July 20, 2022
- Adoption of Agenda
The agenda was adopted. - Presentation: Administrative Monetary Penalties (AMPs)
Marcia Edgar, Manager, and Ceayon Johnston, Senior Program Advisor, OSH Compliance and Operations, Labour Program, Employment and Social Development Canada (ESDC), indicated that Administrative Monetary Penalties (AMPs) were introduced into the Canada Labour Code (Code) on January 1, 2021: Part IV – Administrative Monetary Penalties. M. Edgar explained that AMPs were introduced as an intermediary step on the compliance continuum between a direction and a prosecution. She reminded the Committee that the continuum starts with education, and proceeds through an Assurance of Voluntary Compliance (AVC), direction, AMP, and may ultimately end with a prosecution.
M. Edgar explained that an AMP results from a violation of a legislative or regulatory requirement, serves as a financial deterrent to non-compliance and is an additional compliance tool but is not intended to replace prosecution. She clarified that AMPs may be issued under the general principle or by exception, if there are reasonable grounds to believe a violation has occurred. She reiterated that the goal is to obtain compliance. In order to reach compliance, there may be multiple AMPs in combination with other compliance actions issued for multiple violations.
M. Edgar noted that AMPs are issued for violations listed under Schedule 1 or 2 of the Code Part IV. She reviewed the categories of violations outlined in the Schedules from classifications A through E as explained on the Interpretations, policies and guidelines (IPGs) webpage. She also reviewed who may receive a Notice of Violation (NoV), which may include an AMP, being legal or natural persons and stated that the NoV is usually served to the most senior person at the implicated workplace or department.
C. Johnston explained how the general principle is applied in a situation where a violation has been reported, going through the diagram of the general principle from the IPG webpage. She noted that, at the point where a direction may be appealed, should the non-compliance continue, the regulator has a choice of compliance tool: AMP or prosecution. She specified that this is an either/or option; one cannot receive an AMP and then be prosecuted for the same NoV. Each violation is closely examined to determine the most appropriate measure to ensure compliance. C. Johnston articulated that the compliance history of an employer is also considered, specifically where a compliance action was taken previously for the same type of violation, however the action continues or is repeated. She clarified that this is considered a new violation under Part IV of the Code and that the regulator is therefore able to make a new choice on how to proceed from the compliance continuum.
An exception to the general principle may occur whereby an AMP may be issued at the same time as a direction, or as soon as the violation has been detected and confirmed. C. Johnston asserted that in such a situation, the AMP would serve as a penalty for the violation having occurred and the direction would order the employer to take steps to prevent the violation from continuing or recurring.
C. Johnston clarified the process for calculating the amount of the AMP, which consists of two (2) steps. The first step is to identify the violation and the category it falls under in Schedule 1 or 2. The second step is to identify the recipient, either an individual or, in the case of the federal public service, a large business. She noted that further consideration may be given for a history of non-compliance, called an aggravating factor. If the Employer had received a previous NoV for the same type and class, or higher, of violation; was found guilty of an offence following a successful prosecution; or was subject to an injunction; all for an issue under the same part of the Code, then an aggravating factor of up to 200% may be added so the AMP would be three (3) times the base amount. She specified that there is a maximum AMP amount of $250,000 under Part IV of the Code.
C. Johnston affirmed that there is an early payment option that results in a 50% reduction in AMP amount for violations within categories A, B or C if paid within 20 days. She stated that there is no such provision for Category D or E violations; those AMPs must be paid in full. She noted that, once an AMP has been paid, the violation is deemed to have been committed. It was further specified that, even if the AMP has not been paid, the violation is still deemed to have been committed, unless a review or appeal has been requested resulting in the AMP being dismissed.
C. Johnston also recalled the requirements for a request for review, including timelines, format and reasons why the review should proceed. Should the request for review not be received within the applicable timeframe, she indicated that the request must also include the grounds which prevented the timeline from being respected. C. Johnston indicated that the request for review is then assessed by the AMP review unit to determine if the issue is more appropriately treated as an administrative review or should be sent to the Canada Industrial Relations Board (CIRB) for appeal. In the case of the former, she specified that the unit reviews the file and issues a review decision to uphold, modify or rescind the AMP. This review decision may be appealed. In the latter situation, the CIRB may uphold, modify or rescind the AMP amount.
C. Johnston emphasized that another consequence for employers that commit Category B, C, D or E violations is to be named publicly on the Government of Canada website. She mentioned that this applies only to employers or departments; no individual person will be so named. She clarified that the public notice will be removed only once two (2) years have passed from the point when the violation was corrected and the AMP was paid.
The Committee appreciated the presentation and posed many technical questions in how AMPs apply to the federal public service. It was remarked that there are also very small government departments that call into question the fact that all departments are to be treated as a large business. C. Johnston clarified that the designation is part of the Labour Program’s policy, not the Code itself, and therefore will take the comment under advisement to ensure that this is considered when decisions are made regarding compliance actions.
M. Gosselin questioned whether there is consideration given to the scope of the continuation or repetition of a violation; where the violation may have been worksite specific but the violation may also be repeated at other worksites. C. Johnston noted that this issue is being examined in the context of a local matter versus a universal matter to ensure the appropriate use of AMPs and it was remarked that this circumstance may be detected when reviewing the compliance history. - Update from the Sub-Committees:
- OHS Training/Learning Sub-Committee: Quarterly Statistics – OHS Training Module Templates
The Committee Advisor shared the 2021-2022 fiscal year Quarter 4 (Q4) statistics between meetings and highlighted that there has been an approximately 29% increase in unique pageviews from Q3 to Q4. - Harassment and Violence Prevention Tools Working Group
A. Peart advised that the working group met frequently during the lead up to the April 4, 2022, web event. The feedback from the event was resoundingly positive. A. Peart indicated that the working group plans to work over the summer drafting new tools and requested the Committee provide feedback of any new points of confusion that they hear about as the COVID restrictions ease.
- OHS Training/Learning Sub-Committee: Quarterly Statistics – OHS Training Module Templates
- Standing Items
- Asbestos
Nil.
- Mental Health
Michelle McLaren, Manager, Outreach and Engagement, Office of the Chief Human Resources Officer, Treasury Board Secretariat (TBS) provided an update on mental health activities since the last meeting. She provided an update on the advisory board for the Centre of Expertise on Mental Health in the Workplace (CoE), indicating they have been discussing suggested priorities for the CoE. She indicated that the proposed priorities include stabilization of the CoE; the Mental Health for Black Employees Fund; mental health for executives, mental health support improvements; outreach, engagement and promotion; and mental health supports for return to work.
M. McLaren noted the success of Mental Health Awareness week with its focus on empathy and the importance of listening for understanding, highlighting the CSPS event on the prevention and management of burnout at work on May 5, 2022, which surpassed its target. She mentioned upcoming activities including a joint meeting with the mental health Office of Primary Interest network and the mental health champions during which they expect several presentations. She updated the status of the Committee for Mental Health Support Mechanisms, which is expected to complete its study in June and will then produce the report and recommendations.
M. McLaren shared the recent release of the CoE’s mental health dashboard to assist in the continuous improvement of psychological health and safety in the workplace for the federal public service. The dashboard provides scores based on the 2019 and 2020 Public Service Employee Survey results broken down by various demographic categories and department and follows the Statistics Canada model. The Committee congratulated the CoE on the release of the dashboard, noting that people management in the area of mental health has been lacking a systematic and systemic measuring and tracking tool, and hope that this tool will allow for evidence-based discussions with departments. To further facilitate this, it was suggested that some tools be developed to provide guidance material on how to assess the psychosocial risk factors, how to mitigate those risks and identify common control measures. - Harassment: Harassment and Violence Tracking Information
A. Peart shared her concerns with the information being reported to the Labour Program by departments on training and tracking provisions of the Work Place Harassment and Violence Prevention Regulations (Regulations). She noted that the policy committees do not appear to have been consulted, nor were SWOHS or the Joint Employment Equity Committee (JEEC), in the creation of the tracking document. Some concerns A. Peart shared included the fact that the document provides raw numbers only without indications of intersectionality as well as lacking a comprehensive and logical report of the situation within the department.
A. Peart suggested that the document be redesigned for the public service to allow the collection of both raw data as well as providing a more consistent and comprehensive reporting mechanism. The Committee supported the tasking of this to the HVP Tools Working Group. - Legionella
C. Truax noted that cooling systems are being started up due to the changes in weather and that monitoring is ongoing.
- Asbestos
- Other Items
- Ages Drive building and Silica
A. Peart noted that there was a hazardous incident at the Ages Drive location involving silica that bears review by the SWOHS in terms of the associated Hazard Prevention Plan (HPP). An update on the actions being taken by the affected department was provided and it was recognized that the departmental response is ongoing at this time. A. Peart noted that the HPP should be constantly updated in light of existing and new hazards, such as COVID-19. To that end, an audit of HPPs was suggested to identify any best practices that could be shared with the OHS community. One suggestion was to request that departments share their HPP, or a portion thereof, that they feel is particularly well done, for SWOHS to review. PSPC indicated that there will be a lessons learned plan resulting from the incident at Ages Drive that could be shared after completion.
A. Peart advised that the Public Service Alliance of Canada (PSAC) created a template HPP that appears more suitable for the federal public service than that offered by the Labour Program as the latter is intended for use by the entirety of the federal sector. It was suggested that this template could be incorporated into the guidance SWOHS develops to provide to the policy committees.
- Vaccine Policy
A. Peart noted that the updated vaccination policy was expected to be released by TBS in early April as announced, but thus far there has been no update, nor has a date for the release been announced. C. Vézina responded that the early April date was for a review of the policy, which is underway. He was unable to provide additional timelines. C. Fraser noted that this is also a subject of interest at the regular COVID calls with the Bargaining Agent presidents and TBS.
- Proposed joint Joint Employment Equity Committee (JEEC) - SWOHS meeting on regulatory framework on violence and harassment
A. Peart proposed that SWOHS meet with JEEC to look at updating and integrating the “Is it Harassment?” information from Part XX of the Code to align with the new Regulations. The Committee Advisor noted that JEEC is seeking to collaborate with SWOHS and therefore she and the JEEC Advisor will be setting up a meeting with the co-chairs of both Committees to discuss areas where they may work together.
- Sub-Committee membership
The Committee Advisor provided an update on the membership of the various sub-committees and requested Committee members to advise the co-chairs and herself if they are interested in participating on any of the sub-committees.
- Ages Drive building and Silica
- Round table
The Committee Advisor noted that with the return to 100% occupancy, she will be looking to schedule upcoming meetings in person. N. Porteous indicated that there are support parameters in place for this scenario and that guidance and support may be sought from the TBS OHS unit or Public Service Occupational Health Program. D. St-Jean asked if there would be an option for those who wish to attend remotely. The Committee Advisor advised that the meeting room has been updated to allow for hybrid in-person / Microsoft Teams meetings, and that the Secretariat staff has been testing this capacity successfully during meetings.
Next Meeting
The next meeting is scheduled for July 21, 2022.