Advisory Circular (AC) No. LTA-003

Participation of Health and Safety Committees and Representatives in Investigations of Hazardous Occurrences – Canada Labour Code, Part II

Issuing Office:	Standards
Activity Area:	Education	Document No.:	AC LTA-003
File No.:	A 5240-13 U	Issue No.:	01
RDIMS No.:	4807149-V13	Effective Date:	2009-09-10

1.0 INTRODUCTION
2.0 REFERENCES AND REQUIREMENTS
3.0 BACKGROUND
4.0 PROCEDURES
5.0 CONCLUSION
6.0 CONTACT OFFICE

1.0 INTRODUCTION

This Advisory Circular (AC) is provided for information and guidance purposes. It may describe an example of an acceptable means, but not the only means, of demonstrating compliance with regulations and standards. This AC on its own does not change, create, amend or permit deviations from regulatory requirements, nor does it establish minimum standards.

1.1 Purpose

The purpose of this AC is to provide air operators and their employees with clarifications pertaining to the word “participation” found in the Canada Labour Code, Part II (CLC) as it relates to investigations and inquiries, more precisely as per subsections 125.(1), 134.1(4), 135.(7) and 136.(5) of the CLC.

1.2 Applicability

This AC is applicable to air operators under federal labour jurisdiction, in regards to their employees working on board aircraft in operation.

1.3 Description of Changes

Not Applicable.

2.0 REFERENCES AND REQUIREMENTS

2.1 Reference Documents

It is intended that the following reference materials be used in conjunction with this document:

Canada Labour Code, Part II ( R.S., 1985, c. L-2 );
Aviation Occupational Safety and Health Regulations (SOR/87-182);
Safety and Health Committees and Representatives Regulations (SOR/86-305);
935-1-IPG-004/ Interpretation, Policies and Guidelines (IPGs): “Participation of the Safety and Health Committee or Representative in Inquiries and Investigations”, Human Resources and Skills Development Canada – Labour Program (HRSDC – Labour Program).

2.2 Cancelled Documents

Not applicable.

2.3 Definitions and Abbreviations

The following definitions and abbreviations are used in this document:

CLC: Canada Labour Code, Part II.
HSR: Health and Safety Representative means a person who is appointed as a health and safety representative under section 136 of the CLC.
OPD and IPG: Operational Program Directives (OPDs) are developed by Human Resources and Skills Development Canada – Labour Program to describe the policies and procedures the Labour Program staff must follow when enforcing the Canada Labour Code and related Regulations, or performing associated activities. Broadly speaking, the OPDs outline who does what, when. Interpretations, Policies and Guidelines (IPGs) are developed by the Labour Program to provide interpretations of specific provisions in the Canada Labour Code and related Regulations, and to provide more detailed policies on issues that have been covered generally in an OPD. OPDs and IPGs are intended to ensure that programs are delivered effectively and consistently across the country. OPDs and IPGs are available to the general public, and therefore may be used by clients to understand departmental policies, procedures and interpretations.
Participation: The Canadian Oxford Dictionary, Second Edition, 2004 defines this word as “share or take part in an action or enterprise.” The Black’s Law Dictionary, Eight Edition, 1999 defines the term as “the act of taking part of something.”
Policy Committee: Policy Health and Safety Committee established under section 134.1 of the CLC
TOR: Terms of Reference. Points referred to a Work Place Committee (WPC) for decision or report; document which established the scope and the role of the committee for inquiries and investigations.
WPC: Work Place Committee means a Work Place Health and Safety Committee established under section 135 of the CLC.

3.0 BACKGROUND

There seems to be some confusion in the interpretation and use the word “participation” in the aviation industry, as it relates to investigations and inquiries conducted under the CLC, Part II.
The term “participate” is not defined in the CLC. Any word that is not specifically defined in an Act should be given its ordinary meaning after considering the context in which it appears and the purpose of that Act. Indeed, when a term is not defined in an Act or in the Interpretation Act the Canadian Courts refer to the English dictionary definitions. The Government of Canada follows the practice of the Canadian Courts. The Black’s Law Dictionary defines “participation” as “the act of taking part in something, such as a partnership, a crime or a trial”, and the Canadian Oxford Dictionary defines it as “share or take part in an action or enterprise”. In other words, to “participate” in an investigation – or in an investigative process and inquiries- implies active involvement of the committee or representative.
This interpretation applies to all instances where the Work Place Committee (WPC) or the Health and Safety Representative (HSR), and if applicable, the Policy Committee are required to participate, including where they take part in an investigation or an inquiry as soon as they are made aware of the hazardous occurrence.

4.0 PROCEDURES

The “participation” of the WPC or the HSR, and if applicable, the Policy Committee could include but is not limited to: reviewing the hazardous occurrence report, attending the occurrence scene, interviewing witnesses, and seeking experts’ opinion. The CLC provides for the direct participation in an inquiry or investigation. Although the employer has the responsibility for conducting investigations as outlined in paragraph 125.(1)(c) of the CLC, there is a mandatory obligation on the part of the WPC or the HSR to participate in all inquiries and investigations. With regard to the participation of the Policy Committee according to paragraph 134.1(4)(d) of the CLC, this participation is only to the extent that it considers necessary. In regard with the WPC, subsection 135.(7) of the CLC stipulates the powers given to the WPC. More specifically, paragraph 135.(7)(e) of the CLC states:

“A work place committee, in respect of the work place for which it is established shall participate in all inquiries, investigations, studies and inspections pertaining to the health and safety of the employees, including any consultations that may be necessary with persons who are professionally or technically qualified to advise the committee on those matters”.
The “participation” of the WPC or the HSR is therefore unequivocal, non-ambiguous and far-reaching. The WPC or the HSR must take part in “all inquiries, investigations, studies and inspections pertaining to the health and safety of the employees” at a given work place. Not only does the CLC give the authority to the committee to “take part” on those investigations it imposes an obligation on the committee to do so. Furthermore, in order that the underlying principle is well understood the legislator specifies the “Duties of Employers” in sections 124 to 125.3 of the CLC. In accordance with paragraph 125.(1)(z.08) of the CLC, the employer must “cooperate with the policy and work place committee or the health and safety representative in the execution of their duties”. It is the duty of the WPC or the HSR to “take part” in investigations and it is the obligation on the part of the employer to cooperate. In this regard and as outlined in paragraph 134.1(4)(d) of the CLC, the Policy Committee has the duty only if deemed necessary. In other words, the employer must cooperate and facilitate the participation of the WPC or the HSR, and when applicable, of the Policy Committee.
The spirit of “participation” also appears in principle and is embedded in the Aviation Occupational Safety and Health Regulations. Section 9.3 of the said Regulations states:

(a) “Where an employer is aware of an accident, occupational disease or other hazardous occurrence affecting any of the employees in the course of employment on an aircraft, the employer shall, as soon as possible:

(i) take necessary measures to prevent a recurrence of the hazardous occurrence;

(ii) appoint a qualified person to carry out an investigation of the hazardous occurrence; and

(iii) notify the safety and health committee or the safety and health representative, if either exists, of the hazardous occurrence and of the name of the qualified person appointed to investigate it”.
The regulator is even more explicit in using “shall”; in other words, the employer is obligated to notify the committee and identify the qualified person who will be appointed to investigate the hazardous occurrence. And as per section 9.6 of the Aviation Occupational Safety and Health Regulations: “the employer shall, without delay, send a report in writing to the safety and health committee or the safety and health representative, if either exists, where an investigation referred to in section 9.3…” for particular situations enumerate in subsection 9.6(1).
To ensure hazardous investigations or inquiries are conducted jointly between the employer and the employee a process should be established. This process is normally put in place by well-written terms of reference (TOR). As per subsection 135.1(14) of the CLC:

“…A committee shall establish its own rules of procedure in respect of the terms of office, not exceeding two years, of its members and the time, place and frequency of regular meetings of the committee and may establish any rules of procedure for its operation...”
Clear, transparent and well-developed WPC or HSR’s TOR, and when applicable, Policy Committee’s TOR will go a long way in ensuring the role and responsibilities of each one (employer and committees) when conducting an investigation. Such well-established rules will avoid any misunderstanding as to how the investigation should be conducted. The employer and employee representatives at the WPC or the employer and the HSR, and when applicable, the Policy Committee should develop these TORs. These could include but not limited to the WPC or the HSR, and when applicable, to the Policy Committee:
1. to participate in investigations and enquiries;
2. how they will participate;
3. who will participate - one or more representatives of the committee or someone delegated by the committee;
4. how will participation be carried out when long distances are involved. There is a possibility of delegating the investigative responsibility to a qualified person who is on site and who will act on behalf of the Committee in accordance with IPG no. 935-1-IPG-004: ‘’Participation of the Safety and Health Committee or Representative in Inquiries and Investigations’’, HRSDC – Labour Program.
In the event of a hazardous occurrence abroad there is a possibility of delegating the investigative responsibility to a qualified person who is close to the hazardous occurrence site and who will act on behalf of the WPC or the HSR, and when applicable, of the Policy Committee. The responsibility for the investigation remains with the employer and, although not specifically written in the CLC, the qualified person named by the employer will report the results to the employer who shall provide a copy of the report to the WPC or the HSR, and when applicable, to the Policy Committee.

5.0 CONCLUSION

Although the legislation does not define the term “participate” per se, we should interpret this term as “taking part”. In the context of this document it means taking part in investigations or an inquiry conducted by the WPC or the HSR, and when applicable, by the Policy Committee. The level of participation in an investigation or an inquiry is determined by the WPC or the HSR, and may imply that the investigation is physically done jointly with the employer.
The employer must cooperate with the WPC or the HSR, and when applicable, with the Policy Committee, in the execution of their duties.
In addition, the fundamental principle of the word “participation” is also found in the Aviation Occupational Health and Safety Regulations as an extension of the CLC.
When we examine the legislator’s intention in the writing of the CLC, there is no doubt that he wanted:
1. the WPC or the HSR or, if necessary, the Policy Committee to participate in inquiries and investigations;
2. the employer to seek the WPC or the HSR or, when necessary, the Policy Committee for their participation in any inquiry or investigation; and
3. the employer must cooperate, facilitate that participation.
The WPC or the HSR, and when applicable, the Policy Committee must develop proper TOR to establish the framework by which those investigations are going to be conducted. It is better to have such procedures established prior to an occurrence rather than after the fact.
In the event of a hazardous occurrence abroad, the responsibility of the WPC or the HSR or, if deemed necessary, the Policy Committee to participate in the investigation of this aviation occurrence may be delegated to a qualified person who is close to the hazardous occurrence site rather than having the Committee member(s) travel to the site. When delegating the investigative responsibility to a qualified person, this one acts on behalf of the WPC or the HSR, and when applicable, of the Policy Committee. The responsibility for the investigation remains with the employer and the qualified person named by the employer will report the results to the employer, who shall provide a copy of the report to the WPC or the HSR, and when applicable, to the Policy Committee.
In closing, the intent of the word participation is to allow the parties to work cooperatively and to exhaust all avenues given by the CLC. As a general rule, when the word “participation” is found in the CLC, it should be inclusive and not exclusive; it should therefore include the WPC or the HSR, and where necessary, the Policy Committee and the employer should do their utmost in ensuring their inclusion and work cooperatively with their representatives. When the word “participation” is found in the CLC, it should never be construed to impede the right of the employees represented by the WPC or the HSR, and when applicable, by the Policy Committee. It is trough a WPC that employees are given the right to be informed of known or foreseeable hazards that are present in their work place and to participate in identifying and correcting occupational health and safety concerns.

6.0 CONTACT OFFICE

For more information please contact the: Chief, Aviation Occupational Health and Safety (AARTH)

Phone: 613-991-1271
Fax: 613-954-1602
E-mail: jacques.servant@tc.gc.ca

Suggestions for amendment to this document are invited and should be submitted via the Transport Canada Civil Aviation Issues Reporting System (CAIRS) at the following Internet address:

https://tc.canada.ca/en/aviation/civil-aviation/civil-aviation-issues-reporting-system-cairs

or by e-mail at: CAIRS_NCR@tc.gc.ca

Original signed by D.B.Sherritt on 2009-09-21

D.B. Sherritt
Director, Standards
Civil Aviation