Regulations Amending the Administrative Monetary Penalties (Canada Labour Code) Regulations: SOR/2021-142
Canada Gazette, Part II, Volume 155, Number 14
SOR/2021-142 June 17, 2021
CANADA LABOUR CODE
P.C. 2021-584 June 17, 2021
His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Labour, pursuant to section 270 footnote a of the Canada Labour Code footnote b, makes the annexed Regulations Amending the Administrative Monetary Penalties (Canada Labour Code) Regulations.
Regulations Amending the Administrative Monetary Penalties (Canada Labour Code) Regulations
Coming into Force
2 These Regulations come into force on the day on which the Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI) come 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.)
The proposed Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI) [the “Confined Spaces Regulations”] do not align with Schedule 1 of the new Administrative Monetary Penalties (Canada Labour Code) Regulations (the “AMPs Regulations”), which came into force on January 1, 2021.
The final Confined Spaces Regulations use a new section numbering format and create new obligations regarding work in confined spaces. Changes are needed to Schedule 1 of the AMPs Regulations to designate and classify new provisions and align with the new Confined Spaces Regulations. In the absence of Regulations Amending the Administrative Monetary Penalties (Canada Labour Code) Regulations (the “Regulations”), the Labour Program would not be able to issue an AMP for any violations of the Confined Spaces Regulations, leading to compliance and enforcement challenges related to provisions designed to protect the health and safety of workers.
The Labour Program seeks to promote and sustain stable industrial relations and safe, fair, healthy, equitable and productive workplaces within the federal jurisdiction. This mandate is partially achieved through the development and implementation of
- occupational health and safety (OHS) regulations made under Part II of the Canada Labour Code (the “Code”) to reduce work-related accidents and illnesses in federal jurisdiction workplaces; and
- labour relations regulations made under Part III of the Code to establish and protect workers' rights to fair and equitable conditions of employment.
Federal jurisdiction is defined in the Code and comprises approximately 8% of the Canadian workforce and includes banking; telecommunications; broadcasting; air, interprovincial rail and road transportation, excluding on-board employers and employees; shipping and related services; grain elevators, feed and seed mills; uranium mining; Crown corporations; and the federal public administration.
Employers under federal jurisdiction have a general obligation under Part II of the Code to ensure that the health and safety of every person they employ are protected while they are working. Employers have specific duties in regard to each workplace they control and every work activity under their authority. In order to meet this goal, workplace employees and employers are encouraged to work together to develop practices and policies and to assess and address occupational health and safety issues effectively and in a timely manner. In addition, employers are required to provide employees with the information, education, training and supervision necessary to ensure their health and safety at work.
On January 1, 2021, the new Part IV of the Code was brought into force to promote compliance with requirements under Part II (Occupational Health and Safety) and Part III (Labour Standards) of the Code. The AMPs Regulations designate and classify violations of provisions under the Code and all OHS regulations, making them subject to an AMP in cases of non-compliance. The AMPs Regulations designate appropriate violations for all OHS regulations made under Part II of the Code. Only designated violations can be subject to an AMP.
When amendments are made to Part II of the Code and its associated regulations, the schedules in the AMPs Regulations must also be amended to reflect any updates to obligations or provision sections and subsections. Designated and classified OHS provisions are listed under Schedule 1 of the AMPs regime; they include
- contraventions of specified provisions of the Code and associated regulations;
- contraventions of specified directions and orders; and
- failure to comply with specified conditions of a permit.
The AMPs Regulations specify the method used to determine the amount of an AMP in a given situation when issuing the notice of violation (NoV). The baseline penalty amount applicable to a violation varies depending on the type of person or organization believed to have committed a violation (referred to as “violator” for the purpose of this document) and the classification of the violation. Each designated violation is classified as either Type A, B, C, D or E, in order of increasing severity, according to the level of risk and/or the impact and significance of the violation, as outlined in Table 1.
|A||Related to administrative provisions.|
|B||Related to low-risk hazards that may result in a minor injury or illness that requires medical treatment but that does not result in disabling injuries.|
|C||Related to medium-risk hazards that may result in a serious injury or illness that prevents an employee from effectively performing their regular work duties.|
|D||Related to high-risk hazards that may result in serious injury or fatality.|
|E||Involves immediate life-threatening hazards or hazards known to cause latent occupational disease. These hazards give the employee little to no opportunity to avoid or minimize severe injury or death or occupational disease.|
Proposed amendments to the confined spaces provisions under Part XI of the COHSR were prepublished in the Canada Gazette, Part I, on June 20, 2020, for a period of 60 days.
The Confined Spaces Regulations contain key regulatory amendments to strengthen and simplify the health and safety provisions to protect those working in confined spaces. Amendments to Schedule 1 of the AMPs Regulations are needed to ensure the Confined Spaces Regulations are enforceable upon coming into force.
The objective of this regulatory package is to mitigate issues that would arise from discrepancies between the AMPs Regulations and the Confined Spaces Regulations.
The Regulations will amend Schedule 1 of the AMPs Regulations to update the designated violations for Part XI (Confined Spaces) to reflect the amendments to the Confined Spaces Regulations.
The Regulations update the current section references to reflect the new section numbers and also designate new provisions contained in the Confined Spaces Regulations. As well, since the Regulations seek to clarify the obligation in provisions, certain provisions have been reclassified to clearly indicate the level of risk and severity of impact, as described below.
Type A — Administrative provisions:
- Keep a record of all confined spaces, and keep it up to date and readily accessible to persons before entering a confined space as prescribed.
- Keep and make readily available any records of employees being trained as prescribed.
Type B — Low-risk provisions:
- Not applicable
Type C — Medium-risk provisions:
- Reclassification of provisions [type “A” (administrative provisions) to type “C” (medium-risk provisions)].
- Entry permit system must specify the length of time each permit is valid and require that a record be made of the name of the person entering the confined space.
- Entry permit system must specify the length of time each permit is valid and require that a record be made of the date and time of entry, the anticipated date and time of exit and the actual date and time of exit.
Type D — High-risk provisions:
- Survey the workplace to determine whether it contains confined spaces as prescribed.
- Identify each confined space.
- Appoint a qualified person to determine whether the confined space is a hazardous confined space.
- Ensure that the qualified person provides a list of confined spaces as prescribed.
- Ensure that there is a sign or other marker at the entrance of each confined space indicating that it is a confined space or hazardous confined space.
- Ensure that there is a sign or other marker at the entrance of each confined space indicating that it must not be entered without the authorization of the employer.
- Ensure that a qualified person uses, calibrates and maintains equipment used to test the atmosphere in hazardous confined space as prescribed.
- Establish emergency procedures that include a plan for reporting the emergency as prescribed.
- Establish emergency procedures that include a list of necessary resources to carry out procedures as prescribed.
- Ensure that every person with access to a hazardous confined space has emergency procedures and follows them as prescribed.
- Ensure that any person taking part in rescue operations has the prescribed protection and emergency equipment.
- Ensure continuous atmospheric monitoring when a hazardous confined space is occupied.
- Ensure that every person granted access to a hazardous confined space has the prescribed equipment.
- Ensure that any person who enters, exits or occupies a hazardous confined space complies with the prescribed procedures and uses the equipment as prescribed.
Type E — Life-threatening provisions:
- Ensure that every person granted access to a confined space has received instruction and training as prescribed.
The Regulations also seek to clarify provisions. Accordingly, a provision has been removed.
Exemption provision — Removed from Schedule 1 of the AMPs Regulations:
- When a confined space has not been entered in three years after its previous assessment and no entry is scheduled, an assessment of a confined space need not be carried out until it becomes likely that a person will enter the confined space in order to perform work.
Extensive consultations were undertaken with stakeholders in the development of both the AMPs Regulations and the Confined Spaces Regulations.
Key stakeholders represented within the Occupational Health and Safety Advisory Committee, with whom the Labour Program has been in contact with to solicit feedback on this proposal, include
- British Columbia Maritime Employers Association;
- Canada Post;
- Canadian Labour Congress;
- Canadian Trucking Alliance;
- Canadian Union of Postal Workers;
- Federally Regulated Employers Transportation and Communications;
- International Longshore and Warehouse Union;
- Public Service Alliance of Canada;
- Treasury Board Secretariat.
These stakeholders were contacted through an email signalling the Labour Program's intent to introduce these proposed regulatory amendments. The Labour Program has ensured that stakeholders had adequate time to share the proposed changes with their members. No comments were received from stakeholders for the proposed amendments. This consultation plan has taken into consideration that stakeholders have significantly reduced capacity for consultations due to COVID-19.
As this regulatory package is administrative in nature and is only meant to align the AMPs schedules with the final proposed confined spaces provisions, it is expected that there would be no additional benefit to prepublication in the Canada Gazette, Part I. Therefore, these Regulations were not prepublished.
Modern treaty obligations and Indigenous engagement and consultation
Due to the administrative nature of this regulatory proposal there will be no impact to workplaces in the federal jurisdiction. The AMPs Regulations will not change which workplaces are under federal jurisdiction and are subject to labour provisions under the Code. Indigenous bands and band councils are generally subject to the Code, including those with modern treaties or self-government status.
The Code continues to apply to modern treaty areas, as this area of jurisdiction has been “carved out” of areas of jurisdiction in treaties, meaning that it is not an area of jurisdiction for which a modern treaty holder would create their own legislation. Modern treaty holders would therefore apply the Code to applicable activities in their territory.
The options considered were maintaining the status quo or amending the existing provisions. These regulatory amendments are administrative in nature and will work to support the existing regulatory health and safety requirements set out under Part II of the Code and ensure efficacy of the AMPs regime.
Not making these regulatory amendments would result in discrepancies between Schedule 1 of the AMPs Regulations and the Confined Spaces Regulations, which would lead to a gap in the Labour Program's ability to ensure compliance with Part XI of the COHSR. Therefore, maintaining the status quo is not a feasible option and a regulatory amendment was selected.
Benefits and costs
The Regulations will not result in new compliance or administrative costs for stakeholders, as they do not impose new requirements on employers. The benefits of the Regulations are the mitigation of potential compliance and enforcement challenges that would result from misalignment between the Confined Spaces Regulations and the AMPs Regulations.
Small business lens
The small business lens does not apply to these amendments, as there are no costs to small businesses.
The one-for-one rule does not apply to these amendments, as there is no change in administrative costs or burden to businesses.
Regulatory cooperation and alignment
These regulatory amendments are necessary to achieve regulatory alignment between the Confined Spaces Regulations and the AMPs Regulations.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus (GBA+)
Due to the administrative nature of these regulatory amendments, there will be no impact to any groups based on factors such as gender, sex, age, language, education, geography, culture, ethnicity, income, ability, sexual orientation, or gender identity.
Implementation, compliance and enforcement, and service standards
These Regulations come into force on the day on which the Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI) come into force, but if they are registered after that day, they come into force on the day on which they are registered.
Compliance and enforcement
The Labour Program's compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. Statutory powers allow delegated officials to enter work sites and perform various activities to enforce compliance with the Code and the COHSR. Enforcement actions may range from the issuance of a written notice or a notice of violation and associated AMP, to further steps such as the initiation of prosecution. When amendments are made to the Code or to any of the associated regulations, the schedules in the AMPs Regulations must also be amended to reflect the amendments. Accordingly, these Regulations will not create new obligations for stakeholders, but instead will ensure that the Labour Program's compliance and enforcement regime is up to date.
Senior Policy Analyst
Occupational Health and Safety Policy Unit
Employment and Social Development Canada
165 De l'Hôtel-de-Ville Street