Subsection 37(2), on the other hand, deals with the conduct of contractors and states that the above provisions of subsection 37(1) apply unless the parties agree in writing on the agreements between them with respect to the contractor`s compliance with the OHS Act. In practice, this Agreement is referred to as Agreement 37.2. The purpose of Agreement 37.2 is as follows: Various other matters may be included in the Agreement, and it may continue to be used as a framework agreement obliging the Contractor: Failure to enter into a contract with an agent in accordance with Article 37(2) of OHASA may result in potential liability. Ensuring that a clear and unambiguous agreement is reached in this regard provides a higher level of security and a means by which the parties can manage their relationship throughout the duration of the construction project. In the construction sector, there is a practice in which an agreement within the meaning of Article 37(2) of OHASA is concluded between the so-called `employer` and a `contractor` (who would also be an `employer` within the meaning of OHASA) when the contractor`s employees work in a workplace. With such an agreement, the Contractor, as the “agent” of the Employer, agrees that he is responsible for the duties and obligations within the meaning of OHASA and the binding regulations related thereto, to the extent that these duties and obligations relate to the work to be performed in the workplace. The Employer may therefore avoid any liability provided that it has agreed in writing agreements and procedures with the Contractor to ensure the Contractor`s compliance with the provisions of OHASA. everything necessary to ensure the health and safety of on-site personnel. All of this can be considered “reasonable steps” by the employer to avoid criminal liability. The regulations define a customer as any person for whom construction work is carried out.
For a client who is not in the construction industry or who does not have the expertise and experience required for a construction project, meeting these obligations may be unachievable. Moreover, it is apparent from the wording of the legislation that those obligations cannot be `delegated` to a `main contractor` or to a designated `contractor`. Sub-regulations 5 (6) and (7) of the Regulations provide for the written designation of a competent person acting as an agent on behalf of the Client. However, clients would be advised to check whether a written appointment and the terms of an underlying mandate contract are sufficient to protect against possible liability that may arise from a criminal offence within the meaning of OHASA. In general, an employer may avoid liability if it can prove that the employee acted without permission and outside the jurisdiction and that the employer took all reasonable steps to prevent the conduct in question. In accordance with Article 37(2) of OHASA, this Article also applies to a “Client” of an employer or user (“Agent” is defined as “Agent” in Article 1 of OHASA). However, Article 37(2) of OHASA provides that an employer may evade liability for the conduct of an agent by concluding a written agreement on the arrangements and procedures for compliance with the provisions of ohasa. An agreement with the Agent should cover, among other things, the following: Given the potential liability that can be attributed to the Client with respect to the conduct of its Agent, it would be desirable for a similar agreement to be concluded to govern the relationship between the Client and the Agent. In cases where the client may not have the expertise and experience required for a construction project, such an agreement would be essential to protect the client`s interests […].