are a step down from criminal liability in that while it is necessary to have the actual wrongful conduct take place, it’s not necessary to have criminal intent to do it.

The Law ..

• Under section 66 of the OHS Act, the MOL can lay charges for the breach of the Act/Regulations. Individuals, Foremen, workers or a combination of each can face prosecution under the Prov. Offences Act.

• Upon conviction, individuals can be fined up to $25,000 or one year imprisonment.

• Corporations can be fined up to $500,000.

The Law …

• With passage of Bill 208, Directors and Officers of a Corporation have specific duties defined under section 32 of the Act and can be held personally liable, if convicted of breaches of the Act/or its Regulations.

• It simply means “Taking Care”.• “taking every precaution reasonable in the

circumstances for the protection of the worker”.• The only defense available to charged party.• Section 66 states “It shall be the defense …..”.• It is the foundation of a successful H&S Program.• It’s an investment in accident prevention and

reduced accident costs.

What is Due Diligence?

Examples of Due Diligence for Supervisors

• Coaching

• Job observation

• Safety talks

• Tailboard conferences

• Enforcement of rules & regulations

• Discipline

• Taking problems to senior management

Examples of Due Diligence for Managers

• OHS Performance evaluation

• Holding others accountable

• Implementing programs

• Considering system wide problems

Examples of Due Diligence for Executives

• Policy

• Competent Professionals

• Sufficient Resource Allocation

• Leadership

• Holding Subordinates Accountable

• Ensuring the development of an OHS System

• Ensuring Periodic “System Audits”

Why Should You Personally Care?Aside from your obvious concern not to be morally responsible for death, pain and suffering……...

• Duties under the law are personal… they cannot be relieved “from above” and they cannot be delegated to others

• Certain individuals maybe left “holding the bag” when others run for cover after an accident occurs and investigation begins.

• The Answer: You must be able to prove that you were duly diligent… that you “took every Precaution Reasonable in the circumstances”

Generic Due Diligence

• Take action• Every a very high standard• Precaution Controls- physical, behavioral, administrative,

organizational. What do you have to do to determine what every control should be?

• Reasonable Objective, prudent, balanced--- “common sense on its best behavior”.. Not just what an average person

would do on an average day., but what an average person

would do on a good day.• In the circumstances Contextual, history, constraints, opportunities

Who is a competent supervisor?

• Section 25(2)© section 1• “competent person” means a person who,

– (a) is qualified because of knowledge, training and experience to organize the work and its performance

– (b) is familiar with this Act and the regulations that apply to the work, and

– (c) has knowledge of any potential or actual danger to health or safety in the workplace.

Duties of Employers [sec.25 (1)] .

– a) The equipment, materials and protective devices, as prescribed, are provided;

– b) The equipment, materials and protective devices provided by the employer are maintained in good condition.

– c) The measures and procedures prescribed are carried out in the workplace,

– d) The equipment, materials and protective devices provided by the employer are used as prescribed.

Duties of Employers [sec. 25 (2)] ..

• a) Provide information, instruction & supervision to a worker to protect the H & S of the worker.

• c) when appointing a supervisor, appoint a competent person.

• d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent.

Duties of Employers [25 (2)] ...

• e) Afford assistance to a committee and H&S Representative,

• j) prepare and review, at least annually, a written Policy and Program,

• h) take every precaution, reasonable in the circumstances for the protection of the worker.

Duties of Employers 26 (1)

• In addition to the duties imposed in section 25, an employer shall,• a) establish an occupational health services for workers as prescribed;• b) where an occupational health service is established as prescribed;

maintain the same according to the standards prescribed • c) keep and maintain accurate records of the handling, storage, use

and disposal of biological, chemical or physical agents as prescribed;• d) accurately keep and maintain and make available to the worker

affected, such records of the exposure of a worker to biological, chemical or physical agents as prescribed;

• e) notify a Director of the use or introduction into a workplace of such biological, chemical or physical agents as maybe prescribed;

• f) monitor at such time or times or at such interval or intervals the levels of biological, chemical or physical agents as maybe prescribed;

Duties of Employers 26 (1)

• (g) comply with a standard limiting the exposure of a worker to biological, chemical or physical agents as prescribed;

• (h) establish a medical surveillance program for the benefit of workers as prescribed

• (i) provide for safety-related medical examinations and tests for workers as prescribed

• (j) where so prescribed, only permit a worker to work or to be in a workplace who has undergone such medical examinations, tests, or x-rays as prescribed and who is found to be physically fit to do the work in the workplace;

• (k) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for the protection of a worker; and

• (l)carry out such training programs for workers, supervisors and committee members as may be prescribed.

Duties of Supervisor [sec. 27 (1)] .

• A supervisor shall ensure that a worker,– a) works in the manner and with the protective

devices, measures and procedures required by the Act and the Regulations; and

– b) uses or wears the equipment, protective devices or clothing that the workers’ employer requires to be worn.

Duties of Supervisors [27 (2)] ..

• A supervisor shall,– a) advise a worker of the existence of any

potential or actual danger to the H&S of the worker of which the supervisor is aware;

– b) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for the protection of the worker, and

– h) take every precaution, reasonable in the…..

Duties of workers [sec. 28(1) .

• A worker shall,– a) work in compliance with this Act and the

Regulations– b) use or wear the equipment, protective devices

or clothing that the worker’s employer requires to be used or worn.

– c) report to his or her employer or supervisor, the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker.

Duties of workers [sec.28 (2)] ..

• No worker shall,

• b) use or operate any equipment, machine, device or thing, or work in a manner that may endanger himself, herself or any other worker.

Construction Regulation O Reg.213/91When to appoint a Supervisor

• 14 (1) A constructor shall appoint a supervisor for every project at which five or more workers will work at the same time.

• (2) A supervisor shall supervise the work at all times either personally or by having an assistant, who is a competent person, do so personally.

• (3) A supervisor or a competent person appointed by the supervisor shall inspect all machinery and equipment, including fire extinguishing equipment, magazines, electrical installations, communication systems, sanitation and medical facilities, building and other structures, temporary supports and means of access and eagress at the project to ensure that they do not endanger any worker.

Construction Regulation O Reg.213/91 When to appoint a Supervisor

• (4) An inspection shall be made at least once a week or more frequently as the supervisor determines is necessary in order to ensure that the machinery and equipment referred to in sub- section (3) do not endanger any worker.

• (5) A competent person shall perform tests and observations necessary for the detection of hazardous conditions on a project

• 15. An employer of five or more workers on a project shall appoint a supervisor for the workers. O. Reg. 213/91,5. 15.

Offences and Penalties [sec.66 (1)] .

• Every person,who contravenes/fails to comply with

– a) a provision of this Act or the Regulations,– b) an order or the requirement of an inspector

or a Director– c) an order of the Minister,

• is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or both.

Offences and Penalties [sec. 66 (2)] ..

• If a Corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the Corporation is $500,000.

It shall be the defense for the accused to

prove that every precaution, reasonable

in the circumstances was taken.

Internal Responsibility System (IRS)

• 1: Responsibility for identifying hazards and solving OHS problems is internal to the workplace. Primary responsibility for OHS is not “external” i.e., on the shoulders of the M.O.L.

• 2: OHS should not be an adversarial matter between workers and employers

• 3: Everyone has a common interest in avoiding workplace injury and illness, All individuals are involved.

• 4: Everyone is legally required -- as an individual -- to participate in identifying hazards and in seeking to eliminate or control them.

Internal Responsibility System (IRS)

• 5: Everyone is legally required-- as an individual-- to participate in identifying hazards and in seeking to eliminate or control them.

• 6: Everyone is an “internal auditor” to see that the Act and regulations are complied with.

• 7: The M.O.L Inspector’s job is not to be at everyone’s elbow to advise and to give commands.

• 8: The Inspector (the External Responsibility System) only steps in when the Internal Responsibility System is clearly not working -- when people are not taking their rights and responsibilities seriously

Joint Health & Safety Committees {JHSC’s} .

• At least 1/2 of JHSC members shall not exercise managerial functions

• At least one member representing workers is certified and one member representing management is certified

• JHSC can identify workplace hazards and make recommendations to management

• JHSC shall meet at least once every 3 months and keep minutes

• Committee member representing workers shall inspect workplace at least once a month

Joint Health & Safety Committees {JHSC’s} ..

• JHSC entitled to one hour preparation time before committee meetings

• Members of JHSC paid for time involved in related activities

• Employer must respond in writing within 21 days of receiving JHSC recommendation

• Employer must post names and work locations of committee members

Certified members; Managing the Challenge:

• Carefully select Mgmt. Certified Members (CM)• Determine the “appropriate” number of C.M’s• Train all Supervisors to understand OSHA• Train JHSC to make them effective and functional• Review/revise training annually.

Thank You