OUR GREAT MINDS

    by Denis Mahoney

    New East Coast Offshore OH&S Regime: 3 Key Changes Add Clarity

    The federal Offshore Health and Safety Act took effect on June 19, 2014, amending the Newfoundland & Labrador and Nova Scotia Accord Acts, addressing the jurisdictional uncertainty of the previous occupational health and safety (OHS) framework and establishing a new OHS regime for the East Coast offshore. The Offshore Health and Safety Act repealed the existing OHS regime in the Accord Acts, which relied largely on provincial legislation applicable in the offshore areas governing such things as human rights, labour standards, and workers’ compensation and health. In its place, the Act added a new “Part III.1 – Occupational Health and Safety” to the Accord Acts, vesting sole authority for OHS in the Accord Acts.

    The overall effect of the key changes is the clarification of the roles and responsibilities of key stakeholders: the federal and provincial governments, offshore petroleum boards, operators, employers, employees and other key parties in the OHS regime. Here are the three changes that are key to achieving this clarity:

    1. OHS Officers’ Powers.

    Offshore board safety officers have new and comprehensive powers to investigate and inspect. The Act creates an “occupational health and safety officers” role responsible for occupational health and safety for the purposes of administration and enforcement of Part III.1.  The legislation gives health and safety officers new and comprehensive powers to further enhance safety, such as the ability to enter/inspect a place of work, pose questions, conduct tests, take samples, remove anything for examination, take photographs or measurements, use any computer system, prepare a document, use copyright equipment, be accompanied by an individual, meet in private with any individual (with their agreement), inspect living quarters (with consent or without consent in certain circumstances),  and examine any aspect of safety and security. It ensures that occupational health and safety officers, special officers, conservation officers and operational safety officers have the same powers for the administration and enforcement of the Accord Acts.

    2 .Workers In Transit.

    It’s now clear that the OHS regime applies to workers who are in transit to, from or between workplaces in the offshore area, as well as to workers at offshore workplaces. The new Act also requires that any occupational health and safety regulations applicable to the transportation of persons who are in transit to, from or between workplaces in the offshore areas must be made on the Minister of Transport’s recommendation.

    3. Jurisdictional Clarity.

    The new Act delineates which federal or provincial legislation applies to particular circumstances in offshore workplaces in an effort to clarify jurisdictional uncertainty:

    • Federal legislation that doesn’t apply to offshore workplaces: Canada Labour Code Parts II and III; the Canadian Human Rights Act; and the Non-smokers’ Health Act
    • Provincial legislation that does apply to offshore workplaces as long as it’s not inconsistent with the new OHS regime: social legislation addressing matters such as human rights, labour standards, and workers’ compensation and health
    • Provincial industrial relations legislation that does apply to offshore workplaces: marine installation or structure in the offshore are that is, or is becoming, attached or anchored in the seabed; a workboat used by an employee and operated from a marine installation of structure for maintenance or repair work; and an area where an employee is conducting diving operations. Industrial relations for all other marine installation or structures is governed by federal legislation (Part I of the Canada Labour Code).
    • Provincial social legislation (including OHS legislation) does apply to Canada-Newfoundland & Labrador Offshore Petroleum Board (C-NLOPB) employees.

    Here are some additional changes the Act makes to the East Coast Offshore regime:

    • The provincial minister responsible for OHS can designate a special officer in certain circumstances if action is required to avoid a serious risk to the health and safety of employees within the near future that can’t be avoided through the exercise of other existing powers. The federal Minister of Natural Resources must be satisfied that such a serious risk exists and that the designated individual is qualified to exercise the powers and carry out the duties and functions of the position.
    • The C-NLOPB is authorized to publicly disclose information related to OHS if it considers it to be in the public interest.
    • The Hazardous Materials Information Review Act is amended to enable health and safety officers to get privileged information and enable employers subject to the Accord Acts to apply to the Chief Screening Officer for exemptions from disclosure requirements in the same manner as employers under the Canada Labour Code.
    • The Access to Information Act is amended to prohibit the disclosure of certain information.
    • The Canada Labour Code is amended to closely follow the Accord Acts respecting the time frame to institute proceedings and prohibitions on sharing information and testimony.
    • Every operator must establish a workplace committee for each of its workplaces, or to designate an OHS coordinator if the workplace is established on a temporary basis of 6 months or less. The committee’s duties, composition and meeting schedule is prescribed.
    • The employer is under a duty to develop an occupational health and safety program and code of practice that meet the requirements of the Accord Act. The employer must also comply with the additional duties. Operators and employers must communicate certain information to employees and committees.
    • There are several new offences created.

    Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Energy & Natural Resources Team or our Occupational Health & Safety Team to discuss this topic or any other legal issue. Read more McInnes Cooper Legal Publications at www.mcinnescooper.com/publications/. Subscribe at www.mcinnescooper.com/subscribe/.

    McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2015.  All rights reserved.

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