Mr. Speaker, this afternoon I will speak about Bill S-2, An Act to amend the Hazardous Materials Information Review Act. This bill originated in the Senate and had already been tabled. It was formerly called Bill S-40. It has been renumbered and is now S-2.
This bill aims to improve the current process of the Hazardous Materials Information Review Act, and it has three main objectives.
The first objective is to allow companies that want to be exempted from the general rules concerning the listing of hazardous ingredients to make a declaration that information in respect of which an exemption is claimed is confidential business information, and that information substantiating the claim will be provided on request, rather than de facto providing all information.
The second objective is to allow companies to voluntarily give an undertaking to the Hazardous Materials Information Review Commission to modify and to bring a material safety data sheet or a label of products containing hazardous ingredients into compliance with the provisions of the Hazardous Products Act or of the Canada Labour Code.
The third objective is to allow the limited participation of the Hazardous Materials Information Review Commission before an appeal board.
The Workplace Hazardous Materials Information System, or WHMIS, combines an assortment of legislation, regulations and procedures whose objective is to protect workers by preventing illness and injury that could result from the use of certain hazardous chemicals in the workplace.
Quebec, the provinces and the federal government are all part of WHMIS.
Under WHMIS, manufacturers and distributors of controlled (hazardous) products must provide information on the health and safety risks associated with their products, together with instructions for safe handling, storage, transportation, disposal and first-aid treatment. This information is conveyed by the product’s mandatory Material Safety Data Sheet (MSDS) and label—
Each product's MSDS must include a number of elements. It must list all hazardous ingredients in the product, its toxicological properties, and the precautions one must take when using the product. The MSDS must also indicate the necessary first aid measures for anyone exposed to a product.
When the indications that must appear on the MSDS involve trade secrets—and this is where the problems begin—and disclosure of these secrets could have serious consequences, a mechanism is in place to, on one hand, assess the pertinence of not disclosing all the information and, on the other hand, ensure that workers' rights are protected. Therein lies the conflict between trade secrets and workers' rights. The mechanism in question is the Hazardous Materials Information Review Commission.
This commission was formed in 1987 and consists of quite a few people. That is the beauty of the commission, which has about 18 people on it. There are automatically two representatives of worker interests, one representative of suppliers, one employer representative, one representative of the federal government, and various representatives of the provincial and territorial governments for a total of about 18 people, who form a review committee.
Simply put, the commission’s mandate is to “help safeguard both workers and trade secrets in Canada’s chemical industry”. So when a company wants an exemption from its general obligations in order to safeguard confidential business information—this could be the identity or concentration of a hazardous ingredient in one of its products—it must apply to the commission for an exemption. The claim is registered and it is up to the commission to decide whether an exemption is called for.
The commission’s mandate may also cover evaluating whether certain data sheets and hazardous product labels are in conformance.
There are certain problems with the current legislation. It mandates the council to make recommendations to the health minister on the methods for reviewing claims, the appeal procedures, and the fees to make a claim.
There are three kinds of problems: the complexity of the economic information, the lack of a voluntary process for correcting the data sheets, and finally the lack of flexibility in the exchange of information between the commission and the independent boards in the appeal process.
That is why the bill proposes three amendments. The first amendment in clauses 1, 2 and 8 proposes a change to the obligations in section 11(4) of the Hazardous Materials Information Review Act in order to specify that when companies claim an exemption, they do not need to provide all the documentation previously required. This is intended to reduce the complexity of the claims, especially when the information does not really help the commission very much in judging the economic aspects of the claims.
Under the current process, companies claiming an exemption must submit detailed information on what they have done to safeguard the confidentiality of the ingredients used to manufacture their product and on the financial impact of the possible disclosure of this information.
In her testimony given to the Standing Senate Committee on Social Affairs, Science and Technology in 2006, Sharon Watts, vice-president of the Hazardous Materials Information Review Commission, specified in which cases the commission would require full documentation.
The commission will require full documentation to support a claim for exemption from disclosure when an affected party challenges a claim or when a claim is selected through a verification scheme that we will set up to discourage false or frivolous claims
The second change is proposed at clauses 3 and 4 of the bill which amend sections 16 and 17 of the Hazardous Materials Information Review Act in order to establish a new mechanism for the voluntary revision of material safety data sheets by the companies. With this new mechanism, when a company files a claim for exemption, a screening officer may “send an undertaking to the claimant setting out the measures that are required to be taken for the purpose of ensuring compliance” with those provisions governing dangerous goods contained in the Hazardous Products Act and the Canada Labour Code.
The purpose of this second change is twofold: to ensure that changes to material safety data sheets and labels are made more quickly and that companies acting in good faith will not be issued an order by the HMIRC, as this could be misleading about their willingness to comply.
In comparison, current legislation requires the Hazardous Materials Information Review Commission to issue a formal order for compliance, even if the company seeking an exemption is prepared to comply and to make the necessary corrections after having been notified.
The legislation also provides for a rather strict and time-consuming process. Thus, where non-compliance is found, an order is issued to the company seeking an exemption. This order is then published in the Canada Gazette and it does not become binding until 75 days after its publication. Other time limits are specified in the event that the company decides to appeal the order, or to allow the company to comply with the order and submit a new data sheet.
Finally, the existing rules would still allow orders to be issued to uncooperative companies in case of non-compliance with the rules and in the absence of a voluntary undertaking.
The third amendment proposed in Bill S-2 is contained in clause 7 of the bill, which amends the former section 23 of the Hazardous Materials Information Review Act, to enable the commission to provide clarification in respect of an appeal that has been submitted to an appeal board. Clause 8 amends section 48 of the Hazardous Materials Information Review Act to permit the making of regulations “respecting the participation of the Commission in an appeal heard before an appeal board”.
According to representatives of the commission, the third amendment seeks “to improve our appeals process by allowing the commission, at the request of an appeal board, to provide factual clarification of the record to appeal boards, when needed to facilitate the process. Appeals are heard by independent boards with three members drawn from labour, industry and government. The government member acts as chair of the board. Most appeals heard to date would have benefited from additional explanatory information from the commission, but this is not permitted under our legislation”.
In short, the Bloc Québécois supports Bill S-2. The Bloc believes that when it comes to hazardous materials, it is vital to keep in mind worker safety and to base all decisions on that imperative.
The Bloc Québécois recognizes that the amendments to the Hazardous Materials Information Review Act contained in Bill S-2 were unanimously approved by the members of the HMIRC council of governors.
The Bloc, therefore, supports Bill S-2 so that the amendments called for by the principal stakeholders in this kind of workplace can be adopted.
In all its actions, the Bloc seeks to protect the interests of workers. That is why we tabled Bill C-257, which, unfortunately, died on the Order Paper; a bill dealing with preventive withdrawal would have enabled pregnant Quebec workers in companies operating under federal jurisdiction to receive the same benefits as Quebec workers—another bill that died on the Order Paper; and Bill C-269 to improve the employment insurance system.