Situation
The Nova Scotia Department of Labour and Advanced Education has embarked on a review of the administrative penalty program which has been in place in the province since January 2010. The Department is seeking input from employers and has published a discussion document to facilitate this process.
Background
An administrative penalty is a monetary penalty that can be issued directly to an employer, manager or front line employee for a violation of an OHS law. It is separate from a fine as a result of a charge and conviction under the OHS Act. In order for an administrative penalty to be levied a compliance order from an OHS officer with the Department of Labour OHS Division must first be issued. All compliance orders have a chance to have an administrative penalty levied and this is determined by an administrator who reviews the order and determines if a penalty should be issued and to whom. Fines can range from $100-$2000 per offense which is determined by an apparently random process. Roughly 25% of all compliance orders result in an administrative penalty.
Assessment
To date, 95% of the 2635 penalties issued province wide over the past three years have gone to the employer, 2% to managers/supervisors and 3% to employees. The average fine amount was $665.00 Roughly $1.6 million has been issued in fines since the inception of the program. These funds are direct to general revenues of the Department of Labour. An appeals process is available and in 2011-12 there were 170 appeals filled.
There have been several concerns with this program such as the impression that the Department is moving to a disciplinary model from an educational model, that the funds collects are not reinvested directly in OHS prevent strategies and the relationship between the employers and the Department are negatively impacted.
Recommendation
The Department of Labour has provided some optional models for which they are seeking feedback. The three models proposed are: a progressive system where the Department provides education, then warnings then penalties; a predictive system where the Department establishes set penalty values to specific infractions; and a simplified system which focuses on the appeals process.
We recommend that all stakeholders review the discussion paper and the proposed model and formulate a response to ensure our voices are heard.
