Amendments to the Occupational Health & Safety Act, workplace sexual harassment: how do they affect you?

Transcription

1 Amendments to the Occupational Health & Safety Act, workplace sexual harassment: how do they affect you? Presented by: Sharan K. Basran, Manager of Litigation, and Erna Bujna, Health & Safety Specialist October 4, 2016 Ontario Nurses Association Our Union. Respected. Strong. United. 1

2 Agenda Overview of Bill 132 Amendments to the Occupational Health and Safety Act Code of Practice Ministry of Labour Workplace Violence & Harassment Guide: Understanding the Law Shortcomings of the Amendments and Response Key Messages Q&A Our Union. Respected. Strong. United. 2

3 Bill 132 Bill 132, Sexual Violence and Harassment Action Plan Act (supporting Survivors and Challenging Sexual Violence and Harassment) Amends the following: Compensation for Victims of Crime Act Limitations Act Residential Tenancies Act Private Career Colleges Act Ministry of Training, Colleges and Universities Act Occupational Health & Safety Act (OHSA) Our Union. Respected. Strong. United. 3

4 Changes to the OHSA Amendments came into effect September 8, 2016 Build on prior amendments related to workplace harassment This is in addition to pre-existing avenues which address workplace harassment, including Ontario s Human Rights Code and the Collective Agreement. Our Union. Respected. Strong. United. 4

5 Summary of Amendments Key Changes to the OHSA: Explicit recognition of sexual harassment as a form of workplace harassment Enhanced requirements for workplace harassment programs Joint Health and Safety Committee Consultation for program Duty to Investigate incidents/complaints Power of inspector to order investigations Our Union. Respected. Strong. United. 5

6 Amendments - Definitions Amendment to Definition of Workplace Harassment Workplace harassment means, (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment Our Union. Respected. Strong. United. 6

7 Amendments Definitions (cont.) Adds definition of Workplace Sexual Harassment a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome Reasonable management actions are excluded as harassment. Our Union. Respected. Strong. United. 7

8 Amendments: Workplace Harassment Program Setting Up the Program New Requirements Must be written Confidentiality requirement Must be developed and maintained in consultation with the Joint Health and Safety Committee Our Union. Respected. Strong. United. 8

9 Amendments: Workplace Harassment Program (cont.) Program reviewed as often as necessary and at least annually Must contain a mechanism to report harassment to a person other than supervisor/employer if they are the alleged harasser Sets out how incidents or complaints of workplace harassment will be investigated and dealt with Our Union. Respected. Strong. United. 9

10 Impact of Amendments on Training Employer has a duty to provide workers with information and instruction on amendments to the workplace harassment policy and program JHSC should be requesting the employer to provide training Our Union. Respected. Strong. United. 10

11 Amendments: Duties of the Employer The Employer must conduct an investigation of incidents and complaints of workplace harassment that is appropriate in the circumstances Treated seriously, timely, thorough, and by an investigator who is qualified and impartial Our Union. Respected. Strong. United. 11

12 Confidentiality & Disclosure Program must set out how information obtained about an incident or complaint will not be disclosed unless necessary for the purposes of investigating or taking corrective action, or is otherwise required by law Employer is required to inform, in writing, the complainant and harasser of the results of investigation and corrective action taken or to be taken Results of investigations are excluded as a health & safety report which must be shared with JHSC Our Union. Respected. Strong. United. 12

13 Confidentiality & Disclosure (cont.) Union s Right to Information: ONA is recognized as the exclusive bargaining agent for employees under statute Many Collective Agreements recognize that ONA has the right to represent its members during a harassment investigation Article 3.04(f) Hospital Central: Where a nurse requests the assistance and support of the Union in dealing with harassment or discrimination issues, such representation shall be allowed. Our Union. Respected. Strong. United. 13

14 Confidentiality & Disclosure (cont.) Article 4.03 (f) Central CCAC: Where an Employee requests the assistance and support of the Union in dealing with harassment or discrimination issues, such representation shall be allowed The confidentiality provisions should not impact the Union s ability to represent its members during the investigation process, which requires Union access to information obtained throughout the process. Our Union. Respected. Strong. United. 14

15 Confidentially & Disclosure (cont.) Duty to Warn What if information disclosed during a harassment investigation reveals a risk to other workers? The Employer continues to have a duty to warn workers of hazards in the workplace as required by other sections of the OHSA. This would be a disclosure required by law Our Union. Respected. Strong. United. 15

16 Confidentiality & Disclosure (cont.) JHSC not entitled to identifying information about specific investigation or report JHSC can request other information not caught under the confidentiality provision: High-level/anonymized information, including: Number of complaints and investigations opened/closed Average investigation timelines Number of investigations handled internally/externally General information on outcomes, steps or programs implemented Harassment prevention controls Data about program/policy implementation Effectiveness of program/policy Safety plans Our Union. Respected. Strong. United. 16

17 Amendments: Order Investigations An inspector from the Ministry of Labour (MOL) has the power to order an investigation into workplace harassment Ordered investigation is at the employer s cost Ordered investigation to be conducted by an impartial person with the knowledge, experience or qualifications set out by the inspector A written report to be produced Our Union. Respected. Strong. United. 17

18 Code of Practice Code of Practice to Address Workplace Harassment Under Ontario s OHSA Released by the Ministry of Labour Provides guidance on implementing workplace harassment policy and program Not mandatory, but compliance with the Code may be seen as compliance with the law Our Union. Respected. Strong. United. 18

19 Code of Practice Highlights Lays out steps to an investigation Gives direction on the role of the Union in the investigation process and program: The employer in the workplace harassment program may also want to address the role of other workplace parties. In a unionized workplace, the collective agreement may address the role of the union during an investigation. Our Union. Respected. Strong. United. 19

20 Code of Practice Problems Confidentiality Agreements: The investigator must remind the worker who has experienced workplace harassment, the alleged harasser(s) and any witnesses of any confidentiality requirements under the employer s workplace harassment program. Members should not sign, or revise agreements to protect disclosure to ONA, other supports (counselor, physician), and family Does not address the need for harassment prevention or the assessment of risks Our Union. Respected. Strong. United. 20

21 MOL Guide Useful Highlights Workplace Violence and Harassment: Understanding The Law Provides guidance on implementing workplace harassment policy and program Not mandatory Lays out suggested supports for workers: Support for workers during workplace harassment investigations may be available from a number of sources, including unions, peer support networks, joint health and safety committee members, employee assistance networks or the worker s lawyer or legal representative. The workplace harassment program should set out clear roles for all parties. Recognizes harassment to violence continuum Our Union. Respected. Strong. United. 21

22 Shortcomings of the Amendments Act doesn t recognize continuum of harassment and violence Reactive, not preventative No obligation to use impartial persons with knowledge, skills and experience for investigations, but this can be ordered by MOL Our Union. Respected. Strong. United. 22

23 Shortcomings of the Amendments (cont.) Failure to explicitly include comments or conduct that is psychological in nature in the definition of harassment Unclear whether MOL will police and ensure the adequacy of workplace harassment programs, policy and corrective actions Our Union. Respected. Strong. United. 23

24 Shortcomings of the Amendments (cont.) Confidentiality requirements: No attention to balancing confidentiality with the employer s duty to warn workers of hazards Potential isolation of victims May impair JHSC s ability to identify situations that may be a source of danger or hazard to workers May cause employers to misinterpret their obligation to share information with unions under the collective agreement Our Union. Respected. Strong. United. 24

25 ONA/JHSC Response to Shortcomings Apply confidentiality provision in a way that does not change disclosure to the Union (if employer disagrees file grievances) Ensure the program outlines high-level information to which the JHSC is entitled Request information about corrective action Remind the employer of their ongoing obligation to warn workers of hazards in the workplace and include this in the program Union to educate members to notify ONA and JHSC of employer response to their complaints Our Union. Respected. Strong. United. 25

26 Key Messages Program development: Ensure JHSC takes an active role in program development to ensure disclosure by workers to Union which is necessary to represent them during the investigation process Ensure program includes JHSC s right to high-level information and information about risks to workers Ensure program explicitly preserves the rights of the union including outlining the union s right to participate in investigations and receive investigation reports Use the Guide, Code of Practice and Collective Agreement as tools to advocate for the Program to recognize the Union s role in the investigation process Our Union. Respected. Strong. United. 26

27 Key Messages (cont.) Advise members to seek assistance from ONA, file complaints and grievances as needed If harassment becomes violence the violence provisions under OHSA are triggered Union maintains its right to represent members and access information ONA should advocate for the implementation of corrective action (safety plans, etc.) Union to monitor adequacy of investigation and call MOL if inadequate Our Union. Respected. Strong. United. 27

28 Amendments to the Occupational Health & Safety Act, workplace sexual harassment, how do they affect you? 85 Grenville Street, Suite 400, Toronto, ON M5S 3A (in Toronto) (toll-free) address of the person doing the presentation Find us on: Copyright 2016 Ontario Nurses Association Our Union. Respected. Strong. United. 28