V. Best Practices from Outside Ontario2017-03-03T18:35:39+00:00

Thus far this report has demonstrated the limitations of Ontario’s ES and OHS enforcement regimes. The next step in developing appropriate policy recommendations involves considering practices outside Ontario.

 

A.  Employment Standards Enforcement

The overarching critique of the ES enforcement regime herein relates to its reactive emphasis with limited use of proactive measures as well as complementary ‘softer’ measures focusing on voluntary compliance through self-regulation.  Recall that proactive enforcement is an approach aimed at preventing violations, that is, in the first instance heavily reliant on inspections and expanded investigations when violations are detected.[116] In turn, reactive enforcement is a strategy aimed at providing redress for workers dependent upon complaints to trigger regulatory intervention.  Finally, voluntary compliance is a strategy of self-regulation involving largely education and promotion in the first instance and negotiated settlements when complaints arise.[117]

Despite this critique of the reactive focus of ES enforcement, it is important to acknowledge that almost all regulatory regimes use a mix of hard law, soft law (e.g., employer awareness programs and self-regulatory techniques), economic incentives, worker participation, etc. and that this will continue to be the reality.  The crucial question is how these strategies are best combined to improve the quality of enforcement (i.e., to maximize the effectiveness of investigations and inspections, penalties and settlements, and the voice[118] of those affected): which ‘mixed’ models of enforcement have been found to be effective and which models have been found to be ineffective? Furthermore, what innovative community-based practices aimed at improved enforcement exist outside Ontario, including those in which workers’ advocates and unions play an active role in documenting and redressing violations? 

This section addresses these questions by surveying the research literature and government reports covering best practices in ES in Australia, the United Kingdom, and the United States, as well as in other Canadian jurisdictions.[119] It does so against the backdrop of problems identified with Ontario’s ES enforcement regime highlighted in earlier in this paper, in particular the four foremost concerns identified in the 2004 report of Ontario’s Auditor General (several of which were reiterated in its 2006 report): first, the limited number of proactive inspections undertaken by the Ministry despite its commitment to conduct them;[120] second, the lack of extended investigations[121] of substantiated claims to “cover other employees of the same employer to determine whether additional violations had taken place”[122] ; third, the failure to prosecute many such repeat offending employers;[123] and, fourth, the weaknesses in the collection of amounts in default owed to employee claimants by employers.[124]

In identifying best practices, the analysis is also attentive to other limits of reactive ES enforcement regimes identified in the research literature pertinent to the Ontario case.  Such shortcomings encompass, in the area of investigations and inspections, the outmoded nature of ES enforcement regimes with respect to the growth of subcontracting, specifically, the dearth of measures to address the dynamics of supply chains, especially enforcement in small firms operating at the bottom of these chains,[125] the infeasibility of achieving comprehensive coverage within a geographically-focused inspectorate since it requires inspectors to cover an inordinate amount of ground,[126], the relative inattention to high-risk industries,[127] the lack of offices of a workers’ advocate in most jurisdictions,[128]  and the limited interagency collaboration in sharing information pertinent to the detection of violations.[129]   In the area of penalties and settlements, deficiencies commonly identified include the tendency towards minimal penalties or sanctions; this shortcoming relates both to the relatively low level of settlements workers typically receive (i.e., settlements below those statutorily required as a consequence of  the mediation process) and, in the case of Ontario, as elsewhere, to the fact that employers “benefit from ‘voluntary compliance’ [of this sort] … because it keeps their violation off the enforcement track,” meaning that they are unlikely subjects of extended investigations in instances where they might occur, nor are they required to pay fines and administrative fees accompanying orders issued.[130] Finally, in the area of voice, countless studies point to the failure to provide for third party involvement in the enforcement process in most contexts, that is, from complaints procedures to investigative activities and settlements processes.[131]

A range of best practices from other jurisdictions are noteworthy in responding to problems associated with a principally old style reactive regime.  Consistent with the goal of cultivating an effective ‘mixed model’, in what follows these best practices are divided by those that are proactive, reactive, and voluntary.

 

1.  Proactive Practices

The greatest number of promising initiatives for replication fall in the proactive grouping, most of which relate to investigations and inspections and to voice. Many such initiatives emanate from the United States, where a great deal of experimentation is taking place in the context of low rates of unionization, and Australia, a context in which workers have confronted decollectivization in the last few decades, partly via the centralization of industrial relations, and the import of a North American style enterprise bargaining, cultivating greater reliance on ES as the main source of protection.

 (i)  Investigations and Inspections

With regard to investigations and inspections, a growing body of literature points to the importance of targeting high-risk industries and within these industries structures at the top.  Weil characterizes this strategy as critical to ‘strategic enforcement’ that applies four criteria to enforcement decisions – prioritization (i.e., choosing sectors carefully based on where intervention will have a high impact given factors such as the known level of violation and the vulnerability of the workers), deterrence (i.e., the threat of investigation), sustainability (i.e., the possibility of avoiding repeat offences), and system wide impacts – and he illustrates its effectiveness in several sectors characterized by large pyramidal structures (i.e., garment, fast food and hotels).[132] 

Responding partly to the impetus for change coming from Weil’s research findings, the Wages and Hours Division (WHD) of the U.S. Department of Labor began to embrace strategic enforcement in its activities under the Obama administration by ramping up inspections, increasing funding, and, most importantly, establishing a new plan/prevent/protect departmental  orientation which it describes as follows:

“[b]ased on the principle that employers and others must “find and fix” violations – that is, assure compliance – before a DOL investigator arrives at the workplace.  Employers and others in the Department’s regulated communities must understand that the burden is on them to obey the law, not the DOL to catch them violating the law.  This principle is at the heart of this new DOL worker protection strategy. DOL is going to replace “catch me if you can” with Plan/Prevent/Protect.”[133]

Through this strategy, the DOL is targeting “fissured industries” in which “employment decisions have been devolved from major employers to a complex network of smaller employers… typically operat[ing] in more competitive markets,”[134] specifically the hospitality, janitorial, construction, and agricultural sectors, for large enforcement sweeps as well as educative campaigns. 

For example, in 2011, the Department initiated an enforcement sweep focusing on the bottom of the fissured pyramid of production in the agricultural industry, beginning in South Florida and continuing up the Eastern Coast of the U.S., to increase compliance and inform workers of their rights under the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), the Fair Labor Standards Act (FSLA), and the Occupational Safety and Health Act’s Field Sanitation Standard.[135]  Under this initiative, by June,  it had conducted over 20 investigations, recovered $670,770 in back wages for approximately 600 agricultural workers, and assessed over $128,850 in penalties, finding violations such as “paying workers less than the federal minimum wage, and paying workers at packing sheds who did not qualify for the FLSA’s agricultural exemption ‘straight time’ for all hours worked, rather than time and one-half their regular rates of pay for overtime work hours as required.”[136]  This sweep involved sending teams of investigators to fields and packing houses to assess compliance by “facility owners, growers, farm labor contractors and all other business entities associated with these agricultural operations. Thorough inspections of transportation, field sanitation facilities, employment practices and pay records [were] conducted to ensure compliance with all applicable child labor and agricultural labor standards.”[137]  Additionally, the Department undertook surveillance activities involving interviewing workers at key sites, with numerous investigators covering large geographies on the same day and involving departmental lawyers early in preparing cases for future litigation.[138] 

On a smaller scale, there are jurisdictions in Canada beyond Ontario that report conducting proactive inspections. It is questionable as to whether they are of the calibre of best practices, as there is little evidence of either an industry or a geographic focus in any. For example, although they give complete discretion to the Director over the enforcement programs insofar as their implementation, Manitoba (S. 123 (1)) initiates proactive inspections against certain employers[139] and New Brunswick (S. 58 (1)) conducts audits at random.[140] Newfoundland and Labrador’s Labour Standards Act also includes powers of entry and inspection (S. 64) and engages in what it calls “preventative intervention,” where ESOs visit workplaces to meet informally with employers and employees to discuss their rights and responsibilities under provincial legislation[141] These visits may be random or target certain employers or industries where non-compliance is evident.

More innovative in their form, legislative measures introducing a ‘positive duty’ for employers to prevent illegal workplace practices are also emerging elsewhere.  At present, positive duty provisions are most developed in anti-discrimination law in contexts such as the United Kingdom.  However, scholars such as Linda Dickens argue that this notion could be used to improve ES enforcement.[142] Taking such suggestions forward, positive duty provisions are also the main feature of the new model national OHS Bill scheduled to come into effect in Australia (in January 2012), and they require more out of employers in terms of due diligence in health and safety matters than in the past; specifically, these preventative measures hold employers more rigorously accountable for preventing violations (i.e., for compliance).[143] Notably, the Australian model law also has a wide definition of employers, which includes “officer[s]” of “person[s] conducting …business[s] or undertaking[s],” encompassing a broader range of individuals exercising influence in shaping workplace terms and conditions – individuals in various locations in the sub-contracting chain, etc. – rather than an employer-employee relationship, narrowly defined.[144]  In its attempt to respond to fissures in employment structure and industries, this model national OHS Bill’s inclusion of a broad range of workplace actors in the model law constitutes an emerging best practice.

Elements of yet another preventative measure operational in the U.S. are also pertinent to this survey as it covers a crucial high-risk industry in which subcontracting is central: namely, the ‘hot cargo’ (S. 15(a)) provision of the FSLA whereby the WHD uses the threat of embargoing goods manufactured in the garment sector below minimum ES. The hot cargo provision was underutilized in a period in which large inventories were common and shipments arrived infrequently.  With the arrival of just-in-time production, and its corollary (i.e., a growing pyramid of fissured production and the proliferation of small enterprises in this sector), the WHD revived it to pursue direct agreements with manufacturers after they have faced an embargo of their goods due to a violation of the FLSA at one of the subcontractors responsible for assembly work; manufacturers therefore enter into monitoring arrangements as a result of enforcement commenced by an investigator.  These arrangements cover a variety of practices including the provision of information, agreements to observe minimum standards, and periodic compliance inspections and they cover all of the manufacturer’s clients, present and future.  Agreements also require manufacturers to take timely action to rectify violations on the part of its contractors both by ensuring that back wages are paid in cases where non-payment of wages are discovered and by notifying the WHD of such a finding.  Furthermore, they can be revoked at any time if the WHD finds the manufacturer to be in contravention.[145] While the hot cargo provision has a voluntary cast, in that it leads to monitoring of small firms at the bottom of the contracting hierarchy by the manufacturers at the top (or the brand names) rather than state inspectors directly, it is proactive in the sense that it anticipates violations in high-risk sectors as well as recidivism.   In this way, its goals resemble measures undertaken elsewhere (e.g., in Australia) to protect garment workers that effectively treat them (e.g., via deeming) as employees of contractors and/or manufacturers for whom the directly produce goods and services.[146]

Other best practices related to investigations respond to the call for collaboration between various agencies of government in the detection of violations. One concrete example of such collaboration is New York State’s Joint Enforcement Task Force on Employee Misclassification operating since 2007.[147]  This Taskforce was created in recognition of the fiscal burden that misclassified workers put on not only workers but the state (i.e., the revenue loss for the state and its agencies).  It involves representation from the state Departments of Labor and Taxation and Finance, the Workers’ Compensation Board, the Fraud Inspector General, the State Attorney General and the Comptroller of the City of New York, who proactively engage in enforcement sweeps, coordinated assignments, and systematic referrals and data sharing to recover lost wages and government revenue.  As a result of its efforts, between 2007 and 2010, the Taskforce identified “50,000 instances of employee misclassification and discovered over $704 million in unreported wages” leading to the assessment of “$21.5 million in unemployment taxes and over $1.85 million in unemployment insurance fraud penalties, over $16.5 million in unpaid wages, and over $2.3 million in workers compensation fines and penalties”. [148]  Initially, joint enforcement sweeps revealing that the construction industry was fraught with violations resulted in a noteworthy initiative: a new law, known as the New York State Construction Industry Fair Play Act, which took effect in Fall 2010. The legislation is designed to curb misclassification by creating a presumption of employment in the construction industry unless an employer can meet a three factor test.[149] The law also provides new penalties for employers who fail to classify their employees properly (Fair Play Act s. 861(e)).[150]
 (ii)  Voice

With respect to the ability of workers’ and their organizations to shape enforcement processes and thus exercise control over their conditions of employment, or their voice, a number of innovative community-based practices aimed at improved enforcement also exist in which workers’ advocates and unions are involved in documenting and redressing violations. Some such initiatives are institutionalized, such as the Los Angeles Unified School District (LAUSD) and Board of Public Workers Deputization Programs (LABPW), documented by Fine and Gordon.[151] Under the first program, the LAUSD deputizes and trains business representatives of building trades unions to enforce the prevailing wage on district projects funded by monies from construction bonds.  These representatives are known as “work preservation volunteers”, are provided with badges and business cards, and are authorized to enter school sites to conduct what are effectively compliance visits. The program emanated from a controversial agreement in which construction unions conceded their right to strike over job issues in exchange for the creation of an internal compliance department set up by the LAUSD in which union representatives play this role.  With its establishment, the LABPW followed suit, training what it calls compliance group representatives. Both programs are designed to make these on-the-ground inspectors the representatives of labour inspectors from the City and thereby expand their enforcement capacity, as is the case with the hot cargo provision of the FSLA.  Agents’ duties thus include interviewing employees about hours, wages, job classification, official duties, and problems at work more generally. They also assist workers in filling out forms in the complaint process (i.e., when the perceive violations through their investigatory efforts); but they do not determine violations or assess penalties.  Both well established programs, representatives are retrained every year.  They are also informed regularly that they are not permitted to use their activities to gather information for their unions, disparage non-union contractors, or review project data outside a pending complaint.

These examples represent the strongest version of Fine and Gordon’s[152] call for community based enforcement (i.e., enabling civil society groups to deliver information and education, patrol communities, file and investigate complaints, and provide for ongoing deterrents), which has its roots in a failed provision of the FLSA. Specifically, when the FLSA was being drafted, there was an attempt to secure a fair labour standards board to work with enlightened employers and unions to help police sweatshop employment relationships; but the provision never materialized. Instead, a weak judicial body emerged and the U.S. Congress effectively banned unions from bringing class actions under the FLSA.[153]   Like this failed vision for the fair labour standards board, as these authors assert, the strength of such programs include their relative permanence and that they are enshrined in public law rather than operating as a program of a particular administration. Although it is difficult to assess their impact on the nature and degree of violations of ES, these programs also follow Weil’s[154] prescription for regulatory jujitsu as their substantive success flows from the business representatives’ intimate understanding of sector-based issues, the “contour” of their activities to specific rules applicable to public construction, and their access to detailed data.

Although it is less institutionalized, another example of community based enforcement where workers gain voice is the Maintenance Cooperation Trust Fund (MCTF), a janitorial watchdog involving a California local of the SEIU (Local 1877) and lead contractors engaged in collective agreements with that local. Together, these institutions established a trust fund whose mission is to abolish unfair business practices in this industry through education as well as investigating cleaning contractors conditions to enhance enforcement by public agencies and private attorneys.[155]  Signatory contractors pay between 1 and 5 cents per hour worked by workers to fund such programs, which require a staff of seven to cover the California area.  This staff exposes, persuades, and will ultimately sue violators if they refuse to change. It also helps state agencies with fact finding, brings workers to agencies to follow up, and also supports workers engaged in private litigation.  As part of its activities, the MCTF enters monitoring agreements with troublesome contractors and helps cultivate interagency monitoring.[156]  The main limitations of its activities, compared to the preceding examples, are twofold: first, firms can always choose alternative contractors whereas more traditional justice for janitors campaigns target worksites, and thus building tenants must comply with monitoring agreements rather than firms.  Second, the MCTF is not capable of making lasting change inside state agencies.

Still another example of this community based enforcement holds the promise of responding to this criticism: the New York Wage and Hours Watch, a relatively new formal partnership between New York’s labour department and six agencies including workers’ centres and unions. This arrangement involves a memorandum of agreement signed in 2009 in which the participating organizations agree to identify and train at least six people to serve as wage and hour watch members for two years. In this capacity, these individuals, who are not deputized, provide at least 200 businesses per year with labour-law compliance information and hold sessions for the public and refer potential labour law violations to the labour department but they are not authorised to carry out inspections; they essentially function like “neighbourhood watch” applied to labour standards such that the chief strength of the model they follow is the ongoing partnerships between the state enforcement bureaucracy and community groups. As Fine and Gordon[157]  suggest, to be effective, however, such collaborations must have clear terms of reference regarding the scope of decision-making, funding to enable community participation, and retain a strong enforcement role for the state.[158]

 

2. Reactive Approaches

As elsewhere in the United States, Australia, the UK, and other jurisdictions in Canada, Ontario’s ES enforcement system is designed such that there will always been individual complaints. Permitting, and even encouraging, complaints from individual workers is acceptable in accordance with the starting principles of decent work, fairness, access to social minima and universality so long as both a better balance is achieved between reactive and proactive approaches and resources dedicated to complaints procedures are used wisely.  For example, the MOL’s goal of eliminating the backlog in unresolved claims described in Section II is laudable.  However, a quantitative approach to achieving this goal by seeking expedited settlements below legislated minima is out of step with the justice principle, that is, the quality of settlements, defined in terms of appropriate levels of penalties and effective collections for individual violators and more broadly in terms of Weil’s strategic enforcement pillars of deterrence and prioritization (i.e., individual investigations should aim to be high impact in their effects).

 (i) Investigations and Inspections

In recognition of the fact that, in Tucker’s[159] helpful characterization, “most workers are unlikely to be assertive protagonists” – i.e., it is unreasonable to depend on workers as whistleblowers, particularly in the context of high levels of precariousness in labour markets such as Ontario, as documented in another report prepared for this initiative[160] – permitting anonymous complaints is a best practice reactive approach in the area of investigations and inspections. Such is the case in Saskatchewan where the MOL offers a complaint option that allows employees to anonymously submit complaints and evidence against an employer who the Compliance and Review Unit then investigates. This option is available if the worker is still “employed at [the] workplace; believes that the Labour Standards Act is not being followed and would like the situation to be corrected but does not: but, does not want to file a formal complaint.” Under such circumstances, only written complaints with supporting evidence are reviewed.  The Compliance and Review Unit also pursues expanded investigations in many such instances; specifically,where a claim submitted by a worker is found to apply to more than one worker at the worksite, the Ministry will expand their inspection to protect all workers present.[161]  Anonymous complaints are also accepted in six labor agencies in the United States; Colorado, New Jersey, California, Connecticut, Illinois, and New York.[162]

 (ii) Penalties and Settlements

With respect to penalties and settlements, two best practices from the U.S. are instructive. The first is found in the State of California, where a section of the Labour Code, colloquially known as the “brother’s keeper” law holds user firms in certain low wage industries responsible for subcontractors wage and hours violations under a duty based regime.[163] This law provides that “a person or entity may not enter into a contract or agreement for labor or services with a construction, farm labor, garment, janitorial, or security guard contractor, where the person or entity knows or should know that the contract or agreement does not include funds sufficient to allow the contractor to comply with all the applicable, local state, and federal laws or regulations governing the labor or services.”[164]  In other words, if a contracting firm is negligent by failing to uncover and limit employment law violations apparent from its contractual arrangements with labour suppliers, it can be held responsible.[165]  Resembling the hot cargo provision of the FLSA, but applicable to a greater number of industries, the aim of the law is to deter purchasers from entering into labour supply arrangements that are, by their financial terms, likely to lead to labour standards violations and more specifically to encourage manufacturers to have contractors put agreements in writing.[166]  In such ways, this law could be characterized as a proactively-oriented reactive measure as it attempts to prevent violations from occurring, distinguishing it from provisions the limited for joint and several liability in Ontario’s ESA, which are more genuinely reactive (e.g., those applied to temporary help agencies and their clients).[167] However, since the brother’s keeper law’s teeth only come into play after violations have occurred and have been revealed and since it does not necessitate monitoring agreements of the sort mandated by the WHD under the hot cargo provision, it falls in the reactive category.[168] 

Spreading across the United States in the last few years, a second area of best practices encompasses Wage Theft Bills, a cluster of policies designed to enforce minimum wage, overtime and other wage related labour standards where cities and states play a central role in “scaling up” struggles for improved enforcement.[169]  This strategy emerged principally through community campaigns responding to the fact that over a dozen U.S. states had minimum wage and overtime protections superior to federal law.  They then gradually came to involve counties and states, via the creation of Wage Theft Laws, in the prosecution of wage violations, including, among other things, the collection of extensive damages on behalf of workers, charging employers that violate the law the full cost of administrative proceedings, and revoking the operating licenses of known violators. One success story is found in the county of Miami-Dade, Florida which passed the first county wide ordinance in the U.S.  Adopted in February 2010, this ordinance outlaws wage theft and provides the county with the ability to intervene in the recovery of back wages for workers who have experienced violations.[170]  Specifically, it provides for triple damages to be paid to workers and requires the violator to pay the administrative costs of claims, as well as damages.  In this way, it responds to the concern that mediated settlements are inadequate by bolstering the level of back wages awarded, puts more pressure on collections, and removes the frequent requirement on workers and their representatives for covering administrative fees in the complaints process. Although the system of regulation differs in Canada, where only approximately ten per cent of the workforce is covered by the federal labour code and where ES in the area of wages vary province, the use of levers at the local level to improve enforcement in this U.S. case is the key lesson.

(iii) Voice

In the arena of voice, under Australia’s Fair Work Act (2008), which sets out ten new national ES, unions have the right to bring court proceedings in relation to violations of ES if they are entitled to represent the employee in question.[171]   If the violation relates to a workplace agreement (akin to a collective agreement Canadian-style) or workplace determination that binds the union, the union can also make an application in its own right, on behalf of an employee, or both.[172] This limited space for unions amounts to a degree of third party involvement in the enforcement process.  It should be emphasized, however, that this example only represents an improvement when compared to the system operating under Australia’s former ‘Work Choices’ regime since union rights under the new centralized system of industrial relations remain more constrained than two decades ago when they were considerably stronger in most states. Since employment standards are minimum standards, many collective agreements provide higher benefits in certain respects than would be available under the ESA. However, even if Ontario were to adopt the Australian model to permit a union to take ESA claims to court rather than through the ESA enforcement regime, it would still require consideration of the impact of the Supreme Court of Canada’s decision in Weber which holds that to the extent a “dispute, viewed with an eye to its essential character, arises from the collective agreement”[173], it must be addressed through the grievance procedure. The question is whether “the conduct giving rise to the dispute between the parties arises either expressly or inferentially out of the collective agreement between them”[174].

 

3. Voluntary Approaches

The research literature, including studies on OHS and ES, documents the limits of voluntary measures, especially when they are the exclusive means of enforcement.[175] It highlights the need to begin with the acknowledgment of the inherent power imbalance between workers and employers and the related recognition that this imbalance is amplified with globalization and the fissuring of production processes,[176]  especially the growth of subcontracting etc. not only in the private but the public sector. Considered on its own terms, there are nevertheless several best practices in voluntary compliance, which essentially amounts to the implementation of regimes of corporate social responsibility (CSR) (encompassing, among other examples, social labelling – or verification systems for a firm’s social performance by authorizing the use of a physical label to communicate the social conditions surrounding production – and codes of conduct – a written set of standards, principles and norms to which a firm conforms)[177] that could potentially complement innovative proactive and reactive strategies in the context of a proactively-oriented mixed regime.[178]  These practices relate principally to investigations and inspections.

 (i) Investigations and Inspections

Considering concrete best practices in voluntarism (narrowly defined), with regard to investigations and inspections, the Fair Labor Association (FLA) is one model applied globally in which brand names commit themselves to a regime of private monitoring. Specifically, these entities, including their entire chain of suppliers, agree to a programme of implementing a code of conduct, internal monitoring, and unannounced independent external monitoring of standards.  The model emerged in response to the fact that the traditional CRS measures concentrating on auditing fail to address the root causes of non-compliance; in response, it integrates a system of monitoring, rectification and third party complaints. The FLA was formed in 1999 and involves sixteen brand names and is administered by a coalition of benevolent firms, university groups, and NGOs from around the world.  It covers 4,000 facilities in eighty countries. The names covered by the model thus implement the FLA principles which are equivalent to the core labour standards of the ILO, conduct internal monitoring, submit to third party audits by FLA accredited auditors in a random sample of 5 percent of their suppliers as well as to publishing the results of these audits on the FLA website after the company has the opportunity to take remedial action, and report to the public on various activities.[179]

A distinctive best practice in voluntary compliance oriented to the public rather than the private sector, and of growing popularity among unions, union centrals, employers and states,[180]  is public procurement policy – agreements that government agencies investing “tax dollars” make with private sector actors in procuring public works projects.  Such agreements exist in a range of contexts and at different scales, including in Toronto, whose policy is longstanding. A noteworthy national example is Ireland’s Public Sector Procurement Policy, which seeks to “maintain employment standards in the public sector and uphold statutory norms, notably in relation to construction companies tendering for and engaging in public work contracts.”[181] This new agreement calls for adhering to “industry norms in terms of pay and conditions and to prevailing national and/or industry-wide agreements, including health and safety regulations,” as well as to “employment standards and statutory norms, including those regarding wage levels, while also ensuring competitive tendering and value for money.”[182]  It is administered by the Department of Finance, which issues public procurement guidelines, and is promoted by a range of other government agencies, including local government and transport agencies. Under its terms, contracting authorities are also to facilitate access to the Labour Relations Commission Conciliation Service, Labour Court and the Rights Commissioner Service (e.g., in the event of an industrial dispute) in line with Ireland’s industrial relations regime[183] 

Another national example is the umbrella group known as the Sweatfree Purchasing Consortium, a group of state and local governments in the U.S. who help other cities, states, counties, towns, and school districts to develop and implement policies and rules towards the goal of avoiding sweatshop products.  The Consortium works to assist governments in creating codes of conduct, applicable to the contracts in which they engage, requiring that their contractors, abide by “standards that enjoy international consensus and the will of the people of the nation and region of production,” specifically, the core conventions of the ILO and its Declaration on Fundamental Principles and Rights at Work and its implementation and monitoring.[184]  The Consortium also provides guidelines for a five step program for the monitoring of such Codes involving: advertising (i.e., public entities are to conduct “targeted advertising campaign[s] to declare their intent to allocate public funds to purchase goods and services that are produced in safe, fair and humane working conditions;”[185]  prequalification, which involves requiring or encouraging vendors to agree, in advance of making a bid, to conform to the public entity’s code of conduct; a process equivalent to certification, which involves requiring bidders that have not fulfilled the prequalification requirement to attest through various means  that they will subscribe to the code of conduct in question (e.g., documentation may be required to prove that suppliers related to the bidder are required by the bidder to conform to the Code); supplier evaluation, a process in which the advisory team to the Code verifies the vendors’ capacities to comply with its terms (i.e., before an award is made); and, performance monitoring, which entails setting out “specific steps to ensure code compliance and responsible supply chain management throughout the duration of the contract as a condition for contract continuation and/or renewal.”[186]

Still other vehicles of voluntary compliance involve more focussed partnerships between state agencies and industry. One example is the Horticultural Industry Shared Compliance Program, involving the Australia’s Fair Work Ombudsman, horticultural industry employers and state agencies in a large-scale attempt to remedy the high level of violations in this sector.[187] This program adheres to a three stage program of activities, which includes, first, developing a joint publication operating as an employer guide to the Horticultural Award; second, planning for compliance, specifically circulating educational resources to and hosting seminars for employers about employment regulations for the purposes of self-audits and informing them of audit phases of the program; and, third, auditing a randomly selected group of employers towards a nationwide audit. This program is, however, highly voluntary since, at the third stage, even when violations were found, the Fair Work Inspectors work with employers to encourage voluntary compliance rather than pursuing prosecutions.[188]

Another example, also operating in Australia, is the “Proactive Compliance Deed” between McDonald’s Australia and the Commonwealth of Australia.”[189]  In this agreement, which is technically between Fair Work Australia, the federal body responsible for the enforcement of ES, and McDonald’s, the latter agrees to follow a national self-audit program to ensure that it is complying with relevant labour laws, especially those related to wage payments.  This self-audit covers ten per cent of all employees at twenty-seven McDonald’s restaurants and it requires the company to disclose and rectify each contravention found.          

Based on these types of examples and their successes and failures, other researchers also call for ‘softer’ techniques of investigation and inspection to supplement ‘hard laws’, particularly in what Teague refers to as “Anglo-Saxon” contexts. These techniques include diagnostic monitoring, which uses inspection as a comprehensive review of arrangements and a means of examining reasons beyond non-compliance without the threat of rectification off the bat, and specialized institutions (for example, the UK’s Low Pay Commission) designed to educate the public on employment regulations.[190] For such authors, integrating these arrangements into labour codes offers the potential of broadening enforcement beyond single agencies, and hence a more holistic approach that could be combined effectively with proactive measures in contexts like Ireland, where the principle of rectification is relatively unsuccessful in addressing the standard setting behaviour of forms. Such techniques could be combined with existing strategies of naming violators on government websites to improve compliance over the long term, as is common in several jurisdictions in Canada, including Ontario.[191] Yet the power of voluntary measures, even those ‘best practices’, is not compelling, unless they are combined with harder and more proactive measures of enforcement.

 

B. OHS Enforcement

Building on the framework for discussion of best practices in ES, this section addresses best practices in OHS enforcement through the lenses of proactive approaches, reactive approaches, and voluntary approaches.  Clearly, there are very substantial differences between the ES and the OHS enforcement regimes, not just in Ontario but in most of the industrialized world.  Proactive enforcement and worker voice are much better institutionalized in the OHS regime than they are in ES, as are voluntary approaches.  One reason for this is that a vibrant worker OHS movement in the 1970s and 1980s was able to pressure governments and employers to address OHS issues much more aggressively and proactively than they had in the past, and to accord workers and their unions a voice both at the policy and the workplace levels.  Therefore, the discussion of best practices in OHS begins from a different baseline than in ES.

 

1. Proactive Enforcement

 (i)Inspections

There is widespread agreement on the principle of risk-based regulation.  This requires regulators to allocate their enforcement resources on the basis of an assessment of the risks that a firm or a sector (however defined) pose to the regulator’s objectives.[192] In the context of OHS regulation, where the overall objective is to prevent occupational deaths, injuries and diseases, an assessment must be made of the inherent risks posed by an activity and the competence and commitment of firms to mitigate those risks.[193]  The strategic enforcement model developed by Weil[194] described earlier operates according to similar principles.

The importance of proactive inspection as a best practice cannot be understated and, as evident in Section III, the OHSD has emphasized this dimension of its enforcement activities in recent years.  As well, the OHSD has gone some way toward the adoption of best practices in setting priorities for its proactive enforcement program, by taking into account injury rates and claims cost, compliance history, inherent hazards, new businesses, size and the presence of new and/or vulnerable workers.  A strong word of caution, however, should be registered about the use of workers’ compensation data in setting priorities.  Numerous studies have shown that the use of claims cost data to experience rate firms in workers’ compensation produces strong incentives for employers to engage in aggressive claims management that may alter the claims data without addressing the underlying OHS conditions that result in work injuries[195]   As a result, workers’ compensation data is an unreliable indicator of the capacity and commitment of firms to manage their health and safety and the data is likely to become even less reliable to the extent that it becomes known that it is used for targeting enforcement resources.  It is notable that the Dean Report has called for the development of a common database to measure leading rather than lagging indicators for the purpose of assessing risk and measuring performance.[196]  The development of such a database would provide a much firmer foundation for establishing proactive inspection priorities.

The use of safety blitzes or targeted safety campaigns has also been identified as a best practice for risk-based regulation and has been used in Sweden, Australia, the UK and Quebec[197]  and, as noted above, is being used in Ontario. The literature also suggests that there needs to be a linkage between the results of a safety blitz inspection and subsequent proactive enforcement activities.  In particular, where a safety blitz inspection or, for that matter, a regular proactive inspection detects a violation, the result should not just be an order to address the particular problem, rather the finding should trigger a broader review of the employer’s management system to understand how and why the violation occurred and was not corrected prior to the inspection and to take steps for this to be corrected.  This “bottom-up” approach[198] avoids isolating particular problems or incidents from the bigger picture, as well as from higher levels of management who need to be made to understand that it is their responsibility to institute good OHS management practices in the firm.  It is not clear from the documentation whether Ontario follows this best practice.

This raises a larger question about the conduct of inspections and the actions taken when OHS problems are identified.  As noted in section III, there has been a shift from compliance assistance to enforcement.  The Dean Report[199] noted this shift and heard differing views from stakeholders on its merits.  Not surprisingly, employers expressed some concern about the shift and wanted more compliance assistance, while labour wanted more consistent enforcement in certain areas of non-compliance, including training and JHSC requirement. The Dean Report recommendation split the difference, calling for consistent enforcement of serious and wilful contraventions and compliance assistance where it would help achieve compliance.[200]

The next section on reactive enforcement returns to consider, in more detail, the use of Part III prosecutions.  For the purposes of the present discussion, it is noteworthy that such prosecutions almost never result from a proactive inspection.  Rather, they are launched only when a violation has resulted in a serious injury or a fatality.  Enforcement action taken in response to proactive inspections, therefore, range from the provision of advice, to formal orders to Part I tickets for which there are set fines, currently no greater than $295.00. 

There is no overriding consensus on the best practice in regard to balancing between prosecution and compliance beyond the nostrum that neither a pure compliance nor a pure prosecution model is desirable.[201]  However, Richard Johnstone has raised serious questions about the appropriateness of limiting prosecutions to instances where violations have materialized in substantial harm as these outcomes may be unrelated to the degree of culpability of the duty holder.[202]  Rather, a more appropriate approach to prosecutions would take into account the extent to which the employer departed from regulatory requirements, the degree of risk posed by the non-compliance and the employer’s track record.  Using that metric, a best practice would result in prosecutions arising from proactive inspections in appropriate circumstances.

With regard to tickets, there have been few empirical studies of their effects, but a review of those studies and the practice of ticketing (infringement notices) in Australia supported the view they have a role to play in getting the message across and spurring preventive OHS activity.[203] However, concerns have been raised by Garry Gray about the way ticketing is used in Ontario, particularly because in his study workers were the target of 37 percent of the tickets, supervisors 38 percent and employers 25 percent.  In particular, Gray noted that supervisors were far more likely to be charged with failure to ensure safety than were employers.[204] The result is to allow responsibility for compliance to be pushed down into the lowest reaches of the firm’s managerial hierarchy rather than treating these violations as failure of the employer’s OHS management system that needs to be corrected at a senior management level. The need for a bottom-up approach, discussed earlier, should be adopted as a best practice in regard to ticketing.

A fundamental problem facing enforcers of all forms of labour market regulation is the fissuring of the employment relationship.[205]  This entails the fragmentation of previously integrated systems of production, entailing contracting out of work to smaller firms and the use of contingent workers in the form of temporary employees, temporary agency workers, and self-employed workers.  To the extent that disintegration strategies still involve having contingent workers perform work on an employer’s site, the employer retains responsibility for their health and safety and inspectors who visit the site have the opportunity to observe whether these arrangements are creating observable OHS risks.  They may not, however, be aware that disintegration strategies that may in themselves undermine good OHS management are being undertaken.  For example, they may not know that some of the workers are employees of the inspected employer while others are agency workers sent for a temporary work assignment.  In that regard, it is unclear how well the targeting criteria will detect firms where contingent workers are present onsite.  While the MOL does take into account the presence of vulnerable workers, the term does not seem to be defined and this factor may be offset by an artificially low claims and cost experience due to the fact that temporary agencies will be charged for agency workers, and that self-employed workers may not have workers’ compensation coverage or will have coverage in their own names.

The problems for inspection produced by workplace fissuring become even more difficult when the work is not performed on the employer’s premises but at another site.  This is because fragmentation and the expansion of supply chains are associated with an increase in small and medium-sized workplaces.  Not only does this create more workplaces for inspectors to visit, but there is ample evidence that the health and safety performance of these workplaces is likely to be lower than in larger, more integrated enterprises and are “relatively impervious to the regular tools of the trade for assessing risk, providing service and designing interventions.[206] Reasons for this include the lower likelihood that small workplaces will be unionized and provide a channel for worker voice, and the fact that small business are often lacking in management resources, knowledge, skill and time.  As a result, not only are there more firms to regulate, but their regulation is more resource intensive. Although the MOL does take into account firm size as a criterion for targeting proactive inspections, in the absence of a corresponding growth in inspection resources the likelihood of a firm that fits the targeting criteria being inspected is likely to decrease.  Therefore, a best practice, albeit one that no jurisdiction has realized, is to link the budget for inspection not only to the size of the labour force but also to some measure of the level of workplace fragmentation.  Further work would be required to devise such a measure.

Because of the scale of the problem of regulating proliferating and lengthening supply chains and production networks, researchers have suggested that “upstream” approaches need to be emphasized, meaning that interventions should be designed to focus on the contextual and institutional factors that shape risk creation.[207] A prominent example of this approach is supply chain regulation which in various forms seeks to place responsibility for downstream businesses on the upstream firms that contract with them, thereby improving downstream OHS performance and compliance while reducing the demand downstream for inspection and enforcement resources.

Phil James et al examine several options for supply chain regulation to improve OHS.[208]  The report shall return to voluntary approaches later.  Here, the focus is regulatory initiatives.  The first approach centres on the use of the government’s contracting power.  The principle is derived from fair wage resolutions, which are also a common Canadian practice, that require companies doing business with government to pay wages no less favourable than those provided in prevailing collective agreements.  An analogous mechanism is the federal contractor’s program under the Employment Equity Act that requires contractors to commit to implement employment equity and to establish employment equity programs that meet specified requirements and are subject to compliance reviews.  Although these programs are not costless in terms of monitoring costs, and indeed have been criticized because of the lack of resources devoted to compliance review,[209] they do potentially provide a cost efficient way of improving labour standards and compliance, especially where the consequence of non-compliance is loss of the ability to contract with the government.  This approach could be adapted to require government contractors to commit to implement specified OHS management practices and to assume responsibility for the OHS practices of the firms with whom they may subcontract.  An example of this approach is the Construction (Design and Management) Regulations in the UK.  However, to be effective, best practices would require that adequate resources need to be devoted to compliance.

The second approach aims at the private sector.  One example cited by James et al. that has already been canvassed in the discussion of ES is the “hot cargo” provision of the FLSA in the US.[210]  In principle, the threat that goods that are manufactured in violation of the OHSA will be prevented from entering into commerce could be used to leverage agreements from upstream companies to monitor their subcontractors’ OHS performance and regulatory compliance.  Another example provided is from Australia in relation to long distance truck drivers and fatigue.  Not only are employers required to assess the risk of fatigue and take steps to reduce that risk, but it also extends this requirement to their contracts with self-employed carriers and imposes an obligation on freight consignors and consignees to monitor head carriers’ compliance with their legal obligations and prohibits them from entering into contracts with carriers unless they have satisfied themselves on reasonable grounds that delivery times and work arrangements will comply with the driver fatigue management plan. 

To this point, it does not appear that Ontario has taken steps to develop any form supply chain regulation of OHS.  This best practice should be a priority.[211]

 (ii) Voice

Unlike ES enforcement, OHS regulation provides institutionalized mechanisms for employee voice through the requirement for joint health and safety committees (JHSC) in workplaces with twenty or more workers and for worker health and safety representatives (HSR) in workplaces where the number of workers regularly exceeds five.  One of the main purposes of JHSCs and HSRs is to identify workplace hazards.  A comprehensive description of the operation and powers of JHSCs, worker JHSC members and HSRs is beyond the scope of this review.  What follows is a basic overview of the mechanisms for enabling workers’ voices to be part of a proactive process for managing OHS risks. 

JHSC members and HSRs must receive training, are entitled to obtain information from the employer, and most importantly here, conduct health and safety inspections of the workplace no less than once a month.  Time spent carrying out these duties is deemed to be work time for which representatives are to be paid. The employer must respond to written recommendations within twenty-one days and shall either provide a timetable for implementing the recommendation or reasons why the employer does not accept the recommendation. There is no formal dispute resolution mechanism provided in the act, but if the worker representative believes that the recommendation is to correct a violation of the act, he or she can complain to the OHSD and that would trigger a reactive inspection.  As well, if a certified member[212] believes that there is a contravention of the act that poses a danger or hazard to a worker and that a delay in controlling the hazard may seriously impose a danger to a worker, the member may initiate a procedure leading to a stop work order by the two certified members.  Certified worker members of JHSC do not have the unilateral power to order that work be stopped, unless the Ontario Labour Relations Board has made an order permitting it.  To our knowledge, no such order has ever been issued.    Worker representatives also have the power to investigate work refusals and investigate serious accidents.  Finally, a worker JHSC member, HSR or other knowledgeable worker is also entitled to accompany the inspector.

Workers can also have a direct voice other than through JHSC members or HSRs.  Workers can complain to the OHSD about OHS violations and most workers can refuse unsafe work where they have reasonable grounds to believe conditions in the workplace, including the threat of workplace violence, is likely to pose a danger to herself or himself, or to another worker.  This initiates an internal inspection and if the worker is not satisfied with the result of that inspection the OHSD inspector is called, triggering a reactive inspection to determine whether the circumstance that led to the refusal is likely to harm the worker or another person.

As the above summary indicates, worker voice is institutionalized and enables workers to be eyes and ears on the shop floor identifying hazards and initiating actions to have them remedied.  International literature confirms that worker participation is a best practice in OHS regulation.[213]  However, the literature also emphasizes that it is not enough to simply mandate worker voice. Rather, the effectiveness of worker voice varies depending on the presence or absence of a number of supports, including union representation, legislated support, worker training, active workplace inspectorates and an activist orientation by worker representatives.[214]  While Ontario continues to legislatively support worker voice, most recently evidenced in Bill 160’s addition of a requirement for HSR training and a power for a single co-chair of a JHSC to make written recommendations to an employer, the decline in union representation and the proliferation of small workplaces are undermining the effectiveness of worker voice.[215] As a result, worker protagonism is jeopardized, notwithstanding that the OHSA prohibits retaliation against a worker for exercising her or his rights under the act.

Indeed, the problem of retaliation against workers was raised before the Dean inquiry. In its report, it called for improved protection from reprisals to encourage workers to exercise their rights under the act, especially as other measures that it advocated, such as increasing worker training and awareness, would likely result in more workers raising OHS concerns.[216]  Bill 160 responded by enabling inspectors to refer a worker reprisal complaint directly to the Ontario Labour Relations Board, which adjudicates the complaint.

Such measures are helpful, but are unlikely to provide most workers generally and precarious workers in particular with the security they need to feel comfortable exercising their OHSA rights.   Although there are no panaceas to compensate for changing structural conditions that undermine worker voice, the Swedish experience with regional health and safety representatives is a model that could be adopted to extend the reach of worker voice and increase the surveillance capacity of the inspectorate to smaller, hard to reach workplaces. Under Swedish law, trade unions have the right to appoint regional safety representatives for all small firms in which they have a member and in which there is no JHSC.  According to Kaj Frick regional HSRs “mainly function as peripatetic ‘local’ representatives, who help to detect OHS hazards and discuss with managers how to abate them.”[217]  Lacking formal enforcement powers (except in the face of imminent dangers), their effectiveness in large measure derives from their superior knowledge and broad experience in addressing OHS issues.  Despite the erosion of the conditions in Sweden that supported the role of regional health and safety representatives, they still make an important contribution to OHS management in small firms. 

In an environment in which union representation is declining and in which employer resistance to the presence of outside union-appointed HSRs is likely to be great, an alternative would be to seek out other intermediaries who are knowledgeable about health and safety to play this supporting role. Use of community partners might not be appropriate unless they have the requisite knowledge to be effective advisors and monitors.  Perhaps a governmental office, similar to the Office of the Worker Advisor in workers’ compensation might be considered, or non-governmental groups, like the Workers Health and Safety Legal Clinic or the Occupational Health Clinics for Ontario Workers could be funded and given a larger mandate to provide these services.

 

2. Reactive Approaches

Reactive inspection and enforcement occurs when there is a complaint about a violation, a work refusal or a serious injury or fatality that is required to be reported to the OHSD.  There is no need here to go into the limits of a reactive strategy, except to reiterate that the willingness to complain or to exercise the right to refuse is shaped by many factors in addition to the hazards present in the workplace.[218]  This is especially true for precarious workers whose vulnerability makes them even less likely to make formal complaints. Similarly, the occurrence of a serious injury or fatality may or may not be indicative of a larger problem that requires intervention beyond dealing with the particular circumstances that caused the mishap.  For these reasons, the OHSD has justifiably put more resources into proactive approaches.           

However, when reactive inspections and enforcement actions are taken, it is important that they are effective and so this issue is critical to address. Examining reactive inspections in response to work refusals and retaliation complaints revealed that the mandate of the inspector is to determine whether or not there is a health and safety violation, not to determine whether a worker has suffered retaliation for enforcing his or her rights, which is to be determined either through arbitration, where a workplace is unionized, or through a complaint, and now an inspector referral, to the OLRB.  This arrangement is reasonable. The question addressed here is whether further enforcement action should be taken in these circumstances.  Here it is also to be noted that retaliation is also a violation of the OHSA for which an employer could be prosecuted.  However, this is not a practice that has been adopted.  The Dean Report called for a review of the MOL’s policy in this regard and recommended that “enhanced enforcement” should be undertaken to address egregious or repeated violations of section 50 (the no-retaliation provision).[219]  This recommendation should be implemented.  As well, consistent with the previous discussions of a bottom-up enforcement strategy, a finding that there has been retaliation should trigger a follow up inspection to insure that senior management has taken appropriate measures to insure that everyone in the organization understands that workers are not to suffer adverse consequences for exercising their rights under the act and that measures have been adopted to avoid a repetition of this unlawful employer behaviour. In the context of investigations of critical injuries and fatalities, it is notable that Ontario prosecutes employers far more frequently for OHS offences than do other Canadian jurisdictions.  This is an important component of a best practices enforcement system as numerous commentators have reiterated that big sticks are needed at the top of an enforcement pyramid of escalating sanctions to deal with serious and repeat offenders.[220] In this context, further work needs to be done to inquire into why criminal prosecutions have been used so infrequently and with so little success when they have been tried, for these should be integrated into and sit at the top of the pyramid of potential sanctions both for their specific and general deterrent effects, and to emphasize the Rule of Law principle that mainstream criminal law applies to the wrongdoing in the workplace as much as it does to wrongdoing in other settings.[221]    

There is also a question of the use of sanctions other than criminal or Part III provincial offence prosecutions for contraventions that result in critical injuries or fatalities.  As Gunningham and Johnstone noted for Australia, and  is also true of Ontario, there is a split pyramid of sanctions, where lesser ones are used in the context of proactive inspections and stronger ones are used in the context of reactive inspections to critical injuries and fatalities.[222]  As already suggested, Part III POA prosecutions ought to be considered in appropriate cases for contraventions detected during a proactive inspection.  The question here is whether other enforcement actions, either in lieu of or in addition to prosecution should be considered for contraventions that resulted in a critical injury or death.           

Consistent with the position taken previously, that single incidents should trigger an examination of systemic problems, there is certainly a strong case to be made that follow up inspections should be conducted in the aftermath of a prosecution to ensure that specific deterrence has resulted in reform to the employer’s OHS management system such that the likelihood of future contraventions going undetected and uncorrected is substantially reduced.  Some Australian research has found that many employers respond to prosecutions in just this way,[223] but follow-up inspections would increase the likelihood of improved OHS performance.         

With respect to the use of lesser sanctions in lieu of more serious ones, further research is required to know more precisely the criteria that are used to determine whether and when contraventions that result in critical injuries or deaths do not result in a prosecution.  Where they do not, the question arises as to whether there are lesser sanctions that would be appropriate. Some studies have reported that OHS compliance improves after a sanction has been imposed, regardless of its size.[224]   This might suggest that a ticket would be effective in this context; however, there is a serious concern that a ticket would trivialize the seriousness of the consequences and send the wrong signal. A more promising alternative is the use of enforceable undertakings, a practice that has been used in Queensland, Australia.  Under this provision, a duty holder who has been charged with an OHS contravention can propose an enforceable undertaking, which will be accepted in lieu of the prosecution if it delivers benefits beyond compliance and tangible benefits to workers, the industry or the community.  Undertakings will not be accepted where there has been a fatality or a serious breach of the Act. Enforceable undertakings include a description of the alleged offence, a statement of regret, an assurance about future behaviour, a requirement to provide third-party audit reports on compliance, and a commitment by the duty holder to pay the regulator’s investigation and monitoring costs.  More research is needed to assess the effectiveness of this enforcement tool and so it is too early to characterize it as a best practice; early accounts, however, are promising.[225] 

 

3. Voluntary Approaches

This discussion has already averted to the limits of voluntary compliance measures, noting that they cannot be a substitute for public enforcement. However, as in the case of ES, there are private enforcement measures that can play a role in improving OHS management and performance, provided they are well designed and linked to public enforcement mechanisms.

Thus far, this report has described OHS management systems on a number of occasions but has not defined them and so it will be useful to do so here.  According to Kaj Frick and John Wren, OHS management systems embrace five core principles: 1) OHS conditions are an aspect of production, therefore; 2) top management is responsible for OHS conditions; 3) to abate work hazards management must integrate OHS considerations into all other management decisions; 4) systematic assessment and evaluation of work hazards is an essential prerequisite to making decisions about abatement and prevention; and 5) implementation of prevention and abatement requires tasks and resources to be adequately distributed within the organization.[226]

Voluntary OHS management systems (OHSM) have their roots in the Safety First movement that emerged in the early decades of the twentieth century and have been developed by management consultants and various firms and associations who have produced and marketed a variety of products such as the Five Star System, the International Safety Rating System and the DuPont System.  As well, many firms have developed their own internal OHSM systems.  These systems are typically highly specified and often require external private auditing for participating firms to become certified.  Because these systems are proprietary there is little independent research assessing their effectiveness.  Moreover, international private standard-setting organizations, such as the ISO, have not created an OHSM standard equivalent to the ISO 14000 standard regarding environmental management.

One common feature of many of these private systems is that they use a behaviour-based safety model which emphasizes the importance of motivating employees to follow the employers’ safety rules through a mixture of peer pressure (e.g. group incentives for consecutive no-lost time accident days), employer monitoring and discipline.  An earlier study of OHSM in Ontario expressed concern about the use of such systems to marginalize worker participation and to promote the suppression of injury reporting and the shortening of recovery time.  Moreover, in the absence of independent assessment, it also rejected the view that firms that voluntarily adopt privately monitored OHSM systems should be exempt from routine government inspection.[227]

Walters et. al.’s recent study of OHSM internationally endorses the view that voluntary approaches are inadequate to the task and instead its authors advocate regulated OHSM, in which public inspection plays a critical role.[228] This involves, on the one hand, public standards for OHSM systems and on the other government monitoring of compliance with those systems.  Internationally, a number of jurisdictions have established OHSM standards, including EU Framework Directive 89/391, which requires member states to implement principles of OHSM in their domestic OHS laws.  In Ontario, the OHSA provides a basic infrastructure for OHSM, including worker participation and monthly workplace inspections by worker HSRs and JHSC members.  However, the authors of the study are also wary of making strong claims even for regulated OHSM systems.[229] 

In short, there is insubstantial evidence that the regulatory project pursued internationally to improve standards of OHSM has succeeded in significantly changing the ways in which most duty holders conceive or operationalise these arrangements in the workplaces for which they are responsible. Nor can it be said that its surveillance by regulatory inspection has effectively strengthened control over the improvement of the standards of OHSM.  It also therefore remains unproven that the operation of this form of regulation has achieved the intended ‘acceptable level’ of protection for workers form the consequences of workplace risks.

Nevertheless, it has been almost two decades since Ontario last reformed the IRS provisions of the OHSA, and so it would be timely for a review to be undertaken to determine whether the legal infrastructure of OHSM complies with current best practices, especially in the context of the changing world of work and the challenges they pose for OHSM systems generally and for MOL monitoring of them.  As has been well documented,[230]  the growth of triangular employment relationships, supply chains and self-employment are often accompanied by problems of disorganization, including communication breakdowns, more complicated lines of management control and a decreased ability on the part of workers to recognize hazards and protect themselves from them.  Moreover, regulatory failure becomes more likely because laws and policies were often developed with the traditional employment relationship in mind and because monitoring production networks and chains puts a strain on available resources.

Finally, turning attention back to supply chain regulation, this time focusing on the role of voluntary codes, there has been a proliferation of voluntary codes relating to the responsibility of multinationals for the behaviour of their downstream contractors.  A wide range of provisions are made in these codes for monitoring, some of which are more independent than others.  For example, in Australia high profile transnational corporations involved in textile, clothing and footwear (TCF) production entered into an enforceable agreement with the union representing TCF workers under which all sites of production must be disclosed to the union, which is given the contractual authority to make unannounced inspections.[231]  As purely voluntary measures, supply chain regulation has received mixed reviews.  Estlund, (who generally is favourably disposed toward the development of self-regulatory capacity, also recognizes that the programs she reviewed all had significant limitations.[232]  Supply chains must be headed by publicly visible companies with a significant stake in protecting their brand in order for them to be vulnerable to public pressure; activists must be able to sustain pressure indefinitely in order to ensure that voluntary agreements and monitoring arrangements do not lapse and degrade; resources must be available to support monitoring efforts, etc. So while some voluntary supply chain schemes are better than others, it would not be a best practice to give priority to the development of private regulation and private monitoring. The better approach to supply chain regulation requires that public regulatory authorities play a central role in establishing the obligations of the upstream duty holder, supervising the arrangements for monitoring the practices of contractors and sub-contractors and guaranteeing a role for worker voice in these arrangements.  A number of these efforts were described in the proactive section of OHS best practices and will not be repeated here.

 

Previous Next
First Page Last Page
Table of Contents