January 25, 2008 By Ken Linington
This system is based on the principle that workplace parties themselves are in the best position to identify health and safety problems and to develop solutions.
A number of things happened during the last five years that led the agricultural industry to ask for some type of health and safety legislation. Through the Labour Issues Coordinating Committee, an initial request to the Ontario Ministry of Agriculture Food and Rural Affairs was made in August 2003. Those discussions ultimately led to a unique regulation under the Occupational Health and Safety Act (OHSA).
What could possibly have happened for farmers to ask for more legislation?
• The legislative debate around the Agricultural Employees Protection Act 2002 focused on worker health and safety.
• A number of recommendations from Coroners Inquests.
• Extension of ‘criminal’ charges for health and safety negligence in the workplace under the federal government’s Bill C-45.
• The large majority of provinces and states cover farm workers.
• The need for agriculture to remain competitive in the labour market.
OHSA’S ‘INTERNAL RESPONSIBILITY SYSTEM’
The industry embraced the principles found in OHSA. The “internal responsibility system” is based on the principle that workplace parties themselves are in the best position to identify health and safety problems and to develop solutions. To balance the employers’ general rights to direct the workforce and control the production process in the workplace, the Act gives four basic rights to workers:
• Right to participate in identifying and resolving health and safety concerns.
• Right to know about hazards.
• Right to refuse unsafe work.
• Right to stop work in very specific circumstances.
The Ministry of Labour (MOL) is responsible for the Act and its enforcement. In many regards, MOL only gets involved if the internal responsibility system is not functioning. The large majority of concerns of both workers and employers are resolved within the system. It became obvious that it was not practical to apply existing industrial regulations to farming. The Farming Operations Regulation responds to the unique characteristics of agriculture.
RIGHT TO PARTICIPATE
Employers are obligated to request worker participation. Workers must select representatives from among themselves, and those workers must agree to volunteer to participate with no increase in pay or benefits. Employers are not allowed to appoint worker representatives. Given the characteristics of farming, this volunteering of workers is not always assured. Once identified, worker representatives have health and safety obligations in the workplace. This will change the “culture” of the workplace.
Frequently with entry-level positions or seasonal employment, workers may have English as a second language (ESL). New immigrants or offshore workers dominate this worker segment. Illiteracy may compound the language concerns, and cultural background has an impact. Certainly, some offshore worker groups are not likely to volunteer. Employers are obligated “to try” to get worker representatives, but if none are forthcoming, the employer will still have fulfilled the obligation. Having said that, the employer would need to show how they tried to encourage worker representatives.
Defining the word “worker” can also be a challenge, especially considering the family orientation of farming where many workers are directly tied to management. Co-ownership of assets, income-sharing agreements, joint ventures, supervisory activities, bartering of labour, and work for future considerations are all common ways to pay family members. A worker is defined as someone who is paid “money.” Farming operations with no paid employees are not covered by the Act.
The term “workplace” requires some understanding. A workplace has more to do with the type of work than it does a physical location. A worker harvesting flowers in greenhouse ‘A’ in the morning can be moved to greenhouse ‘B’ (which could be five miles away) in the afternoon to harvest flowers for the same employer. The two locations would be considered the same workplace under the Act.
JOINT HEALTH AND SAFETY COMMITTEE
A guide is available to help businesses establish and run the Right to Participate component of the Act. It can be accessed from the Ministry of Labour website. It also forms part of the Farm Safety “Employers Package.” Some of the key aspects from the Guide include:
• Determining when a business must establish a Health & Safety Representative (6-19 regularly employed workers) or a Joint Health and Safety committee (20 or more regularly employed workers). “Regularly employed” is defined as a position in place for three consecutive months or more. It does not need to be the same person in that position for three months. In businesses with five or fewer workers, it is felt that the employer and employees work shoulder to shoulder, and do not require structured lines of communications.
• The co-operative involvement of everyone in the workplace ensures everything possible is done to eliminate hazards.
• A Joint Health and Safety Committee (JHSC) is composed of at least one employer-selected and one worker-selected representative for businesses with 20 to 49 regularly employed people. Where you have 50 or more workers regularly employed, there is a need for a minimum of four people with at least half selected by the workers. In operations with 50 or more workers, special training is required for what is called “certified members.” One employer and one worker representative must take general safety training (level 1) and specific workplace safety training (level 2), paid for by the employer.
• The committee is to meet at least quarterly, with agendas prepared by co-chairs and distributed one week in advance of the meeting date.
• Minutes are to be kept and posted in the workplace.
• The JHSC role is to identify hazards and determine how to manage them, consult about workplace testing, make recommendations to the employer, and investigate work refusals and serious accidents.
• Monthly inspections of the workplace are to be undertaken.
In fulfilling these obligations, an employer might consider:
• Posting in the workplace a request for worker selection.
• Selecting workers in a fairly slow period of the year.
• Sharing some recommendations, such as the need for a full-time employee literate in English, with good interpersonal skills, and an understanding of a variety of workplaces.
• Establishing “terms of reference” for the JHSC operation.
• Selecting more than the minimum requirement.
This project is funded in part through contributions by the Government of Canada and the Province of Ontario under the Agricultural Management Institute (AMI), an initiative of the federal-provincial-territorial Agricultural Policy Framework designed to position Canada’s agri-food sector as a world leader. The Agricultural Adaptation Council administers the AMI program on behalf of the Government of Canada and Province of Ontario.
Ken Linington is the human resources director with Flowers Canada (Ontario). • 519-836-5495 or 800-698-0113, fax 519-836-7529, or Ken@fco.on.ca
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