s-2.1, r. 35 - Regulation respecting the implementation of the Agreement regarding programs financed by the Department of Human Resources and Skills Development

Updated to 1 September 2012

This document has official status.

chapter S-2.1, r. 35

Regulation respecting the implementation of the Agreement regarding programs financed by the Department of Human Resources and Skills Development

Act respecting occupational health and safety

(chapter S-2.1, ss. 170 and 223, 1st par., subpar. 39).

1. The Act respecting industrial accidents and occupational diseases (chapter A-3.001) applies to persons participating in the programs financed by the Department of Human Resources and Skills Development to the extent and on the conditions provided for in the agreement entered into by the Minister of Human Resources and Skills Development and the Commission de la santé et de la sécurité du travail, appearing in the Schedule.

O.C. 396-2011, s. 1.

2. This Regulation replaces the Regulation respecting the implementation of the Agreement regarding the programs of the Canada Employment and Immigration Commission (O.C. 294-97, 97-03-05).

O.C. 396-2011, s. 2.

3. (Omitted).

O.C. 396-2011, s. 3.

SCHEDULE

AGREEMENT CONCERNING WORK PERFORMED BY THE PARTICIPANTS AND MEMBERS OF THE ADMINISTRATIVE PERSONNEL IN PROGRAMS FINANCED BY THE DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA (SERVICE CANADA)

BETWEEN

THE DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA (SERVICE CANADA)

AND

THE COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL

UNDER SECTION 16 OF THE ACT RESPECTING INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES

December 2010

WHEREAS the Department of Human Resources and Skills Development is established under section 3(1) of the Department of Human Resources and Skills Development Act (S.C. 2005, c. 34);

WHEREAS the Minister holding office has the management and direction of the Department;

WHEREAS under section 10 of the said Act, for the purpose of facilitating the formulation, coordination and implementation of any program or policy relating to the powers, duties and functions conferred by the Act, the Minister may enter into agreements with a province or a provincial public body, financial institutions and other persons or bodies that the Minister considers appropriate;

WHEREAS questions relating to the employment and management of the participants and members of the administrative personnel in programs financed by the Department of Human Resources and Skills Development are managed by the Service Canada division of the Department of Human Resources and Skills Development, hereinafter referred to as HRSDC (SC);

WHEREAS the Commission de la santé et de la sécurité du travail, hereinafter referred to as the Commission, is, under section 138 of the Act respecting occupational health and safety (chapter S-2.1), a legal person within the meaning of the Civil Code of Québec and has the general powers of such a legal person and the special powers conferred on it by that Act;

WHEREAS the Commission may, under section 170 of that Act, make agreements with a Government department or agency, another government or a department or agency of such a government for the application of the Acts and regulations administered by it, according to law;

WHEREAS HRSDC (SC) has requested that the Act respecting industrial accidents and occupational diseases (chapter A-3.001) apply to the participants and members of the administrative personnel and it intends to assume, for administrative purposes only, the obligations prescribed for employers as regards the statement of the contributions paid by HRSDC (SC) for the participants and members of the administrative personnel, the payment of the assessments due to the Commission and the imputation of the cost of benefits payable by reason of an employment injury;

WHEREAS, under section 16 of that Act, a person doing work under a project of any government, whether or not the person is a worker, may be considered to be a worker employed by that government, by an agency or by a legal person, on the conditions and to the extent provided by an agreement between the Commission and the government, agency or legal person concerned;

WHEREAS section 16 provides that the second paragraph of section 170 of the Act respecting occupational health and safety (chapter S-2.1) applies to such an agreement, meaning that the Commission must make a regulation to make effective an agreement extending benefits arising out of Acts or regulations administered by it;

THEREFORE, THE PARTIES HEREBY AGREE TO THE FOLLOWING:

CHAPTER 1

ENABLING PROVISIONS

Enabling provisions

1.1 This Agreement is entered into under section 16 of the Act respecting industrial accidents and occupational diseases, section 10 of the Department of Human Resources and Skills Development Act (S.C. 2005, c. 34) and section 170 of the Act respecting occupational health and safety (chapter S-2.1).

CHAPTER 2

PURPOSES

Purposes

2.1 The purposes of this Agreement are to provide, on the conditions and to the extent of the Agreement, for the application of the Act respecting industrial accidents and occupational diseases to the participants and members of the administrative personnel in the programs financed by the Department of Human Resources and Skills Development, and to determine the respective obligations of the parties to this Agreement.

Other purpose

This Agreement also provides for the non-application of the provisions concerning the re-assignment or protective reassignment of a pregnant or breast-feeding worker in the Act respecting occupational health and safety.

CHAPTER 3

DEFINITIONS

“Commission”

(a) Commission means the Commission de la santé et de la sécurité du travail established under section 137 of the Act respecting occupational health and safety (chapter S-2.1);

“contribution”

(b) contribution means the contribution paid for a participant or a member of the administrative personnel in the form of, as the case may be,

i. any amount paid by HRSDC (SC) as wages or an allowance;

ii. any unemployment insurance benefits paid for a participant, to which may be added any amount paid as an allowance, where applicable.

This definition excludes additional allowances paid for day-care expenses, transportation costs or any other amount that may not be considered as employment income.

“employment injury”

(c) employment injury means an injury or a disease arising out of or in the course of an industrial accident, or an occupational disease, including a recurrence, relapse or aggravation;

“Act”

(d) Act means the Act respecting industrial accidents and occupational diseases (chapter A-3.001);

“participant”

(e) participant means any person registered in a program listed in Schedule I;

“member of the administrative personnel”

(f) member of the administrative personnel means any person registered, in particular, in a program listed in Schedule I;

“promoter”

(g) promoter means a municipal administration, a Native band council, a health institution, a public educational institution, a business or any other organization that has entered into an agreement with HRSDC (SC) for the purpose of implementing and carrying out a program administered by HRSDC (SC) and covered by this Agreement.

“HRSDC (SC)”

(h) HRSDC (SC) means the Service Canada division of the Department of Human Resources and Skills Development, or any other organization that replaces it pursuant to an Act of Parliament;

CHAPTER 4

OBLIGATIONS OF HRSDC (SC)

Employer

4.1 HRSDC (SC) is deemed to be the employer of any participant or any member of the administrative personnel covered by this Agreement, for the sole and exclusive purposes of the statement of the contributions paid by it for the participants or members of the administrative personnel who are registered in the programs subject to this Agreement, the payment of the assessment calculated by the Commission and the imputation of the cost of the benefits paid by the Commission by reason of an employment injury.

Exclusions

It is understood that the participants and members of the administrative personnel covered by this Agreement are neither employees, officers or servants of Her Majesty in right of Canada or of HRSDC (SC) for the purposes of any Act and, in particular, the Crown Liability and Proceedings Act (R.S.C., 1985, c. C-50), nor employees of the State for the purposes of the Government Employees Compensation Act (R.S.C., 1985, c. G-5).

Transportation costs

4.2 HRSDC (SC) assumes the transportation costs referred to in section 190 of the Act where those costs are impossible to recover from the promoter.

Promoter’s obligations

4.3 HRSDC (SC) must inform promoters that they are bound by all the other employers’ obligations provided for in the Act, except for the obligations set out in section 32 pertaining to the dismissal, suspension or transfer of a worker, the practice of discrimination or the taking of reprisals against the worker, sections 179 and 180 concerning temporary assignment and Chapter VII respecting the right to return to work, which do not apply to them.

Other exception

Likewise, Subdivision 4 of Division I of Chapter III of the Act respecting occupational health and safety does not apply to promoters.

Confirmation of participation

4.4 If the Commission so requests, HRSDC (SC) must confirm the name of a participant, member of the administrative personnel or promoter subject to this Agreement.

Payment of assessments

4.5 HRSDC (SC) must pay the assessment calculated by the Commission on the basis of the general rate of the unit corresponding to the economic activities in the “Programme d’aide à la création d’emploi” unit or, should amendments be made after this Agreement is signed, in a unit corresponding to those activities.

Fixed administrative costs

The foregoing also applies to the fixed administrative costs associated with the opening of each financial record.

Periodic payments

For the purposes of this Agreement, HRSDC (SC) is required to make periodic payments in accordance with section 315.1 of the Act.

HRSDC (SC) will make monthly payments for all the programs, except the Aboriginal programs for which the contributions will be added to the payments calculated quarterly.

Minimum

4.6 For assessment purposes, HRSDC (SC) is deemed to pay wages that correspond to the contributions paid by it for the participants or members of the administrative personnel who are registered in a program subject to this Agreement.

Contributions paid

4.7 HRSDC (SC) must send to the Commission, not later than 30 June each year, the final amount of the contributions paid for the participants or members of the administrative personnel registered in a program during the period between 1 April of the preceding year and 31 March of the current year and must pay, where applicable and taking periodic payments into account, any balance on the assessment calculated by the Commission.

Overpayment

The Commission will apply any assessment amount overpaid by HRSDC (SC) to the assessment due for a subsequent year.

Description of programs

4.8 HRSDC (SC) must forward to the Commission, on the coming into force of this Agreement, a description of every program listed in Schedule I.

New program or amendment

Every new program and every subsequent amendment to a program listed in Schedule I must be forwarded so that it may be evaluated and a decision may be made whether to include or to retain it under this Agreement.

CHAPTER 5

OBLIGATIONS OF THE COMMISSION

Worker status

5.1 The Commission considers a participant or member of the administrative personnel who is registered in any of the programs subject to this Agreement to be a worker within the meaning of the Act.

Indemnity

5.2 A participant or a member of the administrative personnel who suffers an employment injury is entitled to an income replacement indemnity from the first day following the beginning of the participant’s or member’s inability to carry on the remunerated employment held at the time the employment injury appears.

If the participant or member of the administrative personnel has no remunerated employment at the time the employment injury appears, the participant or member is entitled, from the first day following the beginning of the inability, to the income replacement indemnity if the participant or member becomes unable, by reason of that injury, to carry on the participant’s or member’s usual employment or, if the participant or member does not carry on such employment usually, the employment that could have been the participant’s or member’s usual employment, considering the participant’s or member’s training, work experience and physical and intellectual capacity before the injury appeared.

Payment

5.3 Despite section 60 of the Act, the Commission pays to the participant or to the member of the administrative personnel the income replacement indemnity to which the participant or member is entitled.

Calculation of the indemnity

5.4 For the purpose of calculating the income replacement indemnity, the gross annual employment income of the participant or member of the administrative personnel is the amount of the contribution paid by HRSDC (SC).

Recurrence, relapse or aggravation

In the event of a recurrence, relapse or aggravation, where the participant or member of the administrative personnel has a remunerated employment, the gross annual income is, for the purpose of calculating the income replacement indemnity, established in accordance with section 70 of the Act. However, if the participant or member is unemployed at the time of the recurrence, relapse or aggravation, the gross annual employment income is that which the participant or member derived from the employment because of or in the course of which the participant or member suffered the employment injury; that gross income is revalorized on 1 January of each year from the date on which the participant or member ceased to hold the employment.

Exception

However, entitlement to an income replacement indemnity and the calculation thereof for a participant or a member of the administrative personnel who is considered to be a worker under this Agreement and who is a full-time student are determined according to sections 79 and 80 of the Act.

Financial records

5.5 The Commission must open a financial record in respect of each program and charge the fixed administrative costs to HRSDC (SC).

Penalties

5.6 The Commission will not impose any penalty on HRSDC (SC) for a delay in filing the statement of the final amount of the contributions paid for the participants or members of the administrative personnel.

CHAPTER 6

MISCELLANEOUS

Monitoring of progress of the agreement

6.1 Within 15 days following the coming into force of this Agreement, both HRSDC (SC) and the Commission will designate a person who will be responsible for monitoring the progress of this Agreement.

Addresses for notices

6.2 Every notice provided for in this Agreement must be sent to the following addresses:

(a) Executive Director, Labour Market and

Social Development Programs

Service Canada

200, boulevard René-Lévesque Ouest

Complexe Guy-Favreau

2e étage, tour Ouest

Montréal (Québec) H2Z 1X4

(b) Le Secrétaire de la Commission

Commission de la santé et de la sécurité du travail

1199, rue De Bleury, 14e étage

Montréal (Québec) H3C 4E1

CHAPTER 7

TAKING OF EFFECT, TERM AND AMENDMENT

Taking of effect

7.1 This Agreement takes effect on the date of coming into force of the regulation made for that purpose by the Commission under section 170 of the Act respecting occupational health and safety.

Term

7.2 The Agreement remains in effect until 31 March 2012.

Tacit renewal

7.3 It will subsequently be renewed tacitly for successive 12-month periods, unless one of the parties sends to the other party, by registered or certified mail, at least 90 days before the term expires, a notice in writing to the effect that it intends to terminate the Agreement or make amendments thereto.

Amendments

7.4 In the latter case, the notice must contain the amendments that the party wishes to make.

Renewal

7.5 The sending of the notice provided for in section 7.4 does not preclude the tacit renewal of this Agreement for a period of one (1) year. If the parties do not agree on the amendments to be made to the Agreement, the Agreement will be terminated, without further notice, at the expiry of that period.

CHAPTER 8

CANCELLATION OF THE AGREEMENT

Non-compliance

8.1 If HRSDC (SC) fails to comply with any of its obligations, the Commission may send a notice in writing to request that HRSDC (SC) remedy that failure within a period fixed by the Commission. If the failure is not remedied within the period fixed, the Commission may cancel this Agreement unilaterally by giving notice in writing.

Date

8.2 The Agreement is then cancelled on the date on which the notice of cancellation provided for in section 8.1 is sent.

Financial adjustments

8.3 In the event of a cancellation, the Commission will make financial adjustments on the basis of the amounts payable under this Agreement.

Sum due

8.4 Any sum due after such financial adjustments have been made is payable on the due date appearing on the notice of assessment.

Mutual agreement

8.5 The parties may, by mutual agreement, cancel this Agreement at any time.

Damages

8.6 In the event of cancellation, neither party is required to pay damages, interest or any other form of indemnity or charges to the other party.

CHAPTER 9

TRANSITIONAL PROVISION

Despite section 4.5 above, HRSDC (SC) is not required to make periodic payments for the period from 1 January to 31 March 2011.

IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED

At ___________________, on the __________ At ___________________, on the__________

( ) day of _____________________ 2010. ( ) day of _____________________ 2010.

DENIS BOULIANNE, LUC MEUNIER,

Executive Head Service Chair of the board of

Management directors and Chief

Department of Human Executive Officer,

Resources and Skills Commission de la santé

Development Canada et de la sécurité du travail

(Service Canada)

O.C. 396-2011, Sch.

SCHEDULE I

LIST OF PROGRAMS SUBJECT TO THE AGREEMENT

Youth Employment Strategy:

(a) “Canada Summer Jobs”:

participants from not-for-profit organizations only;

(b) “Skills Link”:

administrative personnel and participants

except participants for work experience in the following 2 components:

— Employability Skills through Work Experience;

— Work Experience;

(c) “Career Focus”:

administrative personnel only;

Aboriginal strategy:

(a) “Assembly of First Nations of Québec and Labrador”:

— administrative personnel and participants in the following 2 components:

— On-the-job skills development;

— Improving employability in the workplace;

(b) “Algonquin Nation Human Resources and Sustainable Development Secretariat”:

— Vocational integration - participants only;

— Job creation - administrative personnel and participants.

O.C. 396-2011, Sch. 1.

REFERENCES

O.C. 396-2011, 2011 G.O. 2, 944