Memorandum of Understanding Between Human Resources Development Canada and Transport Canada Respecting the Application and Enforcement of the Canada Labour Code, Part II
The purpose of this memorandum of understanding (MOU) is to establish a joint administrative arrangement between Human Resources Development Canada - Labour Branch (HRDC-Labour) and Transport Canada for the application and enforcement of the Canada Labour Code, Part II (the Code) in the federal transportation sector.
2.1. Both departments will work together to achieve the purpose of the Code which is "to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment".
2.2. This MOU is an administrative arrangement aimed at ensuring an effective and efficient occupational safety and health (OSH) program delivery in the federal transportation sector, and this MOU is available to the general public.
2.3. Both departments are committed to providing timely notification and appropriate consultation whenever the activities and responsibilities of one department directly affect the activities and responsibilities of the other.
2.4. Both departments shall co-operate and communicate openly in the application and enforcement of the Code in the federal transporation sector.
For the purpose of this MOU:
"assurance of voluntary compliance" (AVC) means an employer's or employee's written commitment to a safety officer that a contravention of the Code will be corrected within a specified period of time;
"compliance policy" means a written policy designed to guide compliance activities and ensure a consistent and uniform application and enforcement of the Code to federal employers and employees;
"direction" means a verbal or written order by a safety officer made pursuant to the Code;
"federal transportation sector" means those works, undertakings or businesses within the aviation, marine and rail industries falling within the jurisdiction of the Code;
"hazardous occurrence" means an accident, occupational disease or other hazardous situation affecting or likely to affect the health and safety of employees in relation to work;
"interpretation policy guidelines" (IPGs) means documents designed to provide guidance and clarification to safety officers on specific issues related to the application and enforcement of the Code;
"Labour Operations Information System" (LOIS) means the HRDC-Labour computerised data-collection system used for recording assignments of safety officers;
"on-board employee" means a person who is working on board an aircraft, a ship or a train while in operation, as defined in Annex 1; and who is covered by OSH regulations specific to the mode of transportation made pursuant to the Code;
"off-board employee" means a person who is not working on board an aircraft, a ship or a train while in operation, as defined in Annex 1; and who is covered by the Canada Occupational Safety and Health Regulations made pursuant to the Code;
"operations program directives" (OPDs) means written directives that provide safety officers with uniform and effective operational and administrative policies, procedures and guidelines on the application and enforcement of the Code;
"performance-based management system" means a process involving the use of performance measures and standards developed under the guidance of the Treasury Board to improve the reporting of results, rather than activities, to Parliament by federal departments and agencies; and
"safety officer": means a person designated by the Minister of Labour pursuant to subsection 140(1) of the Code.
4.1. The Minister of Labour1, has sole responsibility to Parliament for the application of the Code.
4.2. The Minister of Transport has sole responsibility to Parliament for the application of the following:
(a) the Aeronautics Act, R.S.C. 1985, c. A-2 (as amended);
(b) the Canada Shipping Act; and
(c) the Railway Safety Act.
4.3. Both Ministers are jointly responsible for making recommendations in respect of OSH regulations made pursuant to the Code covering on-board employees.
4.4. HRDC-Labour and Transport Canada are responsible for the investigation of hazardous occurrences in the aviation, marine and railway industries and for the application and enforcement of the Code.
4.5. The responsibility for the application and enforcement of the Code in the federal transportation sector is divided as follows:
4.5.1. HRDC-Labour is responsible for off-board employees; and
4.5.2.n Transport Canada, on behalf of HRDC-Labour and pursuant to the present MOU, is responsible for on-board employees.
4.6. Each department is responsible for ensuring that the Code is applied and enforced in accordance with the IPGs and OPDs issued by HRDC-Labour in consultation with Transport Canada.
4.7. Transport Canada may issue policy documents on the application and enforcement of the Code in the federal transportation sector only after it has ensured, through consultation with HRDC-Labour, that the documents are consistent with the overall federal program and policies on OSH.
1 As per the Department of Human Resources Development Act, where no Minister of Labour is specifically appointed, references to the Minister of Labour in legislation or in orders, regulations or other instruments made under legislation is to be read as a reference to the Minister of Human Resources Development, who in turn exercises the powers and performs the duties and functions of the Minister of Labour.
5.1. Every request for assistance from an employer or an employee shall receive prompt response from either department.
5.2. Upon receiving a request for assistance from an employer or an employee and determining responsibility over the request, HRDC-Labour or Transport Canada shall promptly ensure that such request is appropriately dealt with by the responsible department.
5.3. Safety officers exercise all the powers, duties and functions required to apply and enforce the Code and the Regulations made thereunder, including:
(a) advising employers and employees in the federal transportation sector on the prevention of safety and health hazards and on the means of compliance with the requirements of the Code;
(b) routinely visiting work places subject to the Code to monitor compliance with the Code;
(c) investigating refusals to work, as provided for by section 129 of the Code, and fatalities in accordance with the OPDs;
(d) investigating complaints related to safety and health and hazardous occurrences in accordance with the compliance policy, including obtaining an AVC from an employer or employee where there has been a contravention that does not constitute a danger to an employee and issuing directions to employers and employees where required; and
(e) as described in prosecution guide contained in the OPDs, seeing to the preparation of all prosecutions for non-compliance with the provisions of the Code and its regulations, and appearing in court and giving evidence when required.
5.4. A person designated as the regional safety officer at HRDC-Labour headquarters shall be responsible for reviewing in accordance with section 146 of the Code directions issued by any safety officers.
5.5 A safety officer shall not be required to give testimony in any civil suit regarding information obtained in the discharge of the officer's duties without the written permission of the Minister of Labour.
6.1. OSH compliance activities shall be conducted in accordance with OPDs, IPGs, and the compliance policy.
6.2. Both departments will co-operate in the development and implementation of OSH promotional activities aimed at employers and employees in the federal transportation sector.
6.3. Both departments will co-operate in the production of OSH educational and information material and in the provision of any other applicable assistance, such as technical services or OSH-related educational services, as required.
6.4. Where a safety and health committee is solely made up of on-board employees, Transport Canada shall lead in providing assistance to the committee.
6.5. Where a safety and health committee is solely made up of off-board employees, HRDC-Labour shall lead in providing assistance to the committee.
6.6. Where a safety and health committee is made up of a combination of off-board and on-board employees, HRDC-Labour and Transport Canada will co-ordinate their activities in providing assistance to the committee.
7.1. Persons who meet the standard of knowledge and skills required to carry out effectively the duties and responsibilities of safety officers may be recommended by their respective departments to the Minister of Labour for designation as safety officers.
7.2. Both departments shall ensure that safety officers receive the training necessary to continue to be able to carry out their duties and responsibilities effectively. Each department is responsible for providing training to its safety officers.
7.3. Both departments will work together and support each other's training sessions by providing technical expertise (on request and with appropriate notice), sharing training plans and course calendars, and making training sessions available to each other's employees (as space permits and with the appropriate sharing of costs).
8.1. HRDC-Labour maintains a number of central and regional technical OSH support services to assist in the application and enforcement of the Code. These include:
(a) industrial hygiene engineering and laboratory services;
(b) industrial safety engineering services; and
(c) OSH information services, such as HRDC-Labour's resource centre and links with the Canadian Centre for Occupational Health and Safety.
8.2. Transport Canada safety officers will have access to the above services through their headquarters and regional functional authorities, and arrangements for these services are to be made on a case-by-case basis.
8.3. On request, HRDC-Labour will provide Transport Canada headquarters with timely advice and opinions regarding the application and enforcement of the Code, and the dissemination of such advice and opinions shall be in accordance with HRDC-Labour instructions.
9.1. An interdepartmental committee on occupational safety and health (ICOSH) will be established to ensure the co-ordinated, effective and consistent application and enforcement of the Code in the federal OSH jurisdiction.
9.1.1. ICOSH is chaired by HRDC-Labour and is composed of the functional authorities (the directors general or their designated alternates) responsible for the application and enforcement of the Code.
9.1.2. The specific responsibilities of ICOSH will include, but not be limited to, participating or assisting in:
strategic planning, including the use of performance measures and reporting systems, regarding the application and enforcement of federal OSH legislation;
(b) the development, review and revision of standards and policies (e.g. OPDs, IPGs, compliance policy);
(c) the review, development and recommendation of changes to federal OSH legislation and regulations governing the federal transportation sector;
(d) the establishment of priorities in areas of mutual concern relating to federal OSH legislation;
(e) the approval of amendments to Annexes of this MOU; and
(f) the examination and resolution of policy and other issues as they may relate to the administration of this MOU.
9.1.3. ICOSH shall meet at least twice annually, or at the request of the chair.
9.1.4. The secretariat function for ICOSH will be provided by HRDC-Labour.
9.2. An ICOSH will be established for each HRDC region to consult, co-ordinate and discuss matters of mutual concern relating to application and enforcement of the Code.
9.2.1. The regional HRDC-Labour office will chair committee meetings and will be responsible for providing secretariat support.
9.2.2. ICOSH membership includes managers responsible for the delivery of the federal OSH program in each region.
9.2.3. Each regional ICOSH shall meet at least annually.
9.2.4. The regional offices of both departments shall annually exchange their respective work plans pertaining to the application of Part II of the Code.
9.3. The departments will consult with each other in the preparation of briefing materials for their respective ministers on issues directly related to the application and enforcement of the Code.
9.4. The departments will provide each other with copies of the final briefing materials submitted to their respective ministers.
10.1. HRDC-Labour gathers and analyzes information used by federal OSH officials to monitor the performance of the federal OSH program. HRDC-Labour maintains LOIS in support of this activity.
10.2. Safety officers shall collect specific information for analysis. To ensure consistent reporting of this information, the LOIS data definitions will be used. Information gathered shall include, but not be limited to:
(a) hazardous occurrences;
(c) refusals to work;
(d) AVCs received;
(e) directions issued;
(g) investigations; and
10.3. Transport Canada shall provide HRDC-Labour's NHQ with quarterly OSH activity reports for each of the aviation, marine and rail responsibilities. Transport Canada shall supply this information in hard copy and, where available, in machine readable form.
10.4. On request, both departments will exchange copies of records or investigation reports by safety officers.
10.5. Upon agreement by both departments, HRDC-Labour's NHQ will undertake a specific analysis of the following to monitor the application and enforcement of the Code in the federal transportation sector, and provide the results within a reasonable period of time:
(a) federal OSH performance;
(b) hazardous occurrences, injuries, illnesses or fatalities; or
(c) any other area.
11.1. The Minister of Labour is responsible for reporting to Parliament on the performance of both departments as it relates to the application and enforcement of the Code.
11.2. HRDC-Labour, with the advice of the ICOSH, will define, develop and implement a performance-based management system to measure the effectiveness of the application and enforcement of the Code.
11.3. In evaluating the application and enforcement of federal OSH legislation, HRDC-Labour, with the advice of the ICOSH, will take into account the following factors in support of the performance-based management system:
(a) provision for measurable objectives, performance standards and a common performance-measurement process as required by Treasury Board;
(b) agreement on specified periods during which evaluations will be undertaken;
(c) analysis of resource utilization and cost-sharing practices related to arrangements contained in the MOU; and
(d) joint departmental management of evaluation projects for the federal transportation sector, with evaluation/review groups from each department serving in objective capacities.
12.1. Disputes between the two departments relating specifically to this MOU will be resolved by the following manner in the order given:
(a) Headquarters (functional responsibilities concerned);
(b) ICOSH; and
(c) the Assistant Deputy Minister, HRDC-Labour, and Assistant Deputy Minister, Safety and Security, Transport Canada.
12.2. Where no resolution of a dispute is achieved, the Deputy Minister of Labour will be responsible for rendering a decision.
13.1. Amendments specific to this agreement shall be made in writing and signed by the Assistant Deputy Minister, HRDC-Labour, and the Assistant Deputy Minister, Safety and Security, Transport Canada.
13.2. Amendments to this agreement shall be initiated by an exchange of letters between the Assistant Deputy Minister, HRDC-Labour, and the Assistant Deputy Minister, Safety and Security, Transport Canada.
13.3. This MOU shall remain in force until either department gives written notice of its intention to terminate the MOU and 180 days elapse.
14. ENTIRE AGREEMENT
14.1. The departments agree that this MOU constitutes the entire agreement between them and supersedes all previous negotiations, communications and other agreements relating to the subject matter unless these are incorporated by reference in this MOU.
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