MOU Between HRD and TSB

BETWEEN: The Minister of Employment and Immigration and Minister of Labour, as Minister responsible for the Department of human Resources Development, hereinafter referred to as the Minister or HRD AND: The Canadian Transportation Accident Investigation and Safety Board, hereinafter referred to as the TSB

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  1. Introduction
  2. Definitions
  3. Application
  4. Notification
  5. Exchange of Information
  6. Concurrent Investigations
  7. Media Relations
  8. Means of Conflict Resolution
  9. Consultation
  10. Amendments
  11. Termination

INTRODUCTION

Whereas the Canadian transportation Accident Investigation and Safety Board Act, R.S.C. (1985) Chapter C-23.4 (CTAISB Act) establishes the TSB with the mandate to advance transportation safety; its mandate being carried out by investigating transportation occurrences in order to make findings as to their causes and contributing factors and by making recommendations to eliminate or reduce safety deficiencies as evidenced by those investigations;

Whereas the Minister of Employment and Immigration and Labour is solely and primarily responsible to Parliament for the enforcement and administration of the Canada labour Code, Part II, (Code) Occupational Safety and Health;

Whereas this responsibility resides with the Minister of Employment and Immigration and Labour regardless of the regulatory officials involved:

Whereas notwithstanding any other Act of Parliament or regulations made thereunder, the Code applies to, and in respect of, employment upon or in connection with the operation of any federal work, undertaking or business and to and in respect of the Public Service of Canada as defined in the Public Service Staff Relations Act, RS.C. (1985)  c. P-35 (as amended) ;

Whereas the policy objective of federal OSH legislation as started in the Code, is “ to prevent accidents and injury to health arising out of, linked with, or occurring in the course of employment” ‘

Whereas it is not the function of the TSB to assign fault or determine civil or criminal responsibility;

Whereas Safety Officers designated pursuant to Section 140 of the Code may, in discharging their mandate under Part II thereof, conduct investigations, for the purposes of:

  1. Determining if there are any violations to Part II of the Code and the regulations thereunder, directing the employers and employees as required and initiating corrective measures or prosecution action where appropriate; and
  2. Investigating refusal to work cases and deciding if a danger situation exists.

Whereas the powers of the TSB Investigator pursuant to Section 19 of the CTAISB Act and those of HRD Safety Officers pursuant to Section 141 of the Code may overlap.

Whereas the parties are desirous of entering into an agreement for the exchange of information on a regular basis and the coordination of activities as they relate to transportation occurrences for the purpose of enabling both organizations to fulfil their respective mandates.

Whereas Section 17 of the CTAISB Act requires the TSB to make all reasonable efforts to enter into an agreement with the Minister providing for the coordination of their activities with respect to transportation occurrences, including investigation procedures and practises and requirements for reporting occurrences and providing for conflict resolution procedures.

Whereas both HRD and the TSB recognize the desirability of cooperation between both parties without compromising the independence of either party with respect to the regulatory functions of the Government.

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THE PARTIES HERETO MUTUALLY AGREE TO THE FOLLOWING TERMS AND CONDITIONS:

1.DEFINITIONS

In this Memorandum of Understanding, hereinafter referred to as the Memorandum, the following words, unless a contrary intention appears, have the following meaning:

COORDINATOR means an official appointed by either party as the point of liaison for the purpose of exchanging information regarding an occurrence where an observer is not appointer.

INVESTIGATOR means the TSB investigator appointed under Sections 9 and 10 of the CTAISB Act and designated by the appropriate Director of Investigation to conduct the investigation of an occurrence.

OCCURRENCE means an aviation occurrence, a railway occurrence, a marine occurrence or a commodity pipeline occurrence as defined in the CTAISB Act.

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2.APPLICATION

This Memorandum applies to all occurrences when affecting a federal work, undertaking or business as defined in the Code or when affecting activities within the Public Service as defined in the Public Service Staff Relations Act, R.S.C. (1985) c. P-35.

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3.NOTIFICATION

2.2

Upon being notified of an occurrence, the appropriate HRD regional office, in accordance with Subsection 22(1) of the CTAISB Act, will:

  1. Forthwith provide the TSB regional office, by telephone, with particulars of the occurrence;
  2. After complying with Subparagraph (a), forthwith advise the appropriate TSB regional office of any investigation that HRD plans to conduct and of any investigation that HRD plans to conduct and of any remedial measure or action that HRD plans to take and the scope thereof.

2.3

Upon being notified of an occurrence in which the Minister has a direct interest, the TSB, in accordance with Subsection 23(1) of the CTAISB Act, will:

  1. Forthwith provide the appropriate HRD regional office, by telephone, with particulars of the occurrence;
  2. After complying with Subparagraph (a), forthwith advise the appropriate HRD regional office of any investigation it plans to conduct and the scope of the investigation.

2.4

For the purpose of paragraphs 3.2 and 4.5 of this Memorandum, and occurrence in which the Minister has a direct interest refers to:

  1. Any hazardous occurrence reported to the TSB that is required to be reported to a Safety Officer under the Regulations made pursuant to the Code; and
  2. Any occurrence that, because of the public interest it might generate, should be brought in the Minister’s attention.

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4.EXCHANGE OF INFORMATION

4.1

Upon being notified that one party will investigate an occurrence or that HRD will take remedial measures, the other party will advise the party conducting the investigation or taking the remedial measures of whether it intends to appoint an observer and, if so, of the name of the observer.

4.2

Where an observer is not appointed, HRD or the TSB, as the case may be, will assign an official as coordinator.

4.3

Where an observer is also a Safety Officer, he shall inform the TSB of his enforcement authority and shall not participate in the interview of witnesses carried out by the TSB nor shall he be entitled to examine statements taken by the TSB.  This does not, however, preclude that observer from seeking interviews with the witnesses for the purpose of the Code.

4.4

The provision of data or services requested by the party investigating the occurrence or taking remedial measures will be through the other party’s observer or coordinator.

4.5

Each party will keep the other informed of any significant progress in its own investigation if the other party is also investigating the same occurrence or, upon request, if one party has expressed a direct interest in the subject matter of the investigation of the other.

4.6

A Safety Officer will disclose to the TSB evidence or the results of any inquiry made for the purpose of protecting the health and safety of employees; disclosure will be effected in accordance with any applicable legislation, including section 144 of the Code.

4.7

The observer appointed by the Minister will have the privileges provided for in Section 10 of the TSB Regulations; the HRD coordinator will be entitled only to factual information related to the occurrence.

4.8

All exchange of information will be in accordance with the Access to Information Act, the Privacy Act, the CTAISB Act and the Code, including Section 144 of the Code.

4.9

The TSB will notify HRD, through HRD’s coordinator or the observer appointed by the Minister, of any plans to disassemble products or equipment to provide an opportunity for appropriate specialists to attend.

4.10

After having determined that the Minister has a direct interest in its findings in accordance with Paragraph 3.3, the TSB will send a copy of the draft report of its findings and safety deficiencies and of the final report on its findings and recommendations to the Minister and the appropriate Regional Director of HRD.  The draft report will be treated on a confidential basis by HRD officials in accordance with Subsection 24 (3) of the CTAISB Act.

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5.CONCURRENT INVESTIGATIONS

5.1

In the same event that both parties are investigating the same occurrence for their respective purposes, each of them will, in accordance with Subsection 15 (1) of the CTAISB Act and Section 9 of the TSB Regulations, protect the evidence for the other and more specifically, before disturbing anything on the occurrence site, ensure that the conditions of the occurrence site and the evidence contained therein are recorded by the best means available and inform the other party of what has transpired.

5.2

Each party will keep the other informed of any decision that may impact on the other party’s investigation and more specifically of the following:

  1. The direction given by a Safety Officer, pursuant to Paragraph 141 (1) (e) of the Code, that anything or any place not be disturbed
  2. The prohibition or limitation of access to an occurrence site by the investigator pursuant to Subsection 19 (6) of the CTAISB Act.

5.3

In the event that both parties are investigating the same occurrence for their respective purposes, each party will consult with the other before releasing the occurrence site.

5.4

It is understood that Section 14 of the CTAISB Act does not preclude safety officers from investigating occurrences under the Code.

5.5

Notwithstanding Subsection 19 (6) of the CTAISB Act, the TSB will permit a Safety Officer to conduct an inspection that may be required to ensure the safety of all parties on site, and to respond to a work refusal under the Code.

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6.MEDIA RELATIONS

6.1

In the event that both parties are investigating the same occurrence for their respective purposes, the provision of information to the media will be coordinated between both parties.

6.2

It is agreed that each party will have the authority to release information concerning its respective jurisdiction, but only the TSB may release information pertaining to the causes and contributing factors of an occurrence, that the TSB has investigated or has decided to investigate.

7.MEANS OF CONFLICT RESOLUTION

7.1

Issues arising out of this Memorandum which cannot be resolved at the staff level will be referred to the Chief Executive Officers of both parties or their respective delegate for resolution.

8.CONSULTATION

8.1

At least once a year, both parties will meet to discuss their working relationship, investigations in progress and the need to amend this Memorandum.

  1. The TSB will be responsible to organize and coordinate the annual consultation.


9.AMENDMENTS

9.1

Proposals for changes to the Memorandum may be made at any time by either party and appropriate amendments made as may be agreed upon.

9.2

Both parties will make all reasonable efforts to accommodate any proposal for changes made pursuant to Section 9.1 .

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10.TERMINATION

10.1

Either party may terminate this Memorandum upon notice of such termination having been given in writing to the other party at least three months in advance.

IN WITNESS WHEREOF the parties hereto have executed this Memorandum in the City of ________________________, Province of______________________ on this _______ day of _________________ 19______.


Canadian Transportation Accident Investigation and Safety Board

Original signed by_____________
Chairperson
The Minister of Employment and Immigration and Minister of Labour
Original signed by
Lloyd Axworthy

A signé l’original_________________MAR 17, 1994

Minister

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