November 8, 2011

How Ontario safety law changes affect construction firms

GREG MECKBACH

digital media editor

Companies in the construction industry are facing an increase in applications for union certification and the recent Ontario Occupational Health and Safety Act changes underscore the importance of responding to safety recommendations from employees, according to speakers at an employment law conference Tuesday in Toronto.

The Ontario government recently passed Bill 160, which made several changes to the Occupational Health and Safety Act. That act was the result of a report from the expert panel led by Tony Dean, which in turn resulted from an accident in December, 2009 that killed four construction workers who fell from a swing stage in Toronto.

In the past, recommendations from safety committees to employers had to come from the entire joint occupational health and safety committee, said Ryan Conlin, an employment lawyer specializing in health and safety.

The idea, he said, was to reach a consensus. However, Conlin said Bill 160 has changed the law to allow the worker to make a recommendation to the employer even if no consensus has been reached by the safety committee. “The employer has an obligation to respond to them,” Conlin said, adding the Ministry of Labour inspectors frequently ask to see minutes of safety committees meetings.

Recommendations are reviewed by labour inspectors and it is “very important to make sure ” responses be fulsome, detailed and that issues are addressed.

“There does not have to be an accident for them to lay charges,” Conlin said of the Ontario Ministry of Labour. “They lay charges routinely where there has been no accident.”

Conlin made his remarks at the 25th annual employers’ conference, produced by law firm Stringer Brisbin Humphrey and held the Toronto Congress Centre.

Bill 160 also puts the onus on employers, in the event of a reprisal allegation, to prove that any action taken against an employee who had lodged a safety complaint was not retaliation that resulted from the complaint. “Has the Ministry of Labour ever been shy about litigation?” Conlin asked. “Have you ever read their website?”

In addition to the provincial health and safety law, employers can also be charged under the criminal code section 271.1 (established by Bill C-45), said Landon Young, a lawyer with Stringer Brisbin Humphrey’s occupational health and safety practice group.

He said there has been considerable pressure from the labour movement to lay more criminal charges in workplace accidents. The case involving Metron Construction Corp., which along with three individuals was charged with criminal negligence in connection with the 2009 Toronto swing stage collapse, will be “a very important test case,” Young said.

If the labour movement is “not satisfied with the outcome” of that case, we will see “more pressure brought to bear” from the labour movement, he said.

The role of unions in construction was one focus of a presentation at the conference by Jeffrey Murray, an employment lawyer with experience in health care, manufacturing and construction.

Murray said there’s a popular belief that “unions are beat” and “are no longer a threat” to non-unionized employers and are “easy to get concessions from,” but he showed numbers that suggest otherwise.

Although the number of unions applying for certification in the manufacturing sector has declined by 90 per cent in 10 years, Murray said the number of construction union applications has more than doubled during the same time.

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