Canadian HR Reporter

September 19, 2016

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER September 19, 2016 2 NEWS Recent stories posted on Check the website daily for quick news hits from across Canada and around the world. WEB O N T H E ACROSS CANADA Saskatchewan Roughriders keeping close eye on player's social media Controversial lineman Khalif Mitchell on very short leash with CFL Harassment finding against ex- CRTC commissioner nixed due to 'witch hunt' Treated unfairly by investigator: Federal Court Unmet mental health-care needs costing Canadian economy billions Depression, anxiety costs add up to $50 billion per year Economy has biggest quarterly drop in 7 years But growth seen as likely to rebound later in 2016 Cape Breton store offers up land to people who work for business for 5 years 'e phone has been ringing off the hook' Average starting salaries to rise 3.1 per cent in 2017: Report Technology, finance, accounting lead the way AROUND THE WORLD Liberals looking at foreign workers for liquefied gas projects But Canadians must be considered first: Briefing note China service sector picks up in August, but new order growth eases: Caixin PMI New orders expanding, employment stabilizing Wal-Mart to cut 7,000 U.S. store back-office jobs Part of retailer's efforts to have more employees on sales floor VW avoids cutting staff hours in supplier dispute Asking workers to use accrued overtime, unused vacation Companies made deals that could run afoul of U.S. whistleblower rules Settlements sought to muzzle former employees GoCart service robot 'sneaks' through crowds Yujin Robot's autonomous GoCart Mini robot is small and smart enough to navigate through crowds using 3D sensors and laser scanners FEATURED VIDEO B.C. government, cops sign MOU to enforce OHS criminal charges Agreement maps out steps to take post-incident at mine sites BY MELISSA CAMPEAU THIS past April, the British Co- lumbia's Ministry of Energy and Mines and the B.C. police agen- cies signed a memorandum of understanding (MOU), locking in a protocol to ensure investiga- tion by police in the case of fa- talities and bodily harm at mine sites. While new, the MOU has a history that dates back at least a quarter of a century. On May 9, 1992, inside the Westray coal mine in Plymouth, N.S., a methane gas explosion killed 26 men trapped inside. No one was ever prosecuted for the disaster, although Justice Peter Richard, who investigated the event, noted in his report, "e Westray story is a complex mosa- ic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect." Following the disaster, the Unit- ed Steelworkers Union (USW) lobbied for an amendment to the Criminal Code, allowing employ- ers to be held criminally respon- sible if they failed to provide a safe work environment. It took 12 years but in 2004, Bill C-45, also known as the "Westray Bill," came into effect. is did not, however, open a floodgate of criminal prosecu- tions. During the 10 years follow- ing the introduction of Bill C-45, there were only nine prosecutions and only five of those cases result- ed in convictions or guilty pleas under the Criminal Code. e memorandum is the cu- mulative effect of the union being vocal about Bill C-45 not being enforced, said Adrian Ishak, a partner at Rubin omlinson in Toronto. "e MOU is largely procedur- al," he said. "It's really intended to create a context or environment where police are prompted to in- vestigate these matters." With the new agreement, steps to take when there is bodily harm or a fatality at a mining site are clearly mapped out. "This MOU deals with the bridging issue of jurisdictions," said Jason Beeho, a partner at Levitt in Toronto. "When an incident happens, the first responder is the Ministry of Energy and Mines. Now, with the MOU, there needs to be a col- laboration, a protocol in terms of determining how and when the police are brought into matters. "e MOU says clearly, 'is is how the collaboration is going to work.' ere is a structure and a protocol for how and when the police are going to interact with the provincial health and safety authorities." Impact on police involvement From a big picture, pragmatic point of view, there's a reason Bill C-45 has been invoked as infre- quently as it has been over the past several years, said Beeho. "e ministry inspectors know what they're doing; that is what they do. And you've got police departments who've got broad re- sponsibility for enforcing all kinds of criminal law, and who don't al- ways have the resources to pursue these things." In the end, the police have not historically been involved unless it's "the most serious, the most egregious health and safety issue." Until now, provincial health and safety authorities have had the discretion to determine when something is a police matter, said Beeho. The new MOU clearly spells out when police will step in. "It's not going to mean that every time someone has a fall or breaks an arm, the police are nec- essarily going to be on the scene," he said. "e ministry is still very much involved, still at the forefront, but the MOU formalizes and proce- duralizes when and how the po- lice become involved." If police are on-site more fre- quently, there's not universal agreement about what impact this would have on safety. "From a mining safety perspec- tive, I don't know that this makes anyone safer," said David Law, partner at Gowling in Ottawa. "Mining safety is the product of very specialized expertise, which the police will never have. It's hard to see what they bring to the table." From a public interest per- spective, if this agreement actu- ally pulls police into these mat- ters more often, "the question arises whether that's the best use of police time and money, when so many other things demand police attention," he said. "ere is always a tradeoff of public resources." Changes ahead? is agreement is intended to be a signal to B.C.'s mining industry that this is going to be taken more seriously on a go-forward basis, said Ishak. "It's one more signal to the min- ing industry that to the extent that they are taking health and safety casually, that they may want to sit up and take notice and start taking the steps they need to take." Day-to-day operations aren't likely to undergo significant changes, though. "is isn't the 1940s or 1950s," said Beeho. "Mining operations now are generally very sophisticat- ed operations, and they are gen- erally staffed by people who are knowledgeable about health and safety compliance and who take those obligations very seriously." Instead, the MOU is more likely to inspire operations to give their policies and procedures a fresh look, he said. To be deemed criminally negli- gent, the law has to demonstrate that an employer didn't meet the standards of due diligence of a reasonable person, said Ishak. "is will definitely be an op- portunity for employers to review what due diligence they've under- taken in order to address risks in the workplace and determine whether they are satisfied with the steps that they've taken in order to defend against any potential pros- ecutions under the Westray Bill." To some degree, the MOU's chief impact may be to raise awareness for all involved parties, said Beeho. "A lot of police departments and crowns are not familiar enough with Bill C-45 and what they can do with the legislation," he said. "What I don't see happening, though, is that prosecution under criminal law becomes the first tool out of the toolbox in terms of occupational health and safety. ere's a reason why the provin- cial authorities are so well-trained at what they do. e ministry is going to remain at the forefront of this, but to the extent that there's been a real paucity of prosecu- tions up to now, maybe this will start to change things." While this agreement looks like the criminal law may be applied more frequently, the agreement won't necessarily result in that, said Law. "It simply allows for police to take over the scene first which, frankly, they could do in any event, and they are often the first people at an accident site, anyhow." But it could be the first memo- randum of its kind in Canada, said Beeho. "It will be interesting to watch the extent to which the Steelwork- ers and other unions are now able to push for and introduce similar MOUs in other contexts."

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