Human Resources Committee on Nov. 19th, 2013

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

So why now? Why is it prompted now? Over the last 10 years you've had about 100 claims per year. It seems to be fairly consistent. There doesn't seem to be a spike. Why the need to make this change now if it's not because of fewer officers in the field? What's your motivation?

[Kin Choi]

I think our numbers and your numbers don't match. Certainly we've averaged 150 to 200 cases of activity on refusals per year. That includes individuals as well as groups. So the numbers are quite large, and it takes a fair amount of work for our officers to go through that process. We're a 24/7 organization, so at times that means literally in the middle of the night they're travelling to address these refusals. We find that when those types of workplace issues can be dealt with through internal responsibility systems, then having our officers travel to work sites in the middle of the night is not a good use of our resources.

[Brenda Baxter]

I would also add that I think the reinforcement and the strengthening of the internal responsibility system is to get at some of those 80% of refusal-to-work situations that could be dealt with by the workplace parties if they ensured that each of the workplace parties was playing its part in identifying those hazards and mitigating them before they became dangerous situations.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

One of the outcomes of investigations has been recommendations to deal with the hazard.

[Kin Choi]

We feel that it's a better model if officers are able to work with the workplaces in advance, in a situation where the workplace parties are taking care of their hazards together. This situation will free up our resources to do more of that. We're doing that, but when we're spending our time on these refusal processes, which can be very lengthy, the workplaces are put it in a difficult situation. We recognize that. Our officers are put in a difficult situation. We're not advancing our mandate, and we're not making the workplace fair and safe and productive.

[The Chair, Conservative, Phil McColeman]

That ends our seven-minute round.

Now we'll move to five-minute rounds, beginning with Monsieur Boulerice.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

I want to thank our guests for joining us to answer our questions today.

I will try to build on some of the questions my colleagues asked. I will also try to not talk too fast.

I am somewhat concerned that the percentage of the refused worker claims—which is 80%—is used to justify changing the definition of the word “danger” to restrict and limit it in a way that, I think, is not in the best interest of workers. So we see that, in 80% of the cases—according to your figures—the claim would not be accepted. That means that the right to refuse dangerous work would not be granted. That percentage apparently comes from discussions you are holding within your department.

My colleague Ms. Sims asked you whether any problems were nevertheless identified in the cases that account for that 80%. She also asked you whether the directions were issued by health and safety agencies and whether requests for voluntary compliance were sent by health and safety officers. The answer is that the information we have does not enable us to establish a connection between the two. However, that connection is extremely important for determining whether, in those cases that make up the 80%, there were nevertheless some elements of danger that would be enough to warrant a change in the workplace.

I would like it if your data made it possible to establish that connection. If that is not the case, it means that the problem is not due to the old definition.

[Brenda Baxter]

Thank you for your question.

Mr. Chair, allow me to answer in English.

I think with respect to the 80% of refusals to work that were found to be not dangerous situations, the workplace may have contained potential hazards. These hazards can be mitigated so they don't create dangerous situations.

Through the amendments, we are reinforcing the internal responsibility system so that those parties can work together to mitigate those hazards before they become dangers. This means those are situations that the parties themselves can resolve, which means our officers can spend their time focusing on the very high-risk sectors and dealing with situations of danger, possibly resulting in a reduction in accidents and injuries.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Unfortunately, that's sort of like asking people to figure it out themselves, as inspectors are being removed from the workplace.

A lack of balance of power between workers and management is a problem. We cannot accept that figure of 80% as a justification for restricting the definition of the word “danger”.

I am very concerned by the fact that the notion of serious danger is being proposed. In the field, in a workplace, discussions will be held to determine what should be considered a serious danger. Will tearing a ligament be considered a serious danger? Will someone cutting their finger be considered a serious danger? Will intoxication be considered a serious danger? Will the risk of contracting a chronic disease be considered a serious danger? In certain situations, workers could be told that they may get a backache, but that this is not really a serious danger.

[Kin Choi]

Hazards in the workplace exist; that's just the nature of the workplace. What's important is looking at it as a continuum and seeing who best can address them. The employers have real responsibility to make sure the workplace is safe, and we're there with our officers and are very passionate to ensure that employers meet their responsibilities. Their responsibility to address the hazards is to ensure that employees have protective equipment, that they have training, and that there's a hazard prevention program in place.

Moving down the continuum, when there's disagreement, the employees have a right to participate, a right to know about danger; they have a responsibility to wear protective equipment; and they continue to have the right to refuse dangerous work.

Looking at that continuum, I don't think what you're arguing is dissimilar to what we're saying, which is that what we need to do is spend our time on prevention. When there is a situation in which there is danger, that's a sign that there are problems in the workplace, and there are other tools within the code, within labour relations, in the collective agreement, that the workplaces have available to them to address such a situation.

In the model we're moving to, I think we're actually arguing the same point, which is that by doing this our officers will be able to spend more time to prevent those things from coming forward.

To your question about whether our officers find other things when they go in for refusal, let me say that they find other things when they go in to do inspections up front. In our experience, and I've shadowed a lot of our officers across the country, that's when we do our best work: when we work with the employer ahead of time, together identify where there are potential hazards, and come back to help them with things they can do to improve.

I think that's the right model. It's the internal responsibility system model. That's the model that we see across various jurisdictions.

[The Chair, Conservative, Phil McColeman]

Time moves quickly. We're on to Mr. Mayes for five minutes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you, Mr. Chair, and thank you to the department for being here today.

One of the things I've learned is that when you want to have people take responsibility for doing a job, you give them the guidelines and then tell them, “Please do the job.” To address Mr. Cuzner's issue surrounding the 80 health and safety officers, the fact is that the 80 have reduced the number of incidents by 22.5%. Obviously 80 is enough; they're doing the job and they're professional.

I want to touch first of all on the guidelines and the definition of danger. I understand that the guidelines, which we're changing now as far as a definition is concerned, are more in alignment with the provincial definition. Could you clarify this? I could be wrong about it, but I had some notes on it.

The other thing is that these health and safety officers go through a pretty vigorous training. It's not as if you picked somebody off the street; they are professionals. I wonder whether there was any feedback from those professionals.

This is a little bit of a problem here. I think if we could address it, it would give me more time to do, as you said, the preventative work to ensure that the workplace is not only healthy for the employee but safer.

[Brenda Baxter]

Thank you for the question.

With regard to the definition of danger, essentially what we are doing is clarifying the wording of the definition of danger. The previous definition was very long and confusing. The clarified definition focuses on imminent or serious threat to life or health, and it includes incidents that could have an impact immediately or could be long-term. It covers pregnant and nursing women as well. The definition as we've proposed it is consistent with case law and with interpretations of danger within the workplace.

The substance of the definition of danger remains and continues to provide protections for healthy and safe workplaces.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you.

Of course, there is an appeal process, so if you don't agree with the decision, there's an appeal process.

Could you give me a little overview of how that works, who is involved in that appeal process, and how it functions?

[Brenda Baxter]

Essentially, when there is a refusal to work process, currently an employee would refuse to work and an employer would be required to undertake an investigation to look at the situation to try to resolve it. If there is no agreement and the employee continues to refuse to work, what we're proposing now is that the workplace health and safety committee would undertake an investigation to also look at the circumstances of the refusal to work, and together with those two reports would try to resolve the situation in the workplace.

If it is not resolved and the employee has a right to continue to refuse to work, the labour program would be called in to investigate the situation and to assist in resolving the situation.

At the outcome—the decision made by our officers with regard to the refusal to work, as to whether there's a situation of danger or no danger—that decision can be appealed by the employer or by the employee, and ultimately the appeal can also be taken to Federal Court, if there continues to be a disagreement with the outcome of that decision.

[Kin Choi]

Let me add that this process adds the second step, which a lot of our provincial counterparts have, and it's an important step. We've seen that where there are strong employers with good employer-employee relationships, they do this. We've seen it actually work in the workplace to make things better.

To your question about the appeal mechanism, at the end of the day our officers are still going to be available 24/7, and they will make a decision based on two sets of information, possibly, or maybe one: the employer's information and the health and safety committee information.

If there's agreement, then the employer will react to it. If there isn't an agreement, our officers can go in and investigate or look at the reports and so on. Once they make a decision, the recourse mechanism remains. Either party may go to the Occupational Health and Safety Tribunal, which is independent from our organization, to appeal that decision, and should they still disagree with the decision of the adjudicator of the Occupational Health and Safety Tribunal, they can also appeal to the Federal Court. So those mechanisms will remain enshrined.

[The Chair, Conservative, Phil McColeman]

Thank you.

We'll move on to Madame Groguhé for five minutes.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

I want to thank our witnesses for joining us today.

I think that your comments are raising so many questions, especially when it comes to the changes made to the definition of danger. In fact, two criteria are being explained again—that of “imminent threat”, which is a temporal notion, and that of “serious threat”. Those two terms are supposed to help determine whether a workplace involves danger.

I have two concerns about that. First, the definition of long-term dangers—such as exposure to a dangerous substance—is eliminated. The danger would not be imminent, but that exposure may be really dangerous over time. What is done in such cases?

Second, I think this is opening the door to too many loose interpretations of the term “serious”. Depending on the workplace, an employer may simply say that they consider an issue to be serious, while another employer, who may be faced with the same type of problem with a different employee, may say that the issue does not seem serious at all to them.

Some clarifications should definitely be made. However, that restriction may be taking away all the elements that play a part in the true protection of workers.

What can you tell me about that?

[Brenda Baxter]

Thank you for your question.

If I understand correctly, your concern is with regard to the clarification of the definition of danger and whether or not it continues to provide protections to employees with respect to impacts upon life or health that are longer-term.

The clarified definition does cover that. We're talking about imminent or serious impact to life or health. So if in a workplace employees are not provided with the proper training, the proper protective equipment, and the proper procedures to handle certain substances that could have a serious impact on life or health, whether it is immediate or longer-term, it is still covered within the clarified definition of danger.

Again, just to reiterate, there is no change to the right of an employee to refuse to work. If an employee has a reasonable belief that there is a danger to their life or health, they are able to refuse to work, and to continue to refuse to work, until there is a resolution.

[Kin Choi]

If I may add to it, you mentioned that the employer could decide it's not dangerous. With the change to the internal responsibility system, it's important to note that the health and safety committee, both the employer and the unions' employee representatives, will actually have a stronger role in ensuring that the dangers and hazards are being looked at, both throughout the entire workplace processes, if you will, as well as if there's a refusal process. It's not left to an employer to decide that this is dangerous or that's dangerous.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Chair, when an attempt is made to oversimplify things, sometimes the door is opened to too many interpretations. When we look at the changes made to the definition and see that the notion of exposure has been completely removed, that may as well be taking away the protection of certain types of workers.

I will give you an example. Let's say exposure to asbestos is discovered in a workplace. We know perfectly well that exposure to asbestos does not have an impact overnight; it happens over the long term. However, if asbestos is not listed as a dangerous substance that may have an effect on the workers, how will they defend their case? For instance, an employee could end up with pulmonary complications. How will that employee, who has become more fragile, be able to defend their case?

The restriction does include the term “serious”, which is to be defined by the employer. The interpretation of that term may vary from one employer to another.

[The Chair, Conservative, Phil McColeman]

I'm sorry. We do not have any time for your response because the five minutes is up.

We'll move on to the next questioner, and that's Mr. Daniel for five minutes.

[Joe Daniel, Conservative, Don Valley East, ON]

Thank you, Chair.

Thank you, witnesses, for being here.

I'm going to try to focus a bit more on some of the more important factors of ensuring a safe workplace. What I'm speaking about is the expertise of the men and women who serve as health and safety officers.

I'm pleased to hear that the amendments will not reduce the number of safety officers and that these aren't cost-cutting measures; they're more a streamlining of the services in order that the workplace will be more safe.

It's also worth highlighting the fact that from coast to coast to coast the health and safety officers will continue to be available, as you've already said, for 24 hours, seven days a week, to respond to situations of danger in the workplace.

In terms of the amendment that would give the Minister of Labour the power of health and safety officers, could you please explain why these changes are needed and how these amendments address those needs?

[Brenda Baxter]

With regard to the amendments and the move from a designation to a delegation model, essentially what we're proposing is to provide more support to our health and safety officers.

As was mentioned in one of the questions, I think, our health and safety officers deal with a range of issues. They are very difficult and challenging issues at times. We want to ensure that the officers have the right support in order to undertake those investigations. That includes ensuring that they have the proper training, the proper experience, and the proper certification for the various types of investigations they are undertaking.

This is essentially why we're moving from the designation to the delegation model, to provide them with that additional support when they're on the ground investigating these very difficult situations.

[Joe Daniel, Conservative, Don Valley East, ON]

Would you say that the independent expertise of the health and safety officers remains vital to assessing and ensuring a safe workplace?