Position Paper on Safety Management System
Requirements in the Canadian Aviation Regulations
and the Health and Safety Policy Requirements of the
Canada Labor Code

• Purpose
• Background
• SMS requirements under the Canadian Aviation Regulations
• Health and Safety Obligations under the Canada Labour Code, Part II
• SMS objectives under the CARs vis a vis Health and Safety Objectives under the CLC
• Reporting Requirements and Information Distribution in the CARS SMS Framework
• Reporting Requirements and Information Distribution in the CLC Health and Safety Framework
• Overlaps
• Contextual Relationship
• Conclusion
• Regulatory Comparison Table

Purpose

This paper is intended to provide clarification on the health and safety policy requirements mandated in the Canada Labor Code (CLC) and the safety management system (SMS) requirements of the Canadian Aviation Regulations (CARs). Specifically, this document will look at the objectives of the systems and elaborate on where the system requirements may overlap, what the similarities are and what process should be applied when these similarities occur.

Background

In 1999 Transport Canada introduced Flight 2005: A Safety Framework for the Future of Civil Aviation in Canada. The document put forth six Evolving Directions for the Civil Aviation Program; the most far reaching of these was the introduction of safety management systems across the regulatory spectrum. As a result of Flight 2005, Transport Canada promulgated notice of proposed amendments to the CARs that, when published, will require every holder of an operations certificate issued by Transport Canada to establish a safety management system in their organization.

In addition to the proposed SMS CARs requirements, since 2000 all operations certificate holders have been required to establish a health and safety policy in accordance with Part II of the Canada Labour Code. As defined in this document, the SMS requirements of the CARs are far more comprehensive and overarching than those of the Canada Labour Code. However, it should be mentioned that the Canada Labour Code prevails over other legislative acts such as the Aeronautics Acts. Any requirements contained in the Labour Code, therefore, apply “notwithstanding” and take precedence over other legislative requirements. As such it is important to understand what the requirements are and how they interrelate.

SMS requirements under the Canadian Aviation Regulations

From the Civil Aviation perspective a safety management system means a “systematic, explicit, comprehensive and proactive process for managing risks that integrates operations and technical systems with financial and human resource management to achieve safe operations and compliance with the Canadian Aviation Regulations. In accordance with the notice of proposed amendment to Part I of the CARs the basic elements of a safety management system are:

1. A safety policy;
2. A process for planning and measuring safety performance;
3. A process for identifying hazards and evaluating and managing safety risks;
4. A process for ensuring that personnel are trained and competent to perform their duties;
5. A process for proactive internal reporting and analysis of incidents and accidents, and for taking corrective measures to prevent their recurrence;
6. Documentation of all Safety Management System processes, and a process for ensuring that personnel are aware of their responsibilities in regards to them;
7. A process for conducting reviews or audits of the Safety Management System processes, and a process for ensuring that personnel are aware of their responsibilities in regards to them;
8. Any additional safety management system requirements that are prescribed under the Part of the Canadian Aviation Regulations under which the operations certificate is issued.

Health and Safety Obligations under the Canada Labour Code, Part II

Canadian occupational health and safety legislation is primarily based on three fundamental rights of workers:

1. the right to be informed of known or foreseeable safety or health or safety hazards in the work place;
2. the right to participate as members of health and safety committees, or as health and safety representatives; and
3. the right to refuse dangerous work and be protected against dismissal or disciplinary action following a legitimate refusal.

In September 2000, Bill C-21 introduced additional health and safety obligations that strengthened the government’s commitment towards the stated purpose of the CLC, which is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.

Some of the legislated health and safety obligations in the CLC are:

1. Employers must post a statement of their policy concerning the health and safety of employees at work.
2. Employees must report to the employer any thing or circumstance in a work place that is likely to be hazardous to the health or safety of the employees.
3. Employers must ensure each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works.
4. Employees must report every accident or other occurrence arising in the course of, or in connection with the employee’s work, that has caused injury to the employee or to any other person.
5. Employers must investigate, record and report all accidents, occupational diseases and other hazardous occurrences they are aware of, and take the necessary corrective measures to prevent a reoccurrence.
6. Employees must report to the employer any situation that the employee believes to be a contravention of the CLC by the employer, another employee or any other person.
7. Employers must provide to health and safety committee members or representatives, a copy of all reports dealing with hazards in the work place.
8. Health and safety committee members or representatives, shall have full access to all government and employer reports, studies and tests, or portions thereof, relating to the health and safety of employees.
9. Employers are to provide appropriate health and safety training to their employees.
10. Health and safety committee members or representatives 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 on those matters.
11. Employers must implement an internal complaint resolution process to assist parties in the work place in resolving health and safety related problems, in an independent and timely manner.
12. Employers shall not take any disciplinary action, or threaten to take any such action, against an employee who has acted in accordance with the CLC or has sought the enforcement of any of the provisions of the CLC.

A complete listing of the CLC employer, employee, committee member and representative duties is available at the following website:

http://laws.justice.gc.ca/en/L-2/248827.html

SMS objectives under the CARs vis a vis Health and Safety Objectives under the CLC

While the requirements of both programs contain some of the basic elements of a safety management system and focus on identifying systemic deficiencies rather than blaming the individual, their objectives are quite different. Part II of the Canada Labour Code defines safety as “protection from danger and hazards arising out of, linked with or occurring in the course of employment”. In effect, the health and safety requirements from the CLC perspective are designed to protect the health and safety of the individual through the proactive management of hazards. From the CARs perspective, SMS is intended to reduce the occurrence of aviation incidents and accidents through the proactive management of hazards.

The following example highlights the different objectives of each system. In scenario 1 the event would be reported under the OHS requirements of the CLC, in scenario 2 the event would be reported under the SMS requirements of the CARs. In both examples the contributing factor is the same: inappropriate equipment.

1. An employee is examining the trailing edge of an aircraft wing perched on a ladder that is not high enough or stable enough for the task. As a result, the worker falls off and breaks his/her leg.
2. An employee is examining the trailing edge of an aircraft wing perched on a ladder that is not high enough or stable enough for the task. As a result, the employee cannot see a hairline crack on the surface of the wing. In flight, the wing tip separates from the main part of the wing causing a catastrophic failure of the wing resulting in a loss of the aircraft and the souls on board.

If the health and safety reporting obligations in the Canada Labour Code requires information pertaining to the individual’s health and safety and SMS under the CARs requires information relating to the safety of flight, clearly there will be overlaps in information requirements.

What’s more, there will be occasions when information submitted to either program impacts the other. Consequently, it’s important to understand how the overlaps can be dealt with and what information must be supplied and shared between the two programs.

Reporting Requirements and Information Distribution in the CARS SMS Framework

Under the CARs, safety oversight is a fundamental tenet of an effective safety management system. This is achieved through two principal means: reactive and proactive activities. For the most part these are two distinct elements, the principal difference being the method of discovery. The reactive process responds to events that have already occurred, whilst the proactive method seeks to actively identify potential hazards through an analysis of the everyday activities of the company.

A principal method of conducting reactive safety oversight is through confidential voluntary reporting. To encourage this it is critical that the system offer some level of protection from punitive action by the employer. This can be achieved through the application of a non-punitive discipline policy and by maintaining the confidentiality of all reports submitted to the voluntary reporting program. In this respect, confidentiality is intended to mean that access to personal data and any related self disclosed information is limited and should be confined to those who “need to know”. “Need to know” access is limited to the person responsible for the safety management system report, the appropriate functional manager, and when there are health and safety related issues, the health and safety committee or representative. In addition, confidentiality does not mean that the information is completely de-identified. Some identifying information may be required if an investigation is necessary or if a specific corrective action is required.

It is important to note that the requirement to supply health and safety related information to the health and safety committee membership or representative is not new. In fact it has been incumbent upon organizations governed by the CLC, to supply this information for quite some time. In cases where employees might be anxious about the release of self-disclosed information, organizations should highlight that the Personal Information Protection and Electronic Documents Act ⁱ is applicable to all members of health and safety committees, as well as health and safety representatives. Consequently, the unauthorized release of any such information outside of the ”need to know” cadre is subject to punitive action.

For a safety management system to transition from being reactive to being proactive, it must actively seek out potential safety hazards and evaluate the associated risks. There are multiple mechanisms an organization can use to acquire this type of information. Potential sources of information to identify potential hazards include audits, safety assessments, behavioral observation, company experience reports, corporate hazard registers and work place opinions.

Once an organization has acquired this information it is incumbent upon them to document the findings, assess the risk to the operation as a result of the finding, (where appropriate) to act upon the finding and to monitoring the corrective action to ensure that the right contributing factors were identified.

Reporting Requirements and Information Distribution in the CLC Health and Safety Framework

The Canada Labour Code requirements for reporting and information distribution are more specific in that they require employees, as a function of their work, to report to their employer any health and safety hazards in the workplace, as well as any accidents or other occurrences that caused injury to themselves or others. In addition to this, employees are also to report to the employer any situation the employee believes to be a contravention of the CLC by the employer, another employee, or any other person. The employer must ensure that a process is in place to facilitate the reporting, recording and investigation of the hazards and accidents reported. The mandatory reporting obligations above are protected by a non-punitive discipline policy, which is outlined in Section 147 of the CLC.

Employers are required to investigate, record and report in the manner and to the authorities as prescribed, all health and safety related accidents, occupational diseases and other hazardous occurrences made known to them. In this regard, health and safety committees or representatives participate in all the inquiries, investigations, studies and inspections that pertain to the health and safety of the employees.

The CLC also provides an internal complaint resolution process, involving the employee that made the complaint and the employee’s supervisor. If the complaint is unresolved, it is referred to the health and safety committee or representative for investigation.

To assist in the completion of both activities, the health and safety committee or representative may request from the employer any information they consider necessary to identify existing or potential hazards in the work place. As well, the CLC allows for health and safety committees and representatives to have full access to all government and employer reports, studies and tests, or portions thereof, relating to the health and safety of employees.

Given the above, any health and safety related information collected under the CARS SMS is accessible to the health and safety committees and representatives.

Overlaps

For an organization to develop a safety culture that fosters error and hazard reporting as an integral function of one’s job there have to be specific provisions in place that will encourage trust and foster this practice. These include a non-punitive discipline program and a reporting program that provides for confidential reporting. The transition to a CARs SMS reporting environment, where individuals self report when they have made a mistake will be difficult if the very act of reporting opens one up to ridicule, administrative action or even worse the loss of one’s job. Any release, beyond those who need to know, or misuse of this information could result in a reduction in the number of reports received. Users of the system have to feel secure that the information they provide will be used to correct deficiencies and ultimately to further safety within the organization. To take this one step further, some employee groups have refused to allow their members to participate in company reporting programs without written guarantees that a non-punitive reporting program is in place. Of course there will be caveats to this policy, for example, when an individual willfully or deliberately pursues a course of action that violates internal company policy or regulatory requirements such as the CARs.

There will be situations where reports supplied to the CARS SMS reporting program also contain information that might relate to the health and safety of an individual or group. The issue of what can and cannot be accessed under the CLC is unambiguous: health and safety committees or representatives may request from an employer any information, including confidential information submitted to a confidential reporting program, which they consider necessary to identify existing or potential hazards in the work place and may participate in any health and safety investigation or study relating to an individual event, if the event or hazard jeopardized, or has the potential to jeopardize, the health and safety of an individual or individuals.

Given that the CLC is “Not withstanding any other Act of Parliament or any regulations thereunder, this Part applies to an in respect of employment” ⁱⁱ, CLC requirements supersede the Aeronautics Act and the Canadian Aviation Regulations. Any information contained in the company reporting program that relates to health and safety must therefore, upon request be supplied to the work place committee or the health and safety representative.

Contextual Relationship

Given the implications of this for the development of confidential and non-punitive reporting programs, it’s important to put this requirement into perspective and explain what this does and does not mean. First and foremost, the CLC and CARs requirements are not incompatible; they both have a common goal - safety. Improvements in health and safety in the workplace will undoubtedly improve the safety of flight. Indeed, increasing the individual’s ability to perform at an optimal level, in an environment that places priority on health and safety in the workplace, will without question reduce human errors and hazards.

In order to understand how the two systems can be compatible, whilst still maintaining their integrity, it is necessary to look at the confidentiality provisions of information provided under the CLC requirements and the restrictions on the information that must be released. When a health or safety committee or representative requests a report that details an event or hazard involving the health and safety of an employee, the employer is required to supply only the parts of the report that relate to the health and safety aspects detailed therein.

For example, a pilot submits a report to the organization’s voluntary and non-punitive reporting program. The report is assessed against the criteria established for acceptance in the organization’s non-punitive discipline program and accepted, thereby conferring a guarantee of confidentiality and immunity from punitive action upon the individual involved. The pilot’s report details an event where a pilot, upon take-off, had a tail strike and had to take immediate action. During the tail strike a flight attendant sitting in the back hurt his/her back from the impact. The pilot in command had to institute an emergency checklist, deal with air traffic control (ATC), trouble shoot the extent of the damage and then make a determination as to whether the aircraft could make it back to the airport safely.

In this case study, the information required under the CLC relates to the actual tail strike (when the injury occurred), the precursors to the tail strike i.e. contributing factors that put the individual at risk and the corrective action put in place to avoid a recurrence. Details about the pilot’s performance, communications with ATC, the use of the emergency checklist, if not directly related to the occupational health and safety event, do not have to be supplied.

It should also be mentioned that while a company may choose to involve the health and safety committee or representative in event investigations, this is not a required practice under the CLC. Unless an organization specifically invites the health and safety committee or representative to be part of a post-event investigation, they have no jurisdiction in this area. It should be noted however, that under the authority of the CLC, if a safety of flight incident has an impact on the health and safety of employees, the health and safety committee or representative has an obligation to investigate the incident. Where appropriate and depending on the size of the organization and the resources available, it might save time and money to combine the two investigations.

Another important fact to note is that once any information has been supplied to the health and safety committee or representative, the information should not be distributed beyond those who need to know. The employee involved in the event, as well as the health and safety committee or representative are to treat the information as confidential and should not distribute it beyond those who actually need the information to investigate or reach a decision regarding an appropriate corrective action. In this respect, confidentiality means the details of the report shall only be disclosed on a “need to know” basis as defined by the organization or existing regulatory requirements. Distribution might include individuals such as the functional manager or the safety officer if the incident involves more than one area. It is not intended to imply that the report should be de-identified. One of the basic principles under the CLC is to facilitate dispute resolution between the employer and the employee. Having a complete picture of an event is critical to this process, hence the requirement to have access to all documentation relating to an event.

Likewise, health and safety committees or representatives having access to company information that relates to potential workplace hazards, while mandatory under the CLC, is essential to understanding the whole picture relating to work place safety. This might include company safety assessments and safety audit reports that use trend related information derived from the company database to reach conclusions about workplace hazards. This is the type of information that needs to be shared as part of the information dissemination process under the CARs SMS requirements and used to proactively manage health and safety in the work place. The health and safety committee or representative must treat this information as confidential and limit distribution to appropriate personnel if the report contains personal information. Companies that have not addressed the issue of confidentiality in their health and safety committee terms of reference might want to revisit this issue, as there are individual privacy considerations involved in the release of personnel information ⁱ. In reality, much of the information contained in safety assessments and safety audit reports is macro data; de-identification therefore, is usually not required.

It should also be mentioned that access to data works both ways. Where the health and safety committee or representative can request information from the CARs safety management system database and other safety of flight related reports, health and safety reports that contain safety of flight information can also be requested. It is recommended that procedures be developed within, and between, the company safety management system and the health and safety committee or representative to facilitate this exchange of information.

Conclusion

This paper contends that whilst the SMS requirements under the CARs and the legislated health and safety obligations in the CLC have different objectives, they share a common purpose - improving safety. Moreover, the achievement of safety improvements is realized through very similar mechanisms: reporting programs, investigations, information dissemination and the proactive management of hazards. Indeed, it could be argued that these systems have more in common than not. In spite of the commonalities there are specific overlaps, which, if misunderstood, could potentially jeopardize the viability of the safety management system required under the Canadian Aviation Regulations and/or the health and safety committees and representatives mandated under the CLC. Consequently, it is important to remember that the data being accessed and utilized to improve health and safety in the work place and/or the safety of flight must be treated confidentially in accordance with applicable privacy laws.

Regulatory Comparison Table

i  The Personal Information Protection and Electronic Documents Act applies to information submitted to the Health and Safety Committee because the Committee is part of an organization. Every organization is supposed to have guidelines of how they collect, use, keep and provide access to this information. This could be captured in the terms of reference of the Committee. Complaints can be filed with the Privacy Commissioner and he can investigate. Charges under Summary Conviction and Indictment are also available.

ii  Canada Labour Code Part II, section 123.(1)