2.2 Rights and Responsibilities

Occupational health and safety legislation consists of rights and responsibilities. Let us look at the foundation of health and safety the internal responsibility system and explore the topic of due diligence. In addition, we will take a closer look at the rights and responsibilities of employers, employees, supervisors and joint health and safety committees.

The Internal Responsibility System (IRS)

Canadian OHS is based on the Internal Responsibility System (IRS). The IRS assumes workers and employers are responsible for workplace health and safety. Employers must take steps to ensure that workplaces are as safe as reasonably practicable.[1] Employers are also required to advise workers of hazards and to require workers to use mandated safety equipment. The decision by governments to give employers the power to determine how to address workplace hazards bolsters employers’ broader management rights to control and direct work.

It can be difficult for employers to know when they have met their duty to make work as safe as reasonably practicable. Meeting the reasonably practicable standard means taking precautions “that are not only possible but also suitable or rational, given the particular situation.”[2] The generally accepted test is that of due diligence.

Due Diligence

Due diligence is taking reasonable precautions and steps to prevent injury, given the circumstances. It is assessed using a three-part test:

  1. Foreseeability: Reasonable employers are expected to know about the hazards of their business. Injuries that arise from events that other operators in the industry expect might occur are foreseeable events.
  2. Preventability: Reasonable employers are expected to take steps to prevent injury. The normal steps include identifying hazards, preparing and enforcing safe working procedures, training and monitoring worker safety, and ensuring compliance with safety procedures. Injuries that arise because an employer did not take these steps are preventable injuries.
  3. Control: Reasonable employers are expected to act on hazards they can control. Injuries that arise from such hazards suggest the employer failed to control these hazards.[3] 

Employers who have taken steps to address the hazards within their control to prevent foreseeable injuries have exercised their due diligence. This matters for two reasons. First, due diligence prevents injuries by controlling hazards. Second, if an injury occurs, employers who have completed the steps can use this due diligence as a defence to avoid penalties under OHS legislation.

Three Rights of the Worker

To offset the power of employers under the IRS, governments have granted workers three safety rights:

  1. Right to know: Workers have a right to know about the hazards they face in their workplace. While many hazards are readily apparent, chemical and biological hazards may not be. The right to know has given rise to systems such as the Workplace Hazardous Materials Information System discussed below, which provides workers with information about hazards materials and their safe handling.
  2. Right to participate: Workers have the right to participate in workplace health and safety activities. Participation most often occurs through joint health and safety committees (JHSCs) but can be through other means. 
  3. Right to refuse: Workers have the right to refuse unsafe work. The right to refuse represents one of the few instances where workers can disobey their employer. A refusal requires employers to investigate and remedy unsafe work. Although the right to refuse sounds like a powerful right, it is one workers rarely use.

Employer Responsibilities

 Employers have specific responsibilities when it comes to health and safety legislation. In Ontario, for example, some of the employer responsibilities include:

  • Establish and maintain a health and safety committee or cause workers to select at least one health and safety representative.
  • Take every reasonable precaution to ensure the workplace is safe.
  • Train employees about any potential hazards and in how to safely use, handle, store and dispose of hazardous substances and how to handle emergencies.
  • Ensure workers know how to safely and properly handle the equipment.
  • Make sure workers use any necessary personal protective equipment.
  • Immediately report all critical injuries to the government department responsible for OH&S.
  • Appoint a competent supervisor who sets the standards for performance, and who ensures safe working conditions are always observed.

Employee Responsibilities

There exists a misperception that only the employer has responsibilities under occupational health and safety legislation. Employees, however, have specific responsibilities under the law. Some of the employee responsibilities under the Occupational Health and Safety Act include:

  • Work in compliance with OH&S acts and regulations.
  • Use personal protective equipment and clothing as directed by the employer.
  • Report workplace hazards and dangers to the supervisor or employer.
  • Work safely as required by the employer and use the prescribed safety equipment.
  • Tell the supervisor or employer about any missing or defective equipment or protective device that may be dangerous.

Supervisor/Manager Responsibilities

Individuals with titles such as supervisor or manager have specific responsibilities under occupational health and safety legislation. In Ontario, for example, supervisors and managers are to:

  • Make sure workers work in compliance with OH&S acts and regulations.
  • Make sure that workers use prescribed protective equipment and/or devices.
  • Advise workers of potential and actual hazards.
  • Provide workers with written instructions as to the measures and procedures to be taken for protection of the worker.
  • Take every reasonable precaution in the circumstances to protect workers [4]

Joint Health and Safety Committee

Joint health and safety committees are an important mechanism by which workers exercise their right to participate in occupational health and safety matters. Joint health and safety committees are comprised of employer and worker representatives who regularly meet to discuss health and safety issues. The “logic” of these committees is that they marry the job-specific knowledge of workers with the broader perspective of managers to identify and resolve OHS issues. The legislative requirements for JHSCs vary by jurisdiction and organization size. Unions may also negotiate mandatory JHSCs into their collective agreements.

A joint health and safety committee may not be required in smaller workplaces. Be sure to refer to your federal, provincial or territorial legislation to determine if your workplace needs a safety committee or a safety representative. Here is a quick reference from the Canadian Centre for Occupational Health and Safety:

CCOHS: Joint Health and Safety Committee – What is a Joint Health and Safety Committee?

Among the tasks joint health and safety committees perform are conducting hazard assessments, providing education and training, and investigating incidents. While a joint health and safety committees can propose hazard mitigation strategies, occupational health and safety legislation empowers the employer to determine how to control such hazards. In this way, joint health and safety committees are advisory rather than decision-making committees. Research suggests that worker participation in occupational health and safety tends to be more effective in larger workplaces and in the presence of trade unions.[5] Workers in smaller firms and in workplaces reliant upon various subcontracting and outsourcing arrangements are less likely to have access to joint health and safety committees.[6] 

How workers behave on joint health and safety committees can influence the effectiveness of worker participation. Worker representatives who collect their own information about occupational health and safety assert their knowledge about hazardous conditions, mobilize their co-workers to support demands for improvements, and propose alternative solutions appear to be more effective than more passive representatives.[7] The effectiveness of this more activist orientation suggests employer occupational health and safety behaviours can be shaped by workers’ behaviour in the workplace, as well as by external enforcement by the state.

“Legislative Framework of Injury Prevention and Compensation” in Health and Safety in Canadian Workplaces by Jason Foster and Bob Barneston, published by AU Press is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, unless otherwise noted.

  1. For example, Section 3-8(a) of the Saskatchewan Employment Act (2013) states: “3‐8 Every employer shall: (a) ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers;” ↵
  2. Government of Canada, Labour Program. (1993). Labour Standards Interpretations, Policies and Guidelines 808/819-IPG 057 (p. 4). https://www.canada.ca/content/dam/esdc-edsc/documents/programs/laws-regulations/labour/interpretations-policies/057.pdf ↵
  3. LeBlanc, B. A. (n.d.). Labour Standards and Equal Pay. https://www.canada.ca/content/dam/esdc-edsc/documents/programs/laws-regulations/labour/interpretations-policies/057.pdf ↵
  4. Canadian Centre for Occupational Health and Safety. (n.d.). OSH Answers Fact Sheets: OH&S Legislation in Canada - Basic Responsibilities, https://www.ccohs.ca/oshanswers/legisl/responsi.html. Reproduced with permission. ↵
  5. Nichols, T., & Walters, D. (2009). Worker representation on health and safety in the UK – Problems with the preferred model and beyond. In D. Walters & T. Nichols (Eds.), International perspectives on representing workers’ interests in health and safety (pp. 19–30). Palgrave Macmillan. ↵
  6. Johnstone, R. (2006). Regulating occupational health and safety in a changing labour market. In C. Arup, P. Gahan, J. Howe, R. Johnstone, R. Mitchell, & A. O’Donnell (Eds.), Labour law and labour market regulations (pp. 617–634). Federation Press. ↵
  7. Hall, A., Forrest, A., Sears, A., & Carlan, N. (2006). Making a difference: Knowledge activism and worker representation in joint OHS committees. Relations Industrielles/Industrial Relations, 61(3), 408–436. ↵

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Human Resources for Operations Managers Copyright © 2022 by Connie Palmer is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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