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A recent ruling from Ontario's highest court that weighs in on the meaning of "regularly employed" workers under the province's Occupational Health and Safety Act (OHSA) has implications for the formation of joint health and safety committees (JHSC).
The January 18, 2011, ruling by the Court of Appeal for Ontario, which overturned two lower court decisions, will conceivably require the formation of new JHSCs right across the province.
That's because the top court's three-judge panel unanimously agreed that independent contractors - in this case, independent truck owner/operators - should be considered to be "regularly employed" pursuant to Section 9(2)(a) of the act, which speaks to employee thresholds for mandated JHSCs.
"The decision will have implications for a large number of Ontario employers," says Robert England, a lawyer with Miller Thomson LLP in Toronto. "In my experience, employers in Ontario are increasingly using independent contractors and temporary agencies," he says, noting that these employers will now have to consider whether a JHSC is required.
The decision could affect companies in various sectors, adds Jeremy Warning, a lawyer with Heenan Blaikie LLP in Toronto. "Employers may have workers who work as truck drivers, taxi and limousine drivers, salespersons, consultants, [and who] work predominantly from home or otherwise infrequently attend a particular workplace," he says.
Justice Eileen Gillese, writing on behalf of the panel, notes in the ruling that "reading the words 'regularly employed' in context and having regard to the purpose of the OHSA, although the truck drivers are independent contractors, they must be counted" when determining if the threshold has been met.
The case marks the first occasion that the court has had to consider the meaning of "regularly employed" under Section 9(2)(a). It was prompted by the experience of United Independent Operators Ltd, a transportation load broker based in Woodbridge, Ontario.
The ministry ordered United to create a committee and laid related oh&s charges against the company, despite its subsequent compliance with the order.
United disputed its obligation to have a JHSC, arguing that it employed just 11 full-time staff and that its truck drivers were not "regularly employed" by it. Under the act, a JHSC is required "at a workplace at which 20 or more workers are regularly employed."
"It is clear that JHSCs play a critical role in [the internal responsibility system]. JHSCs assist by increasing the ability of workers and employers to prevent and respond to dangerous and changing conditions," she says.
Meanwhile, the top court opted to stay the charge against United rather than order a new trial, pointing out that the company promptly complied with the MoL's order. It also noted that the case's central legal question was novel and that the available legal precedence did favour United's position.
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