Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. For further information please see full disclaimer.
In workplaces, including construction projects, at which the number of workers regularly exceeds five and at which no joint health and safety committee is required, employers or constructors must ensure that workers select a health and safety representative [subsection 8(1)]. Like joint health and safety committee members, the representative should be committed to improving health and safety conditions in the workplace.
The health and safety representative is selected by workers at the workplace who do not exercise managerial functions or by the union where the workplace is unionized [subsection 8(5)]. At the present time, the Act does not require that the representative be specifically trained. However, there have been amendments to the Occupational Health and Safety Act (OHSA), which relate to training requirements for health and safety representatives, but which have not yet been put into effect. When these amendments do come into effect, they will require that, unless otherwise prescribed, the employer or constructor ensure that the representative receives training that enables him or her to effectively exercise the powers and perform the duties of a health and safety representative [subsection 8(5.1)].
A worker health and safety representative is required on all farming operations at which the number of workers regularly exceeds five, and at which no health and safety committee is required. More detailed information is available in the Ministry of Labour’s A Guide for Health and Safety Representatives and Joint Health and Safety Committees on Farming Operations.
A health and safety representative is entitled to take time from work as is necessary to carry out his or her duties to carry out monthly inspections of the workplace and inspect the place where a person is killed or critically injured at a workplace.
A health and safety representative must be paid at either their regular rate or, where applicable, their premium rate of pay when absent from work for the purposes of carrying out his or her duties under the Act [subsection 8(15)].
Generally speaking, a health and safety representative has the same responsibilities and powers as a joint health and safety committee member. These include:
A worker must report any hazard or contravention of the Act to the employer or supervisor [clauses 28(1)(c) and 28(1)(d)]. As a best-practice it may also be advisable to alert the health and safety representative that the matter has been presented to the employer If the matter is not resolved to the worker’s satisfaction, a worker may choose to inform the health and safety representative about the identified hazard or contravention.
The health and safety representative must be present during the employer or supervisor’s investigation of a work refusal [subsection 43(4)]. This investigation is typically conducted by the supervisor.
If the issue is not resolved, the employer, the worker, or a representative of one of them, must notify a Ministry inspector [subsection 43(6)]. The health and safety representative must be consulted by the inspector who conducts the investigation [subsection 43(7)].
The inspector is required to investigate the work refusal in consultation with specified persons, including the health and safety representative where applicable [subsection 43(7)].
See also the Guide to the Occupational Health and Safety Act: Part VI.
The health and safety representative has the power to inspect the place where the incident occurred as well as any relevant machine, device or thing and shall report his or her findings in writing to the Ministry of Labour [subsection 8(14)].
Where appropriate, the health and safety representative may wish to make specific recommendations to the employer in respect of the hazard which led to the injury or fatality [subsection 8(10)].
Note: A person is “critically injured” for the purposes of the Act if he or she has an injury of a serious nature that places life in jeopardy, produces unconsciousness, results in substantial loss of blood, involves the fracture of a leg or arm but not a finger or toe, involves the amputation of a leg, arm, hand or foot but not a finger or toe, consists of burns to a major portion of the body, or causes the loss of sight in an eye (Regulation 834)
The health and safety representative has various powers relating to the collection of health and safety-related information. For example: the health and safety representative has the power to obtain information from the employer about health and safety related testing and any actual or potential hazards in the workplace [subsection 8(11)]. The employer must share any knowledge of health and safety practices, tests and standards in the industry [clauses 8(11)(a),(b), and (c)] The employer is further obligated to provide the health and safety representative with health and safety reports under clause 25(2)(l)].
Where a person is killed or critically injured from any cause at a workplace the employer must immediately notify the Ministry and the health and safety representative [section 51].
The employer must notify the health and safety representative of lost time injuries caused by accident, explosion, fire or incident of workplace violence at the workplace, and must report any occupational illnesses of which he or she has knowledge [section 52].
The employer may also be required to provide other specific information to the health and safety representative where prescribed. Therefore, as stated previously, it is important that the employer and the health and safety representative be familiar with the regulations that apply to their workplace.
The Workplace Safety and Insurance Board, at the request of the health and safety representative, is required to send an annual summary of data relating to the number of fatalities, lost workday cases, workdays lost, non fatal cases requiring medical care (but not involving lost workdays) and incidence of occupational illnesses [section 12].
The Act places a general duty on an employer to assist and cooperate with the health and safety representative in the performance of his or her functions [clause 25(2)(e)].
More specific employer responsibilities with respect to the health and safety representative include:
It is an offence for any person to knowingly hinder or interfere with, or to give false information to a health and safety representative who is in the process of exercising his or her powers and/or performing his or her duties under the Act.
ISBN 978-1-4606-5314-2 (HTML)
ISBN 978-1-4606-5313-5 (Print)
Disclaimer: This web resource has been prepared to assist the workplace parties in understanding some of their obligations under the Occupational Health and Safety Act (OHSA) and the regulations. It is not intended to replace the OHSA or the regulations and reference should always be made to the official version of the legislation.
It is the responsibility of the workplace parties to ensure compliance with the legislation. This web resource does not constitute legal advice. If you require assistance with respect to the interpretation of the legislation and its potential application in specific circumstances, please contact your legal counsel.
While this web resource will also be available to Ministry of Labour inspectors, they will apply and enforce the OHSA and its regulations based on the facts as they may find them in the workplace. This web resource does not affect their enforcement discretion in any way.