Am I a supervisor? Legislative Interpretations

1 “supervisor” means a person who is authorized by an employer to supervise or direct the work of the employer’s employees

“employee” means”

(a) a person employed at or in a place of employment, or

(b) a person at or in a place of employment for any purpose in connection therewith;

There are three important parts to the definition of supervisor:

1. Authorized by an employer means that the employer has given the supervisor the responsibility to supervise and direct the work of others. It would normally exclude informal or ad hoc designations such as “I have to leave for one hour, you’re in charge,” unless there is evidence that the designated employee has:

• been authorized by the employer to redirect the workflow or suspend work if necessary, to ensure employee health and safety;
• been provided with sufficient knowledge to carry this function; and,
• accepted the responsibility.

Look for clues such as titles, increased salary and “acting” designation. Examples include owner, manager (acting manager), director (acting director), superintendent, overseer, foremen, charge or head nurse, and department head. It could also include lead hands and experienced employees who have been designated by the employer to mentor or supervise the work of others.

2. Supervise or direct the work can include setting goals, providing instruction, organizing work schedules, assigning tasks, solving daily problems, enforcing rules, checking performance, being accountable for quality and production of the team, etc.
3. The employer’s employees – a supervisor’s responsibilities apply to employees who work for the same employer as them. There are cases where employees are hired to do work for the employer through an external party such as a temporary employment agency, labour broker contract or contractor/sub-contractor. In these circumstances (and as provided for in part (b) in the definition of employee), a supervisor’s responsibilities could apply to those employees if the supervisor’s employer requires those employees to work under the supervision, direction and/or control of the supervisor.

Question

In my job, I am responsible for quality. In doing so, I direct how work is conducted to ensure that quality standards are met, but I am not responsible for health and safety. According to the OHS Act, am I a supervisor?

Answer

If you have been authorized to direct the work of the employer’s employees without consulting their managing supervisor, then you are a supervisor and have the legal obligations under section 9.1 of the OHS Act. In this situation, your employer also has the obligation under section 9(2)(c.3) to ensure you have sufficient knowledge to safely direct the work of those employees.

In some circumstances, it is possible to be primarily responsible for the quality of work performed without having the authority to direct the work of others and therefore it is important to seek clarification from your employer regarding the limitations of your authority.

Question

I work as a health and safety co-ordinator for my company. In my work, I conduct audits of work practices and do inspections to verify compliance with health and safety rules. As part of my job functions, I must stop any unsafe work I see and direct employees to correct unsafe acts. Am I a supervisor?

Answer

Your role description states that your employer has given you the authority (job function) to direct the employer’s employees when you see unsafe acts and conditions. Your work as health and safety co-ordinator therefore meets the definition of a supervisor under the OHS Act. Section 9.1(1) requires you to take every reasonable precaution to ensure your employees’ health and safety, comply with the Act and regulations and any WorkSafeNB order, ensure employees comply with the and regulations, and co-operate with the JHSC or health and safety representative (where there is one) and a WorkSafeNB health and safety officer.

Section 9.1(2) lays out a supervisor’s responsibility to acquaint employees with their work hazards and provide the necessary information and instruction to ensure their safety. These duties are a natural fit for a health and safety co-ordinator; however, it is shared with the employees’ managing supervisor. Managing supervisors cannot delegate their responsibilities outlined in section 9.1 to the health and safety co-ordinator. During an investigation, the circumstances will determine where the responsibility lays related to the specific unsafe act or condition.

Question

We frequently hire employees through a temporary employment agency. When they work in my department, my employer requires me to provide instructions on their tasks as well as check and correct their performance when necessary. Am I their supervisor under these circumstances?

Answer

There are situations where a supervisor would have legal obligations under the OHS Act for employees who work for a different company. Subsection (b) of the OHS Act definition of “employee” includes ‘a person at or in a place of employment for any connection therewith’. This means that a supervisor can have legal obligations for employees of different companies.

Each case will depend on its own specific facts. In your situation, the temporary employment agency employees are on your site and their work is being directed and controlled by you. As this employment situation is similar to a traditional supervisor/employee relationship, your responsibilities as a supervisor as outlined under the Act would apply to you.