The Ontario Ministry of Labour is seeking submissions on a proposed new regulation under the Ontario Occupational Health and Safety Act (“OHSA”) that would provide assistance with OHSA reprisal complaints, including education, legal advice and representation, to non-unionized workers and small employers (fewer than 50 employees). The proposed regulation would expand the mandate of the Office of the Worker Advisor (“OWA”) and the Office of the Employer Advisor (“OEA”) to provide reprisal complaint assistance. Currently, the OWA and OEA assist workers and employers under the Workplace Safety and Insurance Act, 1997 (“WSIA”).
Section 50 of the OHSA prohibits employers from dismissing, disciplining, penalizing, or intimidating or coercing a worker because he or she has, among other things, acted in accordance with or sought enforcement of the OHSA, its regulations or an order under the OHSA or testified in any OHSA proceedings. Workers who allege violation of this prohibition may resolve their complaint through binding arbitration under a collective agreement (if any) or by filing a complaint with the Ontario Labour Relations Board (“OLRB”). The Dean Panel, which was appointed to review Ontario’s occupational health and safety regime, found that the OLRB system was too complicated for unrepresented parties and reprisal complaints were often abandoned without being adjudicated. To address this situation, the Dean Panel recommended expanding the mandate of the OWA and the OEA to provide assistance to workers in pursuing and assistance to small employers in responding to reprisal complaints. The proposed regulation will expand the mandate of the OWA and OEA to provide reprisal complaint support and advocacy services to workers and small employers, respectively.
The Ministry of Labour has not released text for the draft regulation, but is asking interested parties to provide written submissions based on its proposal summary. Written submissions are due by January 31, 2012, and can be submitted by email to [email protected] or mailed to:
OWA/OEA Proposed Regulation
Ontario Ministry of Labour
Health and Safety Policy and Program Development Branch
400 University Avenue, 12th Floor
Toronto, Ontario, M7A 1T7.
We encourage employers to participate in this process as the availability of free information, advice and representation is likely to increase the number of reprisal complaints filed and pursued at the OLRB. Small employers will benefit from the availability of free legal information and advice, but medium and large employers will have to bear the full legal costs of defending against a reprisal complaint. Employers could suggest provisions similar to section 176(2) of the WSIA which establishes the OEA and caps eligible employers at those with less than 100 employees. Having a similar 100 employee cap for reprisal complaint services may broaden the number of eligible employers to include medium-sized businesses. Interested parties may also want to provide submissions on funding the expanded mandate of the OWA and OEA. Currently the Minister of Labour sets an operating budget for the OWA and OEA, and that budget is funded by the Workplace Safety and Insurance Board (“WSIB”).
Bill 160 has already given Ministry of Labour inspectors the power to refer reprisal complaints directly to the OLRB, which we expect will increase the number of reprisal complaints once this provision comes into force on a date to be proclaimed. The Dean Panel also recommended that the Ministry of Labour review its policy of not prosecuting employers for reprisals and develop guidelines for inspectors regarding when to lay charges for contraventions of section 50 of the OHSA. As the province continues to implement the Dean Panel recommendations, we may begin to see prosecutions for alleged reprisals.
The Ministry of Labour has also designed and is seeking comments on a draft “Prevention Starts Here” poster, which the Dean Panel recommended for all workplaces to explain key rights and responsibilities. Interested parties have a number of options for providing comments. Please visit the link for more details.