Bill 29 2007

An Act to amend the Occupational Health and Safety Act to protect workers from harassment and violence in the workplace

Note: This Act amends the Occupational Health and Safety Act.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History on www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  The Occupational Health and Safety Act is amended by adding the following Part:

Part V.1
Harassment and violence

Interpretation

Definitions

   49.1  (1)  In this Part,

"harassment" means engaging in a course of vexatious comment or conduct that constitutes a threat to the health or safety of a worker and that is known or ought reasonably to be known to be unwelcome and that may adversely affect the worker's psychological or physical well-being; ("harcèlement")

"violence" means the threatened, attempted or actual exercise of any physical force by a person that endangers the physical health or safety of a worker, and includes any threatening statement or behaviour that gives a worker reasonable cause to believe that he or she is at risk of physical injury; ("violence")

"workplace related harassment or violence" means,

  (a)  harassment or violence, whether or not the harassment or violence occurs at the workplace, by,

           (i)  a worker's employer or supervisor,

          (ii)  another worker who works at the same workplace,

         (iii)  a client, patient, customer or other person who receives services from the employer,

         (iv)  an agent, representative or family member of a person described in subclauses (i) to (iii), or

          (v)  any other person on the employer's premises, or

  (b)  harassment or violence that has the effect of interfering with the performance or safety of any worker at the workplace or that creates an intimidating, hostile or offensive work environment for any worker. ("harcèlement ou violence lié au lieu de travail")

Establishment of harassment or violence

   (2)  To constitute harassment or violence for the purposes of this Part, one of the following must be established:

    1.  Repeated conduct, comments, displays, actions or gestures.

    2.  A single, serious occurrence of conduct or a single, serious comment, display, action or gesture that has or may have a lasting and harmful effect on the worker.

Employer's duties

   49.2  (1)  In addition to the duties imposed under sections 25 and 26, an employer shall, in consultation with the Joint Health and Safety Committee or other health and safety representative,

  (a)  ensure that every worker is protected from workplace related harassment or violence;

  (b)  prepare, as part of the occupational health and safety policy required under clause 25 (2) (j), guidelines and processes for identifying, eliminating and dealing with incidents of workplace related harassment or violence, including such guidelines and processes as may be prescribed; and

   (c)  develop and deliver regular harassment and violence prevention training for its workers, including those who exercise managerial functions, and require workers to attend the training provided.

Same

   (2)  If workplace related harassment or violence occurs or an employer has reason to believe is likely to occur, the employer shall,

  (a)  ensure that the source of the harassment or violence is identified and that the harassment or violence is prevented or stopped and, where necessary, remove the source of the harassment or violence from the workplace;

  (b)  ensure that the appropriate law enforcement agency is contacted where appropriate;

   (c)  ensure that adequate steps are taken to remedy the effects of the harassment or violence; and

  (d)  compensate the worker for any absences from the workplace related to the  harassment or violence that are not otherwise compensated for under the Workplace Safety and Insurance Act, 1997.

Provide resources

   (3)  The employer shall provide sufficient resources to carry out the actions described in subsection (2).

Right to refuse to work

   49.3  (1)  A worker may refuse to work or do particular work where he or she has reason to believe that workplace related harassment or violence is likely to endanger himself, herself or another worker.

Report of refusal to work

   (2)  Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker's employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

  (a)  a committee member who represents workers, if any;

  (b)  a health and safety representative, if any; or

   (c)  a worker who because of knowledge, experience and training is selected by a trade union that represents the worker or, if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

Worker to remain near work station

   (3)  Until the investigation is completed, the worker shall remain in a safe place near his or her work station.

Refusal to work following investigation

   (4)  Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that workplace related harassment or violence continues to be likely to endanger himself, herself or another worker, the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof. 

Investigation by inspector

   (5)  An inspector shall investigate the refusal to work in consultation with the employer or a person representing the employer, the worker and, if there is such, the person mentioned in clause (2) (a), (b) or (c).

Same

   (6)  Until the investigation is completed, the inspector may order the removal from the workplace of any person who interferes with the investigation or who in the inspector's opinion may be a source of the workplace related harassment or violence.

Decision of inspector

   (7)  The inspector shall, following the investigation referred to in subsection (5), decide whether workplace related harassment or violence has or is likely to endanger the worker or another person.

Same

   (8)  The inspector shall give his or her decision in writing as soon as is practicable to the employer, the worker and, if there is such, the person mentioned in clause (2) (a), (b) or (c). 

Worker to remain at a safe place pending decision

   (9)  Pending the investigation and decision of the inspector, the worker shall remain at a safe place near his or her work station during the worker's normal working hours unless the employer, subject to the provisions of a collective agreement, if any,

  (a)  assigns the worker reasonable alternative work during such hours; or

  (b)  subject to section 50, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker.

Duty to advise other workers

   (10)  Pending the investigation and decision of the inspector, no worker shall be assigned to work with or around the person being investigated unless, in the presence of a person described in clause 2 (a), (b) or (c), the worker has been advised of the other worker's refusal and of his or her reasons for the refusal.

Entitlement to be paid

   (11)  A person shall be deemed to be at work and the person's employer shall pay him or her at the regular or premium rate, as may be proper, for the time spent by the person carrying out the duties under subsections (2), (5) and (10) of a person mentioned in clause 2 (a), (b) or (c).

Same

   (12)  Until the matter is finally disposed of, a worker who does not return to the workplace under subsection (1) or (4) is deemed to be at work during the hours the worker would normally have worked and the worker's employer shall pay the worker for those hours at the regular or premium rate, whichever would otherwise apply.

Inspector's order

   49.4  (1)  If an inspector determines that workplace related harassment or violence has occurred or is likely to occur, the inspector shall order the employer to make such arrangements at the workplace as the inspector determines to be necessary to prevent further occurrences.

Same

   (2)  An order under subsection (1) must be in writing and may require the employer to comply forthwith or within a period of time set out in the order.

Application

   (3)  Subsections 57 (4), (5), (9), (10) and (11) and sections 59 and 61 apply with necessary modifications to an order made under subsection (1).

Worker's rights

   49.5  Despite the provisions of any other Act, nothing in this Part precludes any rights, protections and remedies that a worker may have under another Act in respect of harassment or violence.

Commencement

   2.  This Act comes into force on the day it receives Royal Assent.

Short title

   3.  The short title of this Act is the Occupational Health and Safety Amendment Act (Harassment and Violence), 2007.

 

EXPLANATORY NOTE

The Bill amends the Occupational Health and Safety Act to require employers to protect workers from harassment and violence in the workplace, to give workers the right to refuse to work in certain circumstances when faced with harassment or violence, to require an investigation of allegations of workplace related harassment and violence, and to require employers to take steps to prevent further occurrences of workplace related harassment or violence.