Transport Committee on April 3rd, 2008

[Brian Masse, NDP, Windsor West, ON]

Yes, give a couple, and maybe you can follow that up with documentation.

[Paul Miller]

I appreciate the offer for that.

An example is a recommendation that all dispatching be done from Canada. We agree with that. All our dispatching for Canada is done from Canada now, in our rail traffic control offices in Edmonton, Toronto, and Montreal.

Where there's a bit of a nuance is at the border. You don't tend to have a control point right at the international boundary between Canada and the U.S. One of our most important places is at the bottom of the Sarnia-Port Huron tunnel. We don't want to stop a train there in order to hand off control to another country, so we'd like to have some discussion with Transport Canada and others, and with our union of rail traffic controllers, to have a little bit of flexibility at the border locations. Other than that, from a general perspective, we don't have any problem with that recommendation. It's that type of thing. It's more getting it down to operationalize it.

In terms of things that we had proposed to the panel, many of which found their way into the report and into the recommendations, we were hopeful that there might be a recommendation concerning drug and alcohol testing, and--this is a minor point--we were hopeful that there might have been a bit more of an opportunity to harmonize some of the reporting regulations, accident reporting formats, and so on between Canada and the U.S., because we're increasingly becoming a company that operates in both Canada and the U.S.

Those would be examples. Frankly, those two are the only ones we would have asked them to add.

[Brian Masse, NDP, Windsor West, ON]

I want to revisit the issue of discipline. What are you effectively doing with employees? What programs are you doing to at least show by management leadership to the union that you're addressing this issue to provide the supports and the confidence that people will not be penalized? Do you have actual programs in place, or tangible things that are being employed to break down that element?

[Paul Miller]

Of course, actions speak the loudest in that regard, so we just have to be forever on our guard, for example, when an employee brings forward a safety concern—an indication that there had been a near miss or a possible incident—that the employee is not disciplined for it and that action is taken as a result. That is the push we're trying to put on. I've taken it as a bit of a personal push to try to watch across the system and ensure we take that approach when these things develop.

[Brian Masse, NDP, Windsor West, ON]

Thank you.

[The Chair, Conservative, Merv Tweed]

Mr. Watson is next.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair. My intention is to split my time with Mr. Fast. If you can let me know when I've hit about five minutes, I would appreciate it. Thank you.

Thank you, Mr. Miller, for coming here. Mr. Bell earlier said that he was pleased with your testimony. I'm not. I find there are a lot of things that I'm having a lot of difficulty with.

You've gone to some length today to talk about holding people responsible. This really is the problem with respect to a culture of fear: it's still focused on disciplinary actions for judgments and decisions that have gone wrong. It's not the full, fearless involvement of people in pointing out the types of things that would prevent accidents. You're still stuck in the mindset underlying what the panel found to be a culture of fear.

You've belaboured this point today. I have a real problem with that, when you are talking about your “progress”. In the last appearance, when CN was before this panel before, they went to some length to point out how far they're going in punishing employees, to the point where I asked the question whether they can provide to this committee the number of disciplinary actions taken against employees. That's how far they went in making that point.

If you want to really boil it right down, not long ago I asked Mr. Lewis, who headed the panel.... I said, you talk about the continuum—that's pages 73 and 74, “An Evaluation Tool for 'Safety Culture'”, and you can read this if you'd like—but the best practice that you're looking for is the full implementation of SMS, which is stage 5 in the continuum. That's the only best practice.

Air Transat, VIA, those who are on their way are close to that particular point. That's where you see that there aren't safety issues or there aren't real safety problems, the types of accidents we're seeing with CN.

I asked Mr. Lewis where, on that scale of one to five, he put Transport Canada as the regulator; he put us at about a three. I asked where he put VIA Rail; he put them at about a four. I asked where he placed CP; he said in the mid-range, which would be about a three. And what did he say about CN? “Well, I'd put them between one and two in terms of implementing adequate SMS.”

Step one—let's read it into the record:

At one end of that continuum is a company that complies with minimum safety standards and views compliance as a cost of doing business. That company minimizes compliance expenditures and operates from a short-term perspective, addressing problems only after it has been caught in violation. The regulator must engage in significant surveillance and enforcement activities.

That's stage one.

Stage two:

Next in the continuum is a company that views safety solely as compliance with current safety standards. Such a company has internal inspection and audit processes, as well as a system of reward and punishment. There is an assumption that compliance translates into safety, but such a company has not yet realized that compliance alone will not necessarily prevent an accident from happening. Intervention is still required from the regulator, though the approach may be more educational in nature.

That's pretty pathetic, Mr. Miller, and that's what they say about CN. You're asking us today to take your word that you're somewhere higher than that. You say you're not a four or a five—you're implying that you're a three—and that your long journey of culture change, you imply, has been started since 1986.

I'm not sure I'd be bragging that I started that long ago, because you have a lot further to go. Stage one and two: how do you respond to Mr. Lewis' assessment, Mr. Miller? I think the evidence backs him up.

[Paul Miller]

Well, with respect to both you, sir, and Mr. Lewis, I don't agree that we're a one or a two in this continuum. I certainly agree we have more to do in our management culture to improve in these areas, but that's not where I'd place us in this continuum.

I read here in stages four and five, for example, “include safety in its business and operational decision-making processes”. We do that. “Safety is reflected in core values”; even the admittedly poorly worded and ordered sign that Mr. Bell provided us with shows that safety is in our core values.

[Jeff Watson, Conservative, Essex, ON]

Mr. Miller, with all due respect, stage four says: “The regulator’s role is primarily one of monitoring the company’s safety performance.” We've had to issue a number of notices and orders. That's not simply monitoring the company's safety performance; that's very active intervention.

Mr. Chair, I'll cede my time to Mr. Fast.

[The Chair, Conservative, Merv Tweed]

Mr. Fast, you have two minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair, and thank you, Mr. Miller, for appearing. You're in the lion's den, obviously.

I challenge you as well, because I'm not pleased with the testimony I hear. I'd assumed somewhere along the line there'd be a mea culpa, there'd be acceptance of the fact that Mr. Lewis did his job, made findings that were based on evidence. In fact, his findings back up what we heard from many witnesses under this rail safety study. Not only this study itself, but this committee's study has had many witnesses that all support the conclusions Mr. Lewis has drawn, that there is a culture of fear within your organization.

To try to address that issue of the culture of fear within your organization, clearly it's going to attract some legislative amendments to the Railway Safety Act. It's unfortunate. I had a chance to compare the rail safety regulations with what we've now done in Bill C-7, which makes amendments to the Aeronautics Act. Quite frankly, the Aeronautics Act amendments are very specific now as to what's expected, including the area of addressing reporting by employees. You're not going to get reporting from employees if there's a culture of fear. One of the clauses within Bill C-7 is, of course, immunity provisions, so employees cannot be disciplined if they report safety issues within their company. If amendments like that come forward for rail safety, are you, the company, prepared to support immunity as a concept that will be legislated and required under safety management systems?

[Paul Miller]

Sir, we don't have a problem with immunity as a general concept, certainly from the point of view of reporting. Again, we don't discipline employees for reporting safety problems, safety issues. Where I guess it becomes a bit problematic is where you get down to the operational level. You could have a case, for example, where an employee has unfortunately had a record of issues with a particular type of rule violation. Then they self-report or one of their peers reports another issue. I'm not sure how that would be handled in the--

[Ed Fast, Conservative, Abbotsford, BC]

It was very clear that the aviation community was very supportive of immunity, right from management and pilots down to the workers. In fact, the workers wanted to go beyond that and go to true whistle-blower legislation. Immunity was accepted by that industry. I'm surprised there's not a wholesale acceptance of that concept by your company. We're going to get a chance to ask CP about that as well, and I'd like to know where they stand on that issue.

[The Chair, Conservative, Merv Tweed]

I'll go to Mr. Maloney for five minutes, and he is going to share his time with Mr. Bell.

[John Maloney, Liberal, Welland, ON]

Thank you, Mr. Chair.

The panel targeted management as an area of concern. In your estimation, is this a serious issue with your company? Are there a maximum number of hours that, say, train operators are allowed to do in a day or a week? If they exceed these hours, what tools do you have to manage fatigue?

[Paul Miller]

Fatigue management mostly relates to train and engine crews in particular in our industry, so I'll keep my remarks there. There's a rule and a set of implementation guidelines around that rule that's I think two or so years old now. I might not be quite right on that date. The industry worked very closely with the unions and with Transport Canada to put this in place. The way we protect against violation of that rule—and it does cover exactly what you asked, the number of hours per day, the number of days per week, the amount of rest between shifts, and so on—it's programmed into our crew-calling system. So if an employee is not available, based on potentially violating any one of those rules, they will not be presented to be called for work for that train or for that yard assignment. That's the protection.

Fatigue management is a very significant issue in our industry. We think the panel members did a very good job of identifying the relationship and the interplay between fatigue management science and what we would all like to do, as it then starts to get involved with collective bargaining issues. What train or what assignment someone gets called for will tell us what that person is going to be doing when and how much they're going to get paid, so suddenly the collective agreement starts to get involved.

One of the key things we can do for fatigue management overall is scheduling. The more employees are scheduled, the more they know when they're going to work, the better they can plan their rest strategies and so on, taking out some of the surprises that unfortunately we get now. We've been very successful with scheduling in our U.S. operations, and a high percentage of our train and engine crews are scheduled. It's moderately successful in eastern Canada, and there's still more work to do. Scheduling is less successful in western Canada, which has more to do with the nature of the operation. There are more unscheduled movements of coal, grains, sulphur, potash, and things of this nature, that don't run on a particular schedule.

[John Maloney, Liberal, Welland, ON]

What are the maximum hours, say in a day or week?

[Paul Miller]

Eighteen hours in a shift—please don't quote me on this—and 64 hours in a seven-day period.

[John Maloney, Liberal, Welland, ON]

Eighteen hours strikes me as a long time to be working.

[Paul Miller]

That's with a break between. For example, if you started your trip at a home terminal and went down to a turnaround point and, say, you got there in seven or eight hours, you would be able to come back after taking a bit of a break at that destination point. However, if the employee felt tired or thought it would be an unsafe thing to return, then they have the option of booking rest there, away from their home terminal.

[John Maloney, Liberal, Welland, ON]

Can they book rest in a motel, or do they go to a shack or—

[Paul Miller]

Yes, a motel or a company provided bunkhouse facility.

[John Maloney, Liberal, Welland, ON]

I would assume that some accidents occur because of defects in the cars you're pulling. Is that correct?

[Paul Miller]

That's right. Main track accidents tend to be related to either the track itself or the car equipment. So the rails and wheels are the two top causes.

[John Maloney, Liberal, Welland, ON]

Do you pull cars from other rail lines throughout the United States, and is there a policy of perhaps inspecting those for defects before a large train takes off down the track?