Health and safety policy / Health and safety representatives – Small employer – Fixed workplaces Legislative Interpretations

Question 1:
A medium-sized manufacturing company near my plant that employs approximately 35 employees has advised me that there is a legislative requirement for a health and safety policy and that the policy has to be filed with WorkSafeNB.

I operate a welding shop that employs seven full-time and two part-time employees. Is there a legislative requirement that I also develop a health and safety policy to be filed with WorkSafeNB and, if yes, does the legislation outline the requirements of such a policy?

Answer:
Section 8(1)of the Act requires that larger employers (those with 20 or more employees) establish a health and safety policy and file a copy with WorkSafeNB.

The provisions for the requirements of a health and safety policy for employers that have less than 20 employees are found in Sections 17(1) and 17(2) of the Occupational Health and Safety Act.

Subsection 17(1) requires that smaller employers (those with between five and 19 employees) also establish a health and safety policy which needs to set out the responsibilities of the employer, supervisors and employees. Unlike section 8 (1) you are not required to file a copy with WorkSafeNB. That being said, you are free to voluntarily submit your policy with WorkSafeNB and subject to 17(2), designate a health and safety representative should you choose to do so. Subsection 17(2) states that where the nature of the employment presents a high risk to an employee’s health and safety, WorkSafeNB can step in and require that the health and safety policy that is required under 17(1) include a health and safety representative.

The effect of these subsections is that all employers with between five and 19 employees must establish a policy. That policy may include provision for a health and safety representative.

Subsection (2) allows WorkSafeNB to require that the health and safety policy established under (1) have a provision for a health and safety representative when high risk conditions are found at the workplace.

While high risk is not defined in the Act, factors that could result in a workplace being identified as “high risk” include a high accident rate, being issued numerous orders and stop work orders, employee health and safety complaints and work refusal as a result of unsafe working conditions or a combination of some or all of the issues noted.

Finally, the legislation does not prescribe the contents of such a policy except to set out the responsibilities of the employer, supervisors and employees. However, WorkSafeNB has developed guidelines to help workplaces develop such a policy. The Guide to Workplace Health and Safety Programs provides information on developing a health and safety policy.

If a health and safety representative is required, the employees will elect their health and safety representative and you as the employer will have to post the name of the elected health and safety representative in a prominent place at your workplace.

Question 2:
My Company is a small mechanic shop (between 5 and 19 employees) and I was ordered by WorkSafeNB to designate a health and safety representative because of my high accident record. What would be the role of this person and what training (if any) is required for the designated representative?

Answer:
As per section 18(1), the health and safety representative can do anything that the committee may do under section 15. Depending on the role the health and safety representative will undertake, the employer must ensure the rep is adequately trained. In order to meet this obligation, the educational training prescribed by regulations for joint health and safety committees and health and safety representatives may be required in addition to any other training that the employer considers necessary.

Referenced legislation
8(1) Every employer with 20 or more employees regularly employed in the Province shall establish a written safety policy, in consultation with his or her employees.

17(1) Subject to subsection (2), every employer with not fewer than five and not more than nineteen employees regularly employed at a place of employment shall establish a safety policy in respect of that place of employment which shall set out the responsibilities of the employer, supervisors and employees and which may include provision for a health and safety representative.

17(2) Where the nature of employment at a place of employment presents a high risk to the health and safety of employees or where the accident record of a place of employment is higher than is normal for that place of employment or for similar places of employment, the Commission may require an employer to establish and file with the Commission a safety policy that includes provision for a health and safety representative.

17(3) Where a safety policy established under subsection (1) or (2) includes provision for a health and safety representative, the employees shall elect a health and safety representative.

17(4) The employer shall post the name of the elected health and safety representative in a prominent place or places at the place of employment.

18(1) A health and safety representative may do anything that a committee may do under section 15.