There
seems to be a controversy growing with respect to
the number
of workers employed at small businesses when it
comes to the inclusion of contracted independent
workers.
Just when you think you’re
following the law of the land to the ‘nth degree’, it
changes! It’s frustrating but when all is said and
done, employees' (full time or contractual) well being
is an important commodity! There seems to be a
controversy growing with respect to the number
of workers employed at small businesses when it
comes to the inclusion of contracted independent
workers.
This conundrum began in
Ontario with United Independent Operators, a small truck
brokerage and dispatch service that only employs 11
regular staff. Basically, their customers contract them
to transport aggregate products and United would in turn
contract approximately 30-140 independent truck drivers
to provide this service.
In July of 2004, one of those
independent truck drivers was crushed causing him a
critical injury. When MOL conducted an investigation,
it was found that the company did not have a joint health and
safety committee (JHSC) and was charged with failing to
ensure the establishment of a JHSC at its workplace.
Under Ontario’s Occupational Health and Safety Act, a
JHSC must be established when a workplace employs 20 or
more regularly employed workers, so United felt they
were complying with the Act since they only had 11
regular employees. Subsequent court proceedings in 2007
and 2009 found United acquitted and dismissed MOL’s
appeal; United was not obligated to establish a JHSC.
However, in January 2011, the
Ontario Court of Appeal ruled that the truck drivers
were “regularly employed”; the bottom line was “...the
Act, as a remedial public welfare statute intended to
guarantee a minimum level of protection for the health
and safety of workers, should be interpreted generously
rather than narrowly.” The judge decided that the
“regularly employed” was interpreted in too narrow a
fashion and in a way that was “inconsistent with the
objectives, purpose and legislative scheme of the Act.”
In the end, United had
complied with the Ministry’s order and established a
JHSC well before the Court had even issued its ruling.
At this point no one knows how difficult it’s going to
be to maintain a JHSC, when some members are on their
own schedules and usually off-site...only time will tell
in Ontario’s safety mosaic.
So head’s up for the small
businesses in Ontario and even across Canada...be
prepared...when it comes to OHS...”there is safety in
numbers”, the number of workers that is!
___________________________
Sources: Canadian Safety Reporter, March 2011