The Minister of Labour has approved “A Code of Practice to Address Workplace Harassment Under the Occupational Health and Safety Act.”
It’s the first time the code of practice provisions – found in Part III.1 of the Act – have been used in the 15 years since they were created.
So what is a code of practice?
It’s a document that sets out a specific way to comply with a law.
Because a code of practice sets out a way to comply with a regulation, it has legal power. An employer who meets the requirements of the code of practice – in full – is meeting the law.
But it is only one way to comply with the law. An employer doesn’t need to follow the code of practice. An employer may follow its own practice to meet the law.
Unlike a regulation, a code of practice is approved (and may be withdrawn) by the Minister or Deputy Minister. It’s not approved by the Cabinet, like a regulation.
For an employer, the advantage of following a code of practice is providing tangible proof of due diligence.
Remember, though it’s often said due diligence is a prevention program, it is not. Due diligence is a legal defense.
and regulations are strict liability laws. To find someone has committed an offense under a strict liability law, a court doesn’t need to find the person was willful or negligent, as is the case at a criminal trial. For a strict liability offense, the court only has to find the law has been broken without reasonable defense.
The most common reasonable defence is due diligence – that is, despite breaking the law, the employer was duly diligent in efforts to comply with the law.
And this is where codes of practice fit in.
Following an official, government-approved code of practice categorically demonstrates due diligence. If there is an incident and the MOL’s investigation determines the employer had followed the code of practice, the Ministry will not bring charges. Following a code of practice protects an employer against a court finding of offence.
There are some concerns about codes of practice because it sets out a specific, alternate way to be compliant. A code of practice might not be appropriate to the circumstances of every workplace, even though complying with the code of practice is deemed to be legal compliance in every workplace.