Excerpt from the Official Report of
DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)


November 4, 2015

Bill 35 — Workers Compensation Amendment Act

S. Simpson: I’m pleased to be able to get committee stage underway for the Workers Compensation Amendment Act (No. 2), 2015.

This legislation is a response, as we all know, to the two tragic incidents at Babine and Lakeland mills, where four gentlemen lost their lives and about 40 others, a little over 40 others, were seriously injured, many of them facing traumatic circumstances that will be with them for their whole lives.

This bill looks to deal primarily with issues that relate to recommendations from the coroner’s inquest about the roles, responsibilities, participation of joint occupational health and safety committees, their functioning, how they should function and the roles and authority they have to do what they do.

However, at the beginning of the bill, there are a couple of sections that deal with other matters that I think are more than housekeeping. We’ll work our way through those and then get to the discussion of the more substantive pieces of the bill a little later on this afternoon.

Section 1 of the bill says:

“The Board must, on or before April 30 in each year, make to the minister a report of its transactions during the last preceding calendar year, and the report must contain the particulars the minister specifies. (2) The minister must promptly, with respect to the report referred to in subsection (1), (a) lay the report before the Legislative Assembly, if the…Assembly is in session, or (b) file the report with the Clerk…if the Legislative Assembly is not in session.”

Could the minister tell us what the intent for this change was and why she felt it was necessary to make the change?

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S. Simpson: The section says that it will administer “a report of its transactions during the last preceding calendar year, and the report must contain the particulars the minister specifies.” Could she clarify what that means and how that will be a different circumstance from what occurs today?

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S. Simpson: So, then, is it the expectation…? As it says that “the report must contain the particulars the minister specifies,” maybe the minister could be clear about: is there a list of specifics that the minister provides to the agency saying, “I expect your annual report to include A through X” or whatever, and what is that?

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S. Simpson: I think this, actually, will probably pertain more to section 2, which we’ll get to in a minute. There is a sense here that the specifics, particularly in the service plan but also in the annual report….

Is the minister increasing her role with WorkSafe B.C.? It’s an agency that is probably in many ways one of the more independent agencies in government, obviously with a whole array of responsibilities and an array of authority that most other agencies of government don’t have. Is this the beginning of a move for the minister to increase her accountability for the agency by taking a more direct approach, a more hands-on approach, than maybe has been the past practice for a minister?

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S. Simpson: Just so I understand the process. This is stepping back one question, again, to the thing about particulars that the minister specifies in the report.

I’m trying to understand how the process of the preparation of the annual report works. Is it a process where WorkSafe prepares a draft of the annual report, provides it to the ministry and through there to the minister, whatever? The minister gets to not write the report but to make sure that the areas — the content — reflects what she wants in terms of areas of content. If there are holes in that, she sends it back and says: “You should be discussing this issue” or “I’m concerned that this issue is not dealt with in your report, and take another look at it.”

When it says that the report must contain the particulars the minister specifies, and the minister says, “I don’t have a list that I give to WorkSafe before they start,” then does she review a draft and satisfy herself that all of the areas that she believes need to be covered are addressed and, if not, sends the draft back saying there are holes and you should address them?

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S. Simpson: It says in subsection (2): “The minister must promptly, with respect to the report referred to in subsection (1), (a) lay the report before the Legislative Assembly, if the Legislative Assembly is in session, or (b) file the report with the Clerk of the Legislative Assembly, if the Legislative Assembly is not in session.”

So if we’re not sitting at the time that the report arrives — and being as it’s end of April, I expect in most instances we probably will be, but if we’re not — is the result of filing the report with the Clerk that the report is released publicly? Or does the report sit until it finally hits the table of the Legislature?
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S. Simpson: With that, we know that at the point the minister tables it in the Legislature, it is a public document that day, once the minister chooses to table it. What I think I hear the minister saying is that should we not be sitting — should it be filed with the Clerk — then that does not make it a public document. It then allows WorkSafe to release it if they choose to, up until the time that the House would sit again, and it would be put before the House. Is that accurate?

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S. Simpson: Section 2 deals with similar questions but relates to the service plan rather than the annual report. Maybe I’ll just go back, and I’ll ask that question and confirm with the minister that the thinking is the same as relates to the service plans.

Should there be some reason, not expected, that we are not sitting and the service plan is provided to the minister and the minister files the service plan with the Clerk, would it then be her expectation that at the point that she informed WorkSafe that the Clerk was in possession of it, WorkSafe would release the service plan? Or are service plans dealt with in a different fashion than annual reports?

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S. Simpson: We know that in most of the areas related to service plans, the ministry deals with the production of service plans and the preparation and the thinking and all of that on behalf of the minister.

Service plans for WorkSafe are a slightly different item. Is there a role for the ministry itself in the development of WorkSafe service plans? Does the ministry play a role? Do they consult around the specifics of a service plan with WorkSafe prior to the finalization of the plan?

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S. Simpson: So in that development of the service plans, it’s independent. WorkSafe functions independently around that.

I’m interested, around that, in whether it’s decisions of WorkSafe or where the decisions come. I’ll take one example. We know, for example, in the 2011-2013 and the 2012-2014 service plans, the notion of wood dust doesn’t get mentioned. Then, of course, in the 2013-2015 plan, it does, and it becomes a topic.

With incidents like we know, like the tragic situations that we saw — decisions around that…. Is that the kind of place where the ministry has a conversation with WorkSafe about the expectation — maybe it’s the minister’s expectations — that WorkSafe will, in fact, address those specific questions — not tell them how to address them, not prescribe how they should be addressed but say, “I have expectations, the ministry has expectations, that those questions will be addressed in the service plan”? Does that kind of conversation go on?

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S. Simpson: Just around this, it is no surprise that wood dust is incorporated in the service plans. A question I have that relates to the service plans…. We’ll move on after this. But it is a curiosity for me and an important…. Particularly as we look to some of the future sections here — sections that, as with much legislation, require a regulatory regime to operationalize them…. We know that WorkSafe — not quite as engaged when they do policy but pretty engaged when they do regulation.

I’m sure the minister understands how the process is evolved by WorkSafe, but can the minister tell me: in the development of the service plans, is there a level of engagement, maybe like the engagement around regulation?

Is there a level of engagement with legitimate stakeholders, the public, whoever, in the development of those plans so that they’re taking that in? They get, obviously, whatever advice they get from the minister and the ministry through the ongoing discussions over the period of a year and, certainly, the minister’s comments when she’s speaking about issues that relate to WorkSafe. I’m sure they pay close attention to that. Do they engage the public or the stakeholders in the development of the service plan?

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S. Simpson: The board, obviously, is a critical body here. But as the minister will know, when I think about the composition of the board, I think there’s one member of the board who could openly be called the workers’ representative on the board — one member who certainly fits that profile — whereas, I think, if you looked at the backgrounds and the professional roles of many of the members of the board, including the new chair of the board, they could be put in the category of the employers’ side.

The voices are all there. The challenge, of course, is the level of balance on that board is not what it might have been in previous incarnations, when the structure of the board was different. We could debate whether this structure is better or worse than the last structure, when it was by law, by the act, a more balanced board. Whether that worked better or not is a point of debate that we could have, but it would be hard to say that there’s much balance on the board in terms of those two key views — the employers’ view and the workers’ view.

You hope that everybody comes to the board not wearing those hats and that they’re all there to look to advance the interests of worker safety and the governance of this entity as the tool to do that. But I think the reality is that it’s also hard for people to take their hats off, wherever they are, entirely when they look at the perspective, they look at what they know and they look at where they come from on this.

I do worry a little bit about that balance, particularly if there’s not a little more engagement around that. We’ll come to this discussion about how that happens, I think, on other sections of the report as we move forward.

At this point, I think I’m happy to leave section 2 alone.

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S. Simpson: Section 3 deals with matters related to the superannuation fund. I’m really just kind of curious as to what it does. I don’t entirely understand what this section actually accomplishes and what it’s aimed at dealing with.

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S. Simpson: I know a little bit about that. Back in a previous life, I sat on what was then the advisory board of the municipal superannuation, so I had a pretty good idea, kind of, of how investments worked and how things were administered. And it is a pretty good job. People do a pretty good job there around that.

So does this mean, then, that the workers compensation will be dealt with in a similar way to the municipal fund or the provincial fund or police and fire that all have their own authorities and set their own advisers to the board?

Does that happen? How does that change from what goes on now? I’m still trying to understand. I certainly don’t have a problem with the idea that it goes there, but I’m trying to figure out: what does this mean in a more material way as to what happens differently with the administration of WorkSafe investments in the fund?

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S. Simpson: With section 4, we now move to what I would say are the more substantive pieces of Bill 35. For the next four or five sections, they deal with really, I think, what is the body of this work. What section 4 does is amend section 130 around the duties and functions of the joint committee, and this really starts to lay out what we see here.

This relates to, as the minister has said in second reading…. The motivation for Bill 35 was the half a dozen or so specific recommendations to her ministry and to her, as they related to the coroner’s inquest.

This particular recommendation says to “amend section 130 of the Workers Compensation Act to ensure that the joint occupational health and safety committee reviews any changes to equipment, machinery or process to assess impacts on workers’ health and safety.”

The coroner’s comment to that was: “The inquest heard that regular evaluation of process hazards is important to ensure that potential risks to workers are identified, particularly when process or equipment is changed.”

Maybe the minister could then tell us how she sees this working and what she is hopeful the result of this particular aspect will be.

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S. Simpson: I think that the minister is correct that these next few sections are going to be our conversation for the next period of time.

We agree on a number of things. I think that we do, as the minister points out, have some areas where we don’t entirely agree that the legislation, regardless of intent, takes us quite where we need to be. But we’ll get a chance to talk about that in the coming couple of hours.

With this section…. I’m curious. Can the minister tell us…? It says in the act that the “committee has the following duties and functions in relation to its workplace.” It lists an array of different functions and duties, all of which are quite important, including one here that’s quite specific. What it does is it removes a reference to the workplace or the work and, in its place, essentially puts in: “…including significant proposed changes to equipment and machinery.”

What is the expectation of the minister as to how the committee deals with that? Is there an expectation about what kind of information the company will be obliged to provide to the committee about the equipment, about any challenges with the equipment? Things aren’t perfect, and some of this equipment may have results that are less than favourable and will need to particularly be watched and precautions put in place.

What does this oblige the company to do, in terms of providing information to the committee about new equipment, other than giving them a list that says: “We bought three new machines, and here’s what they are”? But saying: “Here’s what these machines do, and here may be the positives, or negatives, of what these machines do?”

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S. Simpson: With that, could the minister explain a little bit…? I accept that it’s not prescriptive here as to what the expectation is. I wouldn’t necessarily expect it to be prescriptive in legislation as to what the expectation is around the kinds of information that will be provided to the committee to allow the committee to both understand the equipment and to be able to move forward. Maybe the minister could tell us a little bit about how that works and how that process works at WorkSafe.

I’m going to follow with a question about…. Can the minister give me the distinction between policy and regulation? They do differ. That’ll be the next question, so I’ll leave it at that.

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S. Simpson: I think the distinction, the difference, obviously is an important one. My inclination, certainly for much of the work that I believe Bill 35 looks to target…. It is more an issue of regulation than it is policy to implement that. I look forward to talking about that a little further.

Going back to section 130, which is what this amendment in section 4 deals with, there’s a long list of ten or so areas of specific responsibility that a committee has around its duties and functions. Were there any other areas here? They’re pretty extensive, in many ways.

They identify situations that may be unhealthy or unsafe for workers. Advise on effective systems. Expeditiously deal with complaints related to health and safety of workers. Consult with workers and the employer on issues related to health and safety or occupational environment.

Make recommendations to the employer and the workers for the improvement of health and safety and the occupational environment.

Make recommendations, again, around health and safety in compliance with this part and the regulations and monitor their effectiveness. Advise the employer on programs and policies required under the regulations for the workplace and monitor their effectiveness. Advise the employer on proposed changes to the workplace, etc., that may affect health and safety. Ensure accident investigations and regular inspections are carried out. Participate in inspections, investigations. Carry out other duties and functions prescribed by regulation. A pretty effective list of duties.

We know that one of the critiques we heard in the inquest was around the function, or dysfunction, of the health and safety committee. I attended the Lakeland inquest. Certainly, that was what I heard. That was a committee that, to the extent that it functioned, didn’t seem to deal with a whole lot of these matters. I respect the fact that the legislation is intended to help to correct some of that.

Could the minister tell us, though…. What assessments have been done, if any, about the practicality of this list of functions in section 130 and how well they work or what the shortcomings are — whether committees are actually able to accomplish this and whether they’re actually getting this long list, a pretty important list, of things done? What assessments have been done by WorkSafe, who would, obviously, be the agency that would probably do that assessment?

Had they looked at that, maybe post being in Lakeland, which motivated this? Maybe Mr. Macatee looked at it. I’m not sure. What has been learned by that that led to being satisfied with the one change in relation to this?

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S. Simpson: Just following up on that, I thank the minister for the answer, and I’m glad that WorkSafe is moving forward on that recommendation. Just a question in relation to that and the connection.

That process they’re going through in the development of the tool — I’m assuming that they’re going through some form of consultation with existing committee members or health and safety representatives for organized labour and, hopefully, for employers’ groups that deal with these matters, to try to determine how you measure, how that tool will reasonably be able to measure.

We know these committees are going to be very different things in different workplaces, and we’ll talk about that a little bit. I have a couple of questions in relation to that. But for this, it’s specifically: is WorkSafe, in undertaking the work on the audit tool, engaging with the appropriate stakeholders on both the employer and the worker side?

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S. Simpson: In relation to that…. I’m going to pursue this a little bit because I think, certainly, the roles and responsibilities of the committee are pretty fundamental. While there are specifics in some future sections that we’ll want to talk about, this is pretty important.

The question I want to put to the minister now is…. It is a concern that I have. When I look at larger industrial sites that are unionized sites where you have a union — in the case of the mills, it was the Steelworkers — you do have some infrastructure there. You have staff representatives for the union, who have expertise. You have health and safety specialists. You have a steward system in the workplace that allows, certainly, some significant support for health and safety committee members in their work and their efforts. They have significant support.

But as the minister knows, as we all know, certainly in the private sector in particular, the vast majority of worksites are not union worksites. The vast majority of sites are non-union worksites, and the workers don’t necessarily have that infrastructure that comes with having a trade union be supportive of your work and a place to make the phone call about: “Am I doing this right or wrong?”

Could the minister talk a little bit about how she sees this work going on in the non-union sites — maybe in companies with 40 or 50 employees, not hundreds of employees — to make sure these committees are effective or to be as effective as possible in those sites where the workers don’t have that support behind them that a union can offer?

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S. Simpson: I have no question or doubt about the minister’s desire and intent to have these committees work effectively and that that’s what she aspires to do with the legislation.

In theory, I would agree with the minister that it shouldn’t make any difference whether it’s a unionized workplace or a non-union workplace. In terms of worker safety, they should be treated the same, and the standards should be the same for both.

But what we know is in practice…. This, of course, comes back to some of the challenges that we saw at Babine and Lakeland. There, there was a union, and a union that understands that workplace pretty well, and still there were failures — significant failures — around the operation of that committee. If the committee had functioned better and if the committee had been working more effectively, maybe there would have been flags raised that might have made a difference. We will never know, and we can’t speculate about that.

What we do know that is in a workplace…. The question about union or non-union just becomes a question of capacity and whether the resources and the capacity for the workers is greater in a unionized workplace. I would argue it is, if the union is doing their job.

I guess what I’m trying to do is determine what the thinking is, on the minister’s part, about how to ensure that these committees do what I believe she wants them to do. And it has got to be more than a citation. I don’t know what it is, but it’s probably more than a citation to make sure this doesn’t happen.

Again, I guess my question is: has there been thought, a conversation — I’m sure an awful lot of thought has gone into this bill — about how you get at smaller workplaces — 25 workers, 30 workers? It’s maybe a dangerous situation that creates risks, where you don’t have that committee functioning in the way it should? How do you get at that?

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S. Simpson: Does the minister — and the ministry may know this — have an estimate from WorkSafe or whatever now of what percentage of employers today who have over 20 employees don’t have a health and safety committee?

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S. Simpson: I’m sure we would all like it to be 100 percent. But I suspect the minister — I certainly don’t — isn’t entirely certain that it’s 100 percent in many of these businesses.

Do we know how many citations got filed in any given period of time just to workplaces because they didn’t fulfil the current obligation — not the future obligation — around committees? What kind of citation rate are we seeing?

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S. Simpson: When I look at the section around duties and functions…. The minister talked about wanting to make sure — and WorkSafe wanting to make sure — that the committees are well-prepared to deal with all of the matters in section 130, including the new clause that will be added by Bill 35.

When I look through the act, the place that I see where there might be some capacity-building for people who are members of the committee is 135, around educational leave. Now, that’s not part of the act. But it does state in 135 that there could be annual leave of up to eight hours or “a longer period if prescribed by regulation,” for the purposes of health and safety training, etc.

In order to be able to get at this increased or enhanced role, is the minister confident that that time frame — one day, essentially, a year — of educational leave and supports is adequate for members of the committee to be able to do their jobs, particularly if the expectation is that now they are going to need to learn and maybe understand things about equipment and machinery that they may not grasp entirely?

We know that the people who are members of this committee are as likely as not to not be the people who will necessarily use that machine. They may be people who do something else at the worksite and to understand that.

Is there expectation around that? Is that part of the audit consideration for WorkSafe, with the audit tool, to look at questions about whether educational leave, capacity-building — whatever you want to call it — for members of the committee will need to be enhanced so they have a better capacity to do their job?

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S. Simpson: My apologies. I was looking at this, and I might have missed the minister’s comments. Did she say that on part of the work, while it is not contemplated at this time, the expectation is that — maybe as part of the audit function or development of that tool — some consideration will be given to that enhanced time?

I do note that section 135 does allow for longer periods, if prescribed by regulation, for the purposes of attending training, etc. Presumably, there is some regulation available today that would allow for WorkSafe to be able to direct that there needs to be more time. Is that going to be part of that assessment and the audit? Is that expected by the minister?

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S. Simpson: I don’t know, either, whether it’s necessary. I don’t have the expertise, certainly, to have any idea. I’m sure it will be different in different circumstances. There may be cases where it makes absolute sense and other cases where the current act meets the needs just fine and the current regulation meets the needs just fine.

The minister talks about the dialogue. Just so I’m clear on that, is that the dialogue that the minister expects that WorkSafe is having around any regulatory or policy change — certainly the regulatory change, because we know the obligation there? Is that the dialogue that the minister is referencing, or is there another dialogue?

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S. Simpson: I think the last question I have in relation to this. Is it the expectation…? It goes back to this dialogue, and I think a good conversation with the appropriate people at the table will be helpful in doing this. The minister, I think, in her last answer or the one previous, said that there’ll be a dialogue that will look at how the amendment — in this case, it will be “including significant proposed changes to equipment and machinery,” which is the amendment here — might affect requirements or obligations around training and whether the eight hours, or whatever else the employer has on the table, meets that need.

Is the minister expecting that conversation to be kind of limited to that amendment? Or does she anticipate that to be a conversation — particularly after the discussion we’ve had about whether committees have always functioned the way that they should? Or is she expecting that to be a dialogue about the much bigger question of section 130 overall?

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S. Simpson: Section 5 is a dispute resolution section of sorts. Essentially, what it says is that…. It puts a new section (2) in, or a renumbered section (2), that says: “If the Board considers that a joint committee is unable to reach agreement on a matter relating to the health or safety of workers at the workplace, the Board, on its own initiative, may investigate the matter and attempt to resolve the matter.”

I guess the first question I have here is…. I find it interesting that it uses the word “may” in this, rather than “shall.” If you have a deadlock — if you come to some loggerheads at the committee around a significant matter — it suggests that the board could intervene if they chose to at the request of a co-chair of the committee.

We know there’s an employer and a worker co-chair. If one of the co-chairs broached the matter with WorkSafe, they could choose to intervene.

Could the minister tell us why the word “may” was used rather than “shall”?

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S. Simpson: I’m assuming here…. As the minister says, it adds a second power. The clause itself, in 132, just suggests that the board could investigate and attempt to resolve the matter but not be obliged to resolve the matter.

What the new section says is that the board, “on its own initiative, may investigate the matter and attempt to resolve the matter.” So it’s saying here that the board doesn’t really need to consult with the committee if it decides that it’s a matter that needs to be addressed. They can proceed and do this on their own — that’s my interpretation of the addition — versus what the current language says, which is that they could investigate and resolve at the request of the co-chair.

I’m sure there are other matters, whether they be disagreements about other things or personality matters, that could lead to difficulties in a committee making decisions.

The question I had is probably not so much…. I understand, actually, the “may” in the first section, the existing section, more than I do in the second section — as to the need to actually step up and deal with this. That’s an issue that I have there. The question, though, that I want to ask goes a little further than that.

I want to be clear that in the minister’s view, this is really an addition to the potential interaction between a joint health and safety committee and the board. There are other places in the act, or there are other steps that a health and safety committee or a co-chair could take to engage the board if they felt it was necessary to do that. Just to be clear, for the record, this is an additional tool that’s provided here, and it’s not to be seen in any way to dilute the purview or the capacity of the health and safety committee to request assistance from the board to resolve matters in other ways.

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S. Simpson: When the minister talks about it being incremental and those choices in front of it, just to be clear here, then, again we have a situation where there shouldn’t be any concern here that the committee or committee members, if they feel the need to do this, can still, obviously, contact WorkSafe in other ways and engage them.

Obviously, it’s up to WorkSafe to decide whether that’s appropriate or not and whether they’re going to act, but WorkSafe, by its current practice, by regulation, will engage in those processes when they’re contacted in other ways.

We know that we’ve seen everything from…. We can go to the Lakeland situation, where it was an anonymous phone call that brought investigators out. Sadly, they didn’t take that investigation where I think they should have, but that’s what brought them to the Lakeland site.

It is about adding these powers, whether they’re called incremental or not, and certainly not looking to dilute any of the other powers on the part of anybody working at a given workplace to be able to engage WorkSafe if they really feel it’s necessary, and then WorkSafe to make their own judgments about whether this requires action.

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S. Simpson: Section 6 deals with the question of immediate notice of certain types of accidents, and this is related mostly to fires.

The jury recommendation, recommendation No. 11 in the review, said to review section 172 of the Workers Compensation Act to ensure that “an employer must immediately notify the board of any fire or explosion that causes a business interruption.” The coroner’s comment in relation to that was: “The inquest heard that there were two significant explosions/fires at Lakeland mill in January 2012, neither of which was reported to WorkSafe B.C. or fire officials. Evidence indicated that near misses should be treated as important opportunities to consider and alleviate risks.” That’s what the jury recommended.

What the amendment does to section 172 is that it requires an employer to immediately notify the board in the event of a fire or explosion that had a potential for causing serious injury to a worker. It has changed the language “fire or explosion that causes business interruption,” which was the recommendation of the jury, to “potential for causing serious injury to a worker.”

The difficulty I have with this, and the question I have, is that a business interruption is pretty easy to understand. When we listened at the Lakeland inquest to the two incidents…. We’ve all heard the story of the fireball 30 feet in the air the day before the Babine explosion, which did cause the mill to be shut down at Lakeland while the fire was extinguished. There was a cleanup, an extensive piece of work before the mill was able to ramp back up and go back to work.

Yet the situation here, of course, is that there were no injuries there. There was discretion there for the employer to determine whether there was risk of a serious injury. That’s a question of interpretation. Yet what the jury recommended, which I think is sound, was a significant business interruption — which is what would have occurred. While Lakeland could have argued that they did not think there was a legitimate risk to people in that fire — at least made an argument for it — they could not have made the case that there wasn’t a business interruption.

Could the minister tell us why the decision was made to have the language that is included in the amendment, rather than the language that was recommended by the jury?

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S. Simpson: I appreciate the minister’s answer. We know that part of the challenge is that if you have a fire, in most instances, I think you’re going to determine that it will disrupt business, particularly if the fire has to be extinguished.

We know that was the instance, the testimony, that we heard about two fires, both of which would have met the standard of disrupting business — the two significant ones that came in the period prior to the Lakeland explosion. In both cases, they required a significant business interruption in order to get the fire under control, extinguish the fire, go back…. You know, they shut equipment down, obviously, when it occurred. They shut everything down, fight the fire, put the fires out, start the business back up again. So you get a business interruption on any fire that’s significant.

We know, I believe, the investigation at Lakeland…. The report suggested that there were as many as five fires that occurred prior to the actual explosion, all of which weren’t reported, it’s my understanding. That was part of the problem.

In my discussions with people about the issue, part of the concern that gets raised — maybe this gets addressed by the amendment…. It becomes a bit of a judgment call, and the judgment call, of course, is in: were people at risk, or was it regular business?

We’ve heard many occasions…. I believe it was in the Babine testimony — I certainly heard it in the Lakeland testimony — that it started to normalize, that some degree of fires is a normal state of affairs, and they kind of normalize it and take it for that. The question is: would those be determined to actually be a risk to health and safety, or are they just seen as part of doing business? You get the fire extinguishers and put them out, even though they might trigger something else, versus a fire that, at least if it’s significant enough, you shut the business down — that it does do that.

I just think that this is a matter…. I support the amendment that’s there, but I do worry — as we’ll talk about in the next section, which we’ll get to in a minute — about whether there’s some narrowing here that creates problems by putting that narrow of a focus on it. It is my sense that actually the jury had a broader interpretation than what exists in the section.

This may not be a question, but I hope that in the writing of regulation that supports the changes to 172, there may be room to expand on this through the regulatory process. So maybe I will make that the question. Does the board, through the regulatory process, have the ability to expand the section, based on the jury’s recommendation, or are they obliged to kind of stay within the parameters as identified in the legislation?

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S. Simpson: Section 7 deals with amendments to 174 around the investigation process.

This is the section, along with the next section, where I will be proposing amendments to the two sections. I want to say at the outset that the minister and I had an opportunity to have a very good and a positive discussion, and a positive discussion with the minister’s staff, around these issues and around the concerns that I have around the issues. We don’t entirely agree here, but the discussion was worthwhile, and I’m hopeful it will prove fruitful over the next little while.

I’m counting on us getting through this section. We may end up at 175 tomorrow, when we finalize the bill tomorrow.

What section 174 does is lay out the investigation process that will move forward. The amendment lays out very specific things. It says:

“An investigation required under this Division must be carried out by persons knowledgeable about the type of work involved and, if they are reasonably available, with the participation of the employer or a representative of the employer and a worker representative.”

Then it goes on to say, very specifically, what will occur here, which is the amendment.

“(1.1) For the purposes of subsection (1), the participation of the employer or a representative of the employer and a worker representative includes, but is not limited to, the following activities: (a) viewing the scene of the incident with the persons carrying out the investigation; (b) providing advice to the persons carrying out the investigation respecting the methods used to carry out the investigation, the scope of the investigation, or any other aspect of the investigation; (c) other activities, as prescribed by the Board.”

There are issues here, issues that are raised, certainly have been raised to me by workers’ representatives, about whether this constitutes — I would say everybody that I’ve talked to says it does, as they believe, inadvertently — some narrowing of the role of workers’ representatives. I want to be clear here that nobody has suggested to me for a minute that the intention was to consciously do that, but the belief is that the result may well do that.

Also, the discussion is whether it becomes somewhat of a challenge, with the language in section 130, about the role that workers have in investigations. I’ve had this discussion with the minister prior to today, and I know the minister has been pretty clear with me about what her intent is.

I guess maybe, at this point, my question is: could the minister tell me what the rationale is for including a couple of very specific items that are mostly around consultation or observation, (a) and (b), largely, rather than something that is broader around the question of active involvement in the investigation?

...

S. Simpson: I appreciate the answer.

When I got to looking at this, I thought about the minister’s comments about that and comments that were reflected by staff about whether you were creating challenges. I went looking for examples. Probably the one that jumped out at me the most was the Canadian Standards Association’s examples. They’re, in effect, the CSA national standard for occupational health and safety management. They have a section on worker participation, and this was adopted in 2014.

What it says is:

“Worker participation is an essential aspect of the occupational health and safety management system in the organization.

“The organization shall ensure active participation by workers and worker representatives, where they exist, at all levels of the organization, including those exposed to the hazards, by providing workers and worker representatives with the mechanisms, time and resources necessary to participate in, at a minimum, the processes of planning, implementation, evaluation, corrective action and preventative action; provide workers and the worker representatives with timely access to information relevant to the occupational health and safety management system and processes for ensuring participation in that OH-and-S system.

“Encourage worker participation by providing mechanisms that support worker participation, such as identifying and removing barriers to participation; engage existing workplace health and safety committees or worker representatives; and ensure that workers and worker representatives are informed, consulted and given the opportunity to participate in all aspects of the OH-and-S.”

That talked about how workers should engage in the committee. But they’ve gone on now — and this is a draft piece of work, but it’s an important piece of work — and the CSA has drafted a national standard for incident investigation language and for worker participation in incident investigations.

What they say is workers or worker representatives or both represent an essential aspect of the incident investigation prevention program, and the organization shall provide workers or worker representatives the time and resources to participate effectively in the planning, incident response, investigation, analysis, recommendation, implementation, validation and continual improvement.

Encourage workers or worker representative participation by providing mechanisms that identify and remove barriers to participation; ensure workers or worker representatives or both are informed, consulted on and given the opportunity to participate in all aspects of the incident investigation and prevention program associated with their work or the workplace they represent.

My question is: was there a review of these standards? If not, what standards were reviewed to come up with the language for 174?

...

S. Simpson: I’ll move the amendment in a bit. We’re debating the amendment that we’ve both seen, but we’ll get there in a minute.

I go back again to the CSA standard, and I am assuming they’ve done a lot of work on this. It’s an organization that has an excellent reputation in terms of the work that they do.

The clause that jumps out at me around incident investigation language is: “To provide workers or worker representatives the time and the resources to participate effectively in the planning, incident response, investigation, analysis, recommendation, implementation, validation and continual improvement of the workplace.” That’s the one that jumps out at me as kind of being right there.

The minister talks about lists, and I’m the first one to agree. I cringe at lists, because when you put lists in, you inevitably leave something out, or you do things that might prove contradictory sometimes.

That’s why my inclination is to go with something that provides a broad direction to WorkSafe, because at the end of the day, they will use their regulatory process, I’m assuming, under (c) in this bill to, in fact, write that regulation that talks about the parameters of involvement. Because it’s a regulatory process and it’s directed under that process, there will be significant opportunity for engagement from everybody who wants to be part of that discussion.

I think that’s a good thing, and I think that’s a pretty good place to do this work. I think it’s probably a better place to do the work than in the legislation itself. That’s why it’s my belief that the legislation should simply direct the breadth of that.

The question I guess I want, to the minister, is…. The minister made reference, in her last response, to writing to WorkSafe and providing them her thoughts and direction around how to proceed with 174 and what she means by that when she looks at clause (c). Could the minister talk a little bit more about what she envisions being the substance of that letter that she will send to WorkSafe to provide them guidance or direction around what should happen with 174?

...

S. Simpson: I appreciate the minister’s comments about what her expectations are going to be about how WorkSafe will proceed with preparation of a new regulation.

I would note that the minister talked about the coroner’s comments under recommendation 9. To be clear, the recommendation was to clarify the meaning of the term “participation” in section 174 of the Workers Compensation Act to ensure full and meaningful participation in the investigative process by both the employer and the worker’s representative.

Of course, the challenge is whether, when you look at the recommendation, or when you look at the section, it talks about “viewing of the scene,” “providing advice to the persons carrying out the investigation….” The pieces that are specifically identified here, the two clauses that are identified, certainly are ones more of observing, of oversight, rather than being engaged, necessarily, in the investigation and the recommendations, writing and those things.

I think that’s where we have a difference here, as we move forward.

At this point, I want to move the following amendment. The amendment is to replace section 7(1.1) with the following. It would be to exclude section (1.1), as written here, and replace it with this:

[For the purposes of subsection (1) the participation of the employer or a representative of the employer and a worker representative shall be included in every aspect of the investigation.]

I will move that amendment. I can provide a copy. She has a copy, but I have tweaked it a little bit since before, and I will make that change here so that the minister knows exactly what I’ve done.

....

S. Simpson: On the amendment, what I’ve decided to do…. I’ve been compelled, actually, by reading the CSA standard, to shift the amendment a little bit. I had initially thought about putting in the active involvement and leaving the clauses in that the minister references, but I think, at this point, I want to just close the amendment with, in fact, the language that is there, which just simply says that a worker representative shall be included in every aspect of the investigation.

I believe that leaves the parameters open. I believe it opens the door for exactly what the minister says that she wants to accomplish, which is to engage a full and active discussion of what that investigative process should be and what in fact every aspect of the investigation should include. I think that the minister’s suggestion that a public hearing and a full, open and transparent regulatory process by WorkSafe is a good way to go to get to these solutions, and I’m supportive of that.

I just believe that the important thing here is that there has to be a clear message. I’m confident the minister is going to deliver that message in the letter that she will send to WorkSafe, but I think it’s more important that it be delivered in the legislation. I think it’s more important that it be in the law.

While this minister, I certainly believe, has the desire to do that and believes that, I am of the view that we could have a new minister next month — it’s not, hopefully, going to happen, but we could — and that new minister could take an entirely different view. I would hope that wouldn’t occur, because I think this minister is very sincere on this topic. But I believe that that could happen.

So I think it has to be entrenched, and I’m absolutely certain that the language that’s there does not do that. I’m hopeful that we will get through this process. This amendment will end as it will, but this discussion will allow the participation, will encourage WorkSafe and allow a discussion to happen in the regulatory process that will in fact ensure that we get the kind of language here around the role of workers that we’re all, I hope, looking for and that, unfortunately, I don’t think section 174, as it’s currently written, takes us to. I think it is a flaw. I don’t think it was intended, but I think it is flawed.

...

https://www.leg.bc.ca/documents-data/debate-transcripts/40th-parliament/4th-session/20151104pm-Hansard-v31n1

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Saturday, November 16, 2019 - 12:00pm - 4:30pm