Reader Panel: Safety and the Criminal CodeWritten by Mari-Len De Guzman 16 June 2008
Forty-nine per cent believed it will make a difference, while forty seven per cent answered it won’t make any difference at all.
Some respondents believe that taking the issue to the public’s attention is key.
“As a part time consultant, I have seen very little change in the attitude of companies because of this decision. This is because most have not even heard of it. There was an almost total lack of reporting by the major press of the incident, the related charges or the conviction. Until fatalities and injuries on the job and industrial disease are treated by the major press as the epidemic that they are…there is never going to be the political will to enforce change,” comments one reader panelist.
Others believe that the case did not make a big enough impact to make management take notice. “The impact will not be felt until management representatives are directly held accountable and this should include all levels and positions of influence.”
Many felt the $100,000 fine was not big enough to really make a difference, a view shared by Quebec labour groups. “The fine was relatively minor given all the previous hype about C-45. It is not until the courts exercise all of the options available to them before people start to pay attention,” one respondent says.
Another comments, “The fine was relatively low. The opportunity was there to send a strong message regarding workplace safety. Even a token suspended jail sentence would have sent a very strong message!”
New legal obligations
Bill C-45 sets out new legal obligations for organizations and their officials to ensure proper implementation of workplace safety programs. Reader panelists were asked about their level of knowledge of these new legal obligations under the Criminal Code.
Half the respondents believe they are very knowledgeable about Bill C-45 and its provisions, while 35 per cent answered they’re only somewhat knowledgeable.
“Our profession must continue to emphasize, however, that simply complying to the regulations and not being charged under C-45 is not enough to create a safe work place. Bill C-45 simply screens out those that should never have been provided with the task of managing workplaces,” says one respondent.
“I consider myself only "somewhat" familiar as I am not a lawyer. I am aware that Bill C-45 is simply the identity given the instrument that changed the Criminal Code and not actually a law unto itself.”
Some say it is the safety leaders responsibility to ensure that they are aware of their legal obligations.
“The new Criminal Code provisions change nothing for safety professionals other than as a device to get management attention. We had and continue to have a responsibility to strive for safety best practices and workplaces free of substandard acts and conditions.”
Another respondent says, “I don't see how anybody could be very knowledgeable about a law that only recently had its first successful prosecution. We need to see how the courts will interpret this before we truly become knowledgeable.”
No real change
Despite the new duties under the Criminal Code, some organizations have not really seen any real influence and changes to their health and safety management system. Only 20 per cent say it has made a strong impact on their firms, and while 39 per cent say the case has raised awareness in their organization, there hasn’t been much change or action as a result.
“We provided all supervisory staff with training on C-45 and re-fresher on due diligence. There has been a significant change is some business practices but always room for improvement,” says one respondent.
Some were confident enough about their existing safety management system that they felt there was no real need to change what they have been doing.
“Companies with mature, fully integrated safety management systems did not need to do anything additional to meet the requirements. I would even suggest that companies that were not all the way there yet, but were working at it, would also not be impacted. Only those who were doing nothing needed this shake up.”
Others say the consideration should go beyond just the legal requirements. “It has been an influence like other global safety legislation but there are stronger internal forces motivating safety performance than minimal legal requirements.”
Another interesting comment: “Bill C-45 has given executives the ability to distance themselves from responsibility for many EHS issues. With the onus of proving communication of concerns on the supervisor, many executives feel insulated and thus elevating EHS concerns becomes more difficult.”
Not doing enough
With the new Criminal Code obligations, safety managers aren’t the only ones at risk of criminal prosecution. Bill C-45 also makes senior managements criminally liable for workplace safety.
Fifty-nine per cent of our reader panel respondents are convinced their company executives have not done enough to know their legal obligations under Bill C-45, and only 30 per cent say their bosses are doing their homework.
“Yes, and that had occurred long before C-45 was even enacted. Remember, C-45 is just a 'hammer' for all the safety regulations that already existed. Commitment to safety should not be based on the 'size of the hammer' but rather on the value of protecting workers.”
Another says, “Our school within the college is probably more aware than senior management of the entire college.”
One reader comment expresses optimism. “But this is changing, they have recently ask for an education session on their roles and responsibilities.”
“Company lawyer has been in and reviewed it with management team; regularly we share with management articles from COS, and some other less worthy publications.”
A comment from a skeptic reads: “In my humble opinion, they are too trusting of the motivation, knowledge and understanding of their frontline supervisors or they simply believe they can manipulate the Ministry of Labour.”
There are various sources of information that safety professionals rely on to get updayed on new legislation and regulations. Government web sites were the top resource for safety leader. Only five per cent say they get it from employer communications.
Other sources cited by the respondents include lawyer presentations, the Canadian Centre of Occupational Health and Safety and their health and safety discussion groups.
Other survey comments include:
“As a safety trainer teaching various OH&S law topics, I'm always surprised at how many supervisors have little, to no idea of their roles and responsibilites under the provincial Act and it's regulations. Many have no clue where to even find them!”
“There are many cases of workplace death that have occured in this country that could have lead to charges undr this section of the Criminal Code, however the will of our Federal Prosecutors seems to be lacking in bringing cases of negligence in the workplace forward. Shame!”
“It is important to remember that under the law, the prosecutor applying Bill C-45 must show that you have experienced mens rae, which literally means "guilty mind". This means that you must have shown an overt intent to avoid following the law or otherwise not followed the law for a specific purpose. This law has been in place for years and only now has there been a conviction. It's a very difficult law to prosecute, but when used correctly, can be quite alarming in its punishments.”
One respondent comment puts Bill C-45 into perspective: “We should not be afraid of the impact of this legislation. Instead, make it a vehicle of awareness and change to improve current OH&S practices.”