Advisory Circulars

Commercial & Business Aviation

OVERVIEW OF THE AMENDMENTS TO
PART II OF THE CANADA LABOUR CODE

Subject:  11. Powers and Duties of Health and Safety Officers
(sections 141 and 145)

AMENDED CODE EXPLANATION/APPLICATION
  Besides the change in nomenclature (from "safety officer" to "health and safety officer"), there are several additions to the powers and duties of health and safety officers.
141.(1)(d) take or remove, for testing, material or equipment if there is no reasonable alternative to doing so; Where health and safety officers were only authorized to take samples of materials for analysis in the previous Code, they are now empowered to remove material or equipment in whole for testing.
(g) direct any person not to disturb any place or thing specified by the officer for a reasonable period pending an examination, test, inquiry, investigation or inspection in relation to the place or thing; This clause allows the health and safety officer to direct any person, including persons beyond the control of the employer, not to disturb specific things or places, for example, an accident scene.
(j) direct the employer or an employee or a person designated by either of them to accompany the officer while the officer is in the work place; and This provision provides the necessary powers for the health and safety officer to be accompanied by a work place party if suitable.
(k) meet with any person in private, or at the request of the person, in the presence of the person's legal counsel or union representative. This provision enables the health and safety officer to meet with any person in private or in the presence of that person's legal counsel or union representative.
141.(2) A health and safety officer may issue a direction under subsection (1) whether or not the officer is in the work place at the time the direction is issued. Health and safety officers do not have to be in the work place to issue a direction related to this section (141). They may be issued by such means as the telephone or e-mail.
141.(3) A health and safety officer who has, under paragraph (1) (d), taken or removed material or equipment for testing shall, if requested by the person from whom it was taken or removed, return the material or equipment to the person after testing is completed unless the material or equipment is required for the purposes of a prosecution under this Part. This requires that material or equipment removed for testing be returned to the person, upon request, unless it is needed in a prosecution case.
141.(4) A health and safety officer shall investigate every death of an employee that occurred in the work place or while the employee was working, or that was the result of an injury that occurred in the work place or while the employee was working. All accidents involving the death of an employee must be investigated. There is no time frame for conducting an investigation, but it must be started as soon as possible after the officer is informed of the accident.
141.(5) If the death results from a motor vehicle accident on a public road, as a part of the investigation the health and safety officer shall obtain a copy of any police report as soon as possible after the accident. In cases where the death is the result of a motor vehicle accident, the health and safety officer must obtain a copy of any police report.
141.(6) Within ten days after completing a written report on the findings of an inquiry or investigation, the health and safety officer shall provide the employer and the work place committee or the health and safety representative with a copy of the report. If the health and safety officer prepares a report on an accident investigation, it must be provided to the employer and workplace committee, or health and safety representative, within ten days after it's completed, not ten days after the completion of the investigation itself. While there may be a time lag between the two activities, it should be kept as short as possible.
141.(7) The Minister shall provide every health and safety officer with a certificate of authority and, when carrying out duties under this Part, the officer shall show the certificate to any person who asks to see it. The Minister of Labour will provide each health and safety officer with a certificate of authority which they must present to anyone requesting to see it.
141.(8) A health and safety officer is not personally liable for anything done or omitted to be done by the officer in good faith under the authority or purported authority of this Part. This clause was in the former Code. Change in terminology only.
141.(9) Notwithstanding subsection (8), and for greater certainty, Her Majesty in right of Canada is not relieved of any civil liability to which Her Majesty in right of Canada may otherwise be subject. The Crown is not relieved of liability for which it would otherwise be subject.
141.1(1) A health and safety officer shall conduct an inspection of the work place in the presence of
(a) an employee member and an employer member of the work place committee; or
(b) the health and safety representative and a person designated by the employer.
If a health and safety officer decides to conduct an inspection of the work place, they are required to conduct it in the presence of an employer and an employee member of the work place committee. If there is no such committee, the inspection must be conducted with the health and safety representative and a person designated by the employer.
141.1(2) A health and safety officer may proceed with an inspection in the absence of any person mentioned in subsection (1) if that person chooses not to be present. As seen earlier, the health and safety officer may proceed with an inspection without the presence of the work place parties if they choose not to be present.
145.(1.1) A health and safety officer who has issued a direction orally shall provide a written version of it
(a) before the officer leaves the work place, if the officer was in the work place when the direction was issued; or
(b) as soon as possible by mail, facsimile or other electronic means, in any other case.
If a direction is issued orally in the work place, a health and safety officer must provide the employer with a written copy of the direction before leaving the work place. If the direction was issued outside the work place, then the officer must provide the employer with a hard copy by mail, or electronic means, as soon as possible.
145.(2.1) If a health and safety officer considers that the use or operation of a machine or thing by an employee, a condition in a place or the performance of an activity by an employee constitutes a danger to the employee or to another employee, the officer shall, in addition to the directions issued under paragraph (2)(a), issue a direction in writing to the employee to discontinue the use, operation or activity or cease to work in that place until the employer has complied with the directions issued under that paragraph. This provision requires that if a direction was issued to an employer because of a situation of danger, the health and safety officer must also issue a direction to an employee to stop using a machine or thing, or performing an operation or activity which may be dangerous, until the employer has complied with the direction issued.
 
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