Vol. 149, No. 16 — August 12, 2015

Registration

SOR/2015-211 July 31, 2015

CANADA LABOUR CODE

Regulations Amending Certain Regulations Made Under the Canada Labour Code

P.C. 2015-1175 July 31, 2015

Whereas, pursuant to paragraphs 157(3)(a) (see footnote a) and (b) (see footnote b) of the Canada Labour Code (see footnote c), regulations of the Governor in Council under subsection 157(1) (see footnote d) or (1.1) (see footnote e) of that Act in respect of occupational safety and health of employees employed on ships, trains or aircraft, while in operation, are made on the recommendation of the Minister of Labour and the Minister of Transport or in case of employees employed on or in connection with exploration or drilling for or the production, conservation, processing or transportation of oil or gas in frontier lands, as defined in the Canada Petroleum Resources Act (see footnote f), are made on the recommendation of the Minister of Labour, the Minister of Indian Affairs and Northern Development and the Minister of Natural Resources, the latter taking into consideration any recommendations made by the National Energy Board in relation to the regulations;

And whereas the National Energy Board has not made any recommendation in relation to the regulations;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Labour, the Minister of Transport, the Minister of Indian Affairs and Northern Development and the Minister of Natural Resources, pursuant to sections 125 (see footnote g), 125.1 (see footnote h), 126 (see footnote i), 135.2 (see footnote j) and 157 (see footnote k) of the Canada Labour Code(see footnote l), makes the annexed Regulations Amending Certain Regulations Made Under the Canada Labour Code.

REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA LABOUR CODE

CANADA OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

1. The Canada Occupational Health and Safety Regulations (see footnote 1) are amended by adding the following before section 1.4:

1.31 These Regulations apply to any person who is not an employee but who performs for an employer to which these Regulations apply activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer, and every provision of these Regulations must be read accordingly.

ON BOARD TRAINS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

2. The On Board Trains Occupational Safety and Health Regulations (see footnote 2) are amended by adding the following before section 1.3:

1.21 These Regulations apply to any person who is not an employee but who performs for an employer to which these Regulations apply activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer, and every provision of these Regulations must be read accordingly.

OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

3. The Oil and Gas Occupational Safety and Health Regulations (see footnote 3) are amended by adding the following before section 1.3:

1.21 These Regulations apply to any person who is not an employee but who performs for an employer to which these Regulations apply activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer, and every provision of these Regulations must be read accordingly.

MARITIME OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

4. The Maritime Occupational Health and Safety Regulations (see footnote 4) are amended by adding the following before section 3:

2.1 These Regulations apply to any person who is not an employee but who performs for an employer to which these Regulations apply activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer, and every provision of these Regulations must be read accordingly.

AVIATION OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

5. The Aviation Occupational Health and Safety Regulations (see footnote 5) are amended by adding the following before section 1.2:

1.11 These Regulations apply to any person who is not an employee but who performs for an employer to which these Regulations apply activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer, and every provision of these Regulations must be read accordingly.

POLICY COMMITTEES, WORK PLACE COMMITTEES AND HEALTH AND SAFETY REPRESENTATIVES REGULATIONS

6. The Policy Committees, Work Place Committees and Health and Safety Representatives Regulations (see footnote 6) are amended by adding the following after section 1:

GENERAL APPLICATION

1.2 These Regulations apply to any person who is not an employee but who performs for an employer to which these Regulations apply activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer, and every provision of these Regulations must be read accordingly.

COMING INTO FORCE

7. These Regulations come into force on the day on which section 87 of the Economic Action Plan 2015 Act, No. 1, chapter 36 of the Statutes of Canada, 2015, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Economic Action Plan 2015 Act, No. 1 (Bill C-59) amended the Canada Labour Code (the Code) to extend occupational health and safety protections to all interns in workplaces under federal jurisdiction. In order to fully implement these protections, consequential amendments to six regulations made under the Code are required.

Background

Internships provide individuals with an opportunity to acquire knowledge and experience in the workplace. According to a Labour Program study conducted in 2014, internships are more prevalent in certain economic sectors, such as the arts, media, journalism, marketing and advertising, which coincide with some federally regulated industries (e.g. telecommunications and broadcasting). Some federally regulated private sector employers such as Air Canada, as well as Crown corporations such as the Canadian Broadcasting Corporation and the Canadian Museum of Nature, offer internships. In fiscal year 2014–15, there were an estimated 1 029 interns across the entire federal jurisdiction who were not in the workplace as employees, but were there in order to acquire knowledge and experience.

Generally, these interns are not considered employees and are therefore not afforded full occupational health and safety protections under the Code. However, certain protections under paragraph 125(l)l), (w), (y), and (z.14) of the Code, require that

These protections mean that federally regulated employers must provide occupational health and safety protections to everyone granted access to their workplace, regardless of whether they are employees or not.

In April 2015, the Government tabled Budget 2015, in which a commitment was made to strengthen protections under the Code for interns in federal jurisdiction. Following the Budget announcement, Bill C-59 was tabled, which included provisions to grant full occupational health and safety protections under the Code to interns who are not in a workplace as employees, but who are there in order to acquire knowledge and experience. Bill C-59 received royal assent on June 23, 2015.

Prior to Bill C-59, interns who were not in the workplace as employees, but were there to acquire knowledge and experience, were provided with some fundamental rights and protections, but did not have the same status as employees under the Code. Therefore, these interns were not able to refuse dangerous work, to participate in workplace health and safety committees, or to request information from the employer on matters related to workplace hazards or other relevant information.

Six regulations made under the Code provide further content to the occupational health and safety protections in Part II of the Code: the Canada Occupational Health and Safety Regulations (COHSR), the Aviation Occupational Health and Safety Regulations (AOHSR), the Maritime Occupational Health and Safety Regulations (MOHSR), the On Board Trains Occupational Safety and Health Regulations (OTOSHR), the Oil and Gas Occupational Safety and Health Regulations (OGOSHR), and the Policy Committees, Work Place Committees and Health and Safety Representatives Regulations. These regulations currently apply only to “employees” under federal jurisdiction, in the relevant workplaces (e.g. aviation, maritime, on board trains, and oil and gas), and thus may not include interns who are not in the workplace as employees, but are there in order to acquire knowledge and experience.

Objectives

The objective of the proposed Regulations Amending Certain Regulations Made Under the Canada Labour Code is to ensure alignment between the Code and the regulations.

Description

The proposed amendments would specify that the COHSR, the AOHSR, the MOHSR, the OTOSHR, the OGOSHR and the Policy Committees, Work Place Committees and Health and Safety Representatives Regulations apply to persons who are not employees, but who perform for an employer activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer. Every provision of the regulations would be read accordingly.

“One-for-One” Rule

The amendments to make the regulations consistent with the legislation will result in a negligible increase (i.e. approximately 0.0009%) in the number of individuals who have access to full occupational health and safety protections. The frequency with which employees have historically exercised their rights under federal occupational health and safety regulations is also low (e.g. approximately 0.007% of employees have historically exercised their right to refuse work in a given year), and federal jurisdiction employers already have processes in place (including administrative processes) for employees who exercise these rights. It is not anticipated that the regulatory amendments will result in a change in administrative burden on businesses, and the “One-for-One” Rule therefore does not apply.

Small business lens

The small business lens does not apply to this proposal, as pursuant to the regulatory amendments, businesses are expected to incur only minimal costs in certain limited instances (e.g. should an intern refuse work).

Consultation

Consultations on the legislative and regulatory amendments with key stakeholders, such as employee and employer representatives, were undertaken from late 2014 until May 2015. Overall, stakeholders confirmed their support for providing full occupational health and safety protections to all interns and are fully aware of the amendments to the Code and the proposed regulatory amendments.

Rationale

The proposed amendments ensure that amendments to the Code, made via Bill C-59, are reflected in regulations made under the Code. Interns who are not in the workplace as employees, but are there to acquire knowledge and experience will benefit from the proposed amendments given that they would be afforded the same occupational health and safety protections as employees. For instance, these interns will now have the right to refuse dangerous work and to request information from the employer on matters related to workplace hazards or other relevant information. Employers in the federal jurisdiction will benefit from enhanced clarity regarding their obligations and duties as an employer. Employers would further benefit from greater consistency; that is, the same occupational health and safety protections would be required for all interns and employees.

The proposed amendments will result in negligible costs for federal jurisdiction employers, given the small number of interns (1 029 in 2014–15) under federal jurisdiction who are not in the workplace as employees, but are there to acquire knowledge and experience, and the low cost associated with full protections provided by the proposed amendments. Any administrative costs would be negligible given that employers are already required to have practices, procedures and/or processes in place to address potential areas of concern with respect to health and safety issues at the workplace for their employees.

Implementation, enforcement and service standards

The proposed regulatory amendments will come into force upon the same day as which section 87 of the Economic Action Plan 2015 Act, No. 1 comes into force, or if registered after that day, on the day on which they are registered. Appropriate communications products and training will be provided to federal Labour Program officials (e.g. Health and Safety officers) who oversee the application of occupational health and safety protections to all interns, as part of their overall duties associated with prevention, protection and compliance. Moreover, as per sections 140 and 141 of the Code, the Minister of Labour or her delegates can also investigate any issues that may arise regarding non-compliance. As a result, enforcement mechanisms already exist to help ensure that full occupational health and safety protections are made available to interns. The Labour Program’s compliance policy outlines the proactive and reactive activities used by officials to ensure compliance with the Code and its regulations.

Contact

Pinki Anand
Policy Analyst
Occupational Health and Safety Policy Unit
Labour Program
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor
Gatineau, Quebec
K1A 0J2
Telephone: 613-762-5344
Email: pinki.anand@labour-travail.gc.ca