Administration and Consultation
Administrative Framework - Overview:
WHMIS supplier labelling and MSDS requirements are set out under the Hazardous Products Act (HPA) and associated Controlled Products Regulations (CPR). The HPA is administered by the Product Safety Bureau of the Canadian Federal Government Department of Health; the latter commonly referred to as Health Canada. Although Health Canada remains ultimately responsible for the administration of the HPA and CPR, through formal agreements with each of the 13 federal, provincial and territorial agencies responsible for occupational safety and health (OSH), these agencies have agreed to conduct the inspection program for the WHMIS requirements of the HPA. Based on a "model" [WHMIS] OSH regulation, each of the 13 OSH agencies have established employer WHMIS requirements within their respective jurisdiction. The WHMIS trade secret mechanism is administered by the Hazardous Materials Information Review Commission.
Government of Canada Regulatory Policy:
This policy, updated as of November 1999, applies to federal regulatory authorities including Health Canada. The objective of this policy is "to ensure that use of the government's regulatory powers results in the greatest net benefit to Canadian society." The requirements of this policy stipulate, in part, the following:
"When regulating, regulatory authorities must ensure that
- They can demonstrate that a problem or risk exists, federal government intervention is justified and regulation is the best alternative.
- Canadians are consulted, and that they have an opportunity to participate in developing or modifying regulations and regulatory programs.
- The benefits outweigh the cost to Canadians, their governments and businesses. In particular, when managing risks on behalf of Canadians, regulatory authorities must ensure that the limited resources available to government are used where they do the most good.
- Adverse impacts on the capacity of the economy to generate wealth and employment are minimized and no unnecessary regulatory burden is imposed. In particular, regulatory authorities must ensure that information and administrative requirements are limited to what is absolutely necessary and that they impose the least possible cost ...."
The responsibility for the Government of Canada Regulatory Policy was transferred from the Treasury Board to the Privy Council Office (PCO). This and other related policies may be viewed on the PCO web site:www.pco-bcp.gc.ca/
Consultation - The WHMIS Consensus Process:
To respect the spirit and intent of the Government of Canada Regulatory Policy and maintain the consensus spirit in which WHMIS was developed, WHMIS continues to evolve using a consensus process. This process provides for input from organizations representative of suppliers; employers; organized labour; and the federal, provincial and territorial governments as reflected by the ongoing activities of these stakeholder groups at the WHMIS Current Issues Committee. Although the CIC has no formal powers, its role is to make recommendations to departments and agencies responsible for WHMIS legislation, particularly to the Minister of Health Canada who is ultimately responsible for the administration of the Hazardous Products Act.
The WHMIS Inspection Program:
WHMIS is administered through coordinated and interlocking federal, provincial and territorial legislation and regulations. The inspection program for the WHMIS supplier labelling and MSDS requirements of the HPA is conducted by the OSH agencies in conjunction with the WHMIS employer requirements established by these thirteen OSH agencies. Pursuant to subsection 21(1) of the HPA, the Minister of Health Canada designates individuals nominated by these OSH agencies as inspectors and analysts for the purposes of conducting the inspection program in support of the WHMIS requirements of the HPA.
The Government of Canada Regulatory Policy (see above) also has a bearing on the WHMIS compliance and enforcement program. In this regard, the Policy states:
"In particular, for technical regulations that affect trade, federal regulatory authorities must ... with regard to performance-oriented requirements
- ... give positive consideration to accepting as equivalent other forms of technical regulatory requirements, if satisfied that they adequately fulfil the objectives of the existing regulations ...
- [with respect to the World Trade Organization Agreement on Technical Barriers to Trade] ensure technical regulations treat products from one jurisdiction no less favourably than like products from another ...
with regard to enforcement
- treat regulatees and products from one jurisdiction no less favourably than those from other jurisdictions when assessing conformity to technical regulatory requirements, providing they are in comparable situations ...
with regard to complaint resolution
- have in place a process to review complaints concerning conformity assessment procedures and must take corrective action when justified...".
- The WHMIS Current Issues Committee (CIC): As required by Section 19 of the HPA, the Minister of Health Canada must consult with the WHMIS stakeholders prior to making any modifications to the federal WHMIS legislation and regulations. The WHMIS Current Issues Committee (CIC), enables Health Canada, in part, to meet the legislated requirement to consult with stakeholders on behalf of the Minister. The CIC operates on an ongoing basis and serves as the forum for the continued development and application of WHMIS. The CIC's terms of reference are as follows:
- The CIC serves as the forum for consultation on matters concerning the interpretation or modification of the Workplace Hazardous Materials Information System (WHMIS).
- The CIC has no formal powers; its role is to make recommendations to departments and agencies responsible for WHMIS legislation including recommendations for modifications to WHMIS or changes in its scope.
- Membership of the Committee will be limited to persons sponsored by one of the member groups, i.e., industry, labour and the WHMIS regulatory agencies and will consist of the Chairperson and representatives from:
- organized labour;
- provincial and territorial Occupational Safety and Health agencies;
- the Hazardous Materials Information Review Commission;
- Human Resources and Social Development Canada (Labour Program); and
- National WHMIS Office in Health Canada.
- Members are expected to consult with and represent their constituencies with the objective of developing a uniform position on each issue before the Committee. There must be at least one member or delegate from each caucus who is prepared to discuss or to speak on a scheduled agenda item.
- Members may delegate their membership status to one or more stakeholders to explain their caucus decision (or lack thereof) on a specific issue. (It is recognized that having more than one delegate speak to a decision will be an exception). If a person who has been delegated to speak to an issue cannot be present at a meeting that the issue is to be discussed, then a replacement delegate must be appointed by the caucus.
- For the purpose of providing critical information to the Committee on an issue, observer status at a meeting may be granted to representatives who have a special interest in a particular issue and who are sponsored by a member.
- The Committee will be chaired by the National WHMIS Office in Health Canada.
- The Committee will strive to function on a consensus basis. Consensus means unanimous concurrence among the industry, labour, federal and provincial caucuses.
- The Intergovernmental WHMIS Coordinating Committee (IWCC): The IWCC is the government caucus which participates on the multi-stakeholder WHMIS Current Issues Committee and its terms of reference are as follows:
- The IWCC serves as the forum for intergovernmental consultation with regard to:
- matters concerning the interpretation and modification of the WHMIS "Model" Occupational Safety and Health (OSH) Regulations, the Controlled Products Regulations and the WHMIS requirements of the Hazardous Products Act; (Note: Recommendations from IWCC to modify the Model OSH regulations will be sent to the OSH Committee of the Canadian Association of Administrators of Labour Legislation);
- reaching consensus decisions in order to develop unified government positions on issues to be discussed at the Current Issues Committee;
- enforcement issues (i.e., Enforcement Issues Subcommittee - see below); and
- other matters related to WHMIS.
- Membership of the IWCC will be limited to WHMIS governmental agencies and will consist of the Chairperson and representative(s) from each of the following:
Prince Edward Island
North West Territories (and Nunavut)
Human Resources and Skills Development Canada (Labour Program)
Hazardous Materials Information Review Commission
National WHMIS Office in Health Canada
- The Committee will be chaired by the National WHMIS Office in Health Canada. The chair will be passed to a representative from an OSH agency when OSH issues, including the WHMIS model OSH regulations, are discussed.
- The WHMIS Enforcement Issues Subcommittee (EIS): The EIS, which is also chaired by the National WHMIS Office in Health Canada, is a subcommittee of the IWCC whose terms of reference are as follows:
- The EIS serves as a forum for the discussion of practical problems related to the enforcement of WHMIS federal legislation, including issues related to occupational health and safety, in order to ensure that WHMIS is applied as uniformly as possible across the country.
- The Subcommittee is composed of a representative from each Occupational Health and Safety Agency from the provinces, the territories and the Labour Program at Human Resources and Skills Development as well as one representative from the National WHMIS Office in Health Canada.
(Note: The EIS is responsible for the management, planning and coordination of the compliance component of the national WHMIS program. Nationally coordinated governance is ensured through issue resolution amongst governments and timely communication to affected parties.
The EIS serves as the forum for intergovernmental consultation and nationally coordinated decision-making to achieve WHMIS objectives through compliance and enforcement initiatives. National coordination, facilitated by Health Canada, is used to ensure that the HPA/CPR will be applied in a manner that is fair, predictable and consistent. The Health Canada Web site serves as the conduit for information relating to the HPA/CPR and the site provides a portal to the employer WHMIS requirements established by each of the federal, provincial and territorial occupational health and safety regulatory authorities.
Specifically, and consistent with the National Compliance Policy for the Workplace Hazardous Materials Information System, through consultation using a consensus approach, the EIS serves as the forum for:
- developing and conducting national communication and information programs;
- developing systems to facilitate an evidence-based approach for prioritizing initiatives and allocating resources to the WHMIS compliance program; and
- establishing standard operating procedures and other measures to address practical problems related to the enforcement of supplier and employer WHMIS requirements to ensure that WHMIS is applied as consistently as possible throughout Canada.)