DISCUSSION PAPER
1.
TITLE
Joint Health and Safety Committee Related OHSR Changes
2.
ISSUE
Bill 35 amended the Workers Compensation Act (“Act”), with a number of the changes
coming into effect January 1, 2016. The amendments in Bill 35 are primarily in
response to the Coroner’s inquest recommendations (“Coroner’s Recommendations”)
into the deaths of Glenn Roche and Alan Little as the result of the 2012 Prince George
mill explosion (“Lakeland Inquest”).
As a result of the Bill 35 amendments to the Act and the Coroner’s Recommendations,
the Policy, Regulation and Research Division (“PRRD”) has identified the following
proposed changes to the Occupational Health and Safety Regulation (“OHSR”):
1. Require an evaluation tool (referenced as an “audit tool” in the Coroner’s
Recommendations) to measure the effectiveness of joint health and safety
committees (“joint committees”) (Lakeland Inquest recommendation #17).
2. Establish minimum mandatory training and education for joint committee
members (Lakeland Inquest recommendation #20).
3. Clarify the meaning of “participation” in section 174 of the Act by providing
additional examples of what participation by worker and employer
representatives in an employer incident investigation includes (section 7 of Bill
35; Lakeland Inquest recommendation #9).
WorkSafeBC is requesting feedback on these proposed OHSR amendments, which are
attached as Appendix A and discussed below, resulting from Bill 35 and the Coroner’s
Recommendations.
3.
DISCUSSION
Employers are required to have a joint committee in each workplace where 20 or more
workers are regularly employed, or where it is required by order. 1 A joint committee is
made up of worker and employer representatives working together to identify and
resolve health and safety problems in the workplace.
1
Section 125 of the Act.
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Workplaces with 10 to 19 workers regularly employed, or where it is required by order,
must have a worker health and safety representative. 2 To the extent practicable, a
worker health and safety representative has the same duties and functions as a joint
committee.
The PRRD is proposing that three new sections be added to the OHSR to address:
1. evaluation of joint committees,
2. minimum training requirements for new joint committee members and new
worker health and safety representatives, and
3. examples of “participation” of employer and worker representatives in
employer incident investigations.
The PRRD consulted internally with WorkSafeBC subject matter experts. The PRRD
also conducted two joint pre-consultation sessions with key worker and employer
stakeholders on January 18, 2016, and February 15, 2016, to review the proposed
regulatory changes.
In addition, the PRRD worked with Legislative Counsel to develop the language for the
proposed changes to the OHSR.
3.1
Evaluation of Joint Committees
Sections 125 - 140 of the Act (Division 4) set out the legal requirements for and duties
of joint committees. Building on the general provisions set out in the Act, additional
provisions in the OHSR further set out employer obligations in respect of joint
committees and the joint committee’s roles and responsibilities in certain circumstances
(such as employer inspections and a worker’s right to refuse unsafe work).
Recommendation #17 of the Lakeland Inquest recommended that an “audit tool” be
implemented to measure the effectiveness of joint committees.
3.1.1 Proposed Changes to the OHSR
The PRRD proposes adding section 3.26 to the OHSR to address the Coroner’s
Recommendations. Although the Coroner’s Recommendations referred to an “audit”
tool, the PRRD is proposing to use the term “evaluation”. This is because legislative
counsel advised that “audit” is a specialized, technical term that would require the
employer to retain an independent third-party to evaluate the joint committee in every
case.
2
Section 139 of the Act.
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The proposed section 3.26 requires the employer to ensure that an evaluation of each
of its joint committees is conducted annually. The evaluation may be conducted by
either:
•
•
the employer or a person retained by the employer; or
by the co-chairs of the joint committee or their designates.
If the evaluation is done by the employer or someone retained by the employer, the
input of the co-chairs or their designates must be obtained and considered.
The minimum topics that the evaluation must include are set out in section 3.26(3). This
is a non-exhaustive list – the evaluation may include additional topics. The items listed
were chosen by the PRRD in consultation with an internal WorkSafeBC working group
that included WorkSafeBC officers. The list encapsulates what was thought to be the
most critical elements of Division 4 of the Act. The intent being that the evaluation
should determine whether the joint committee is generally in compliance with the Act
and OHSR, and also go further and assess the joint committee’s overall effectiveness.
The joint committee must discuss the finished evaluation at the joint committee’s next
meeting. The joint committee may respond to the evaluation using the existing powers
and procedures set out in the Act (such as making recommendations to the employer
under sections 130(d) and 133). The joint committee’s discussion and the evaluation
must be incorporated into the joint committee’s meeting report (the meeting “minutes”),
which section 138 of the Act requires to be posted in the workplace.
3.1.2 WorkSafeBC Evaluation Tool
The PRRD is working with Regulatory Practices to provide an evaluation tool that can
be used by joint committees to comply with the proposed evaluation requirement under
the OHSR. The evaluation tool will be a practice document like the OHS Guidelines.
Use of the tool will not be mandatory; other tools can be used as long as they meet the
basic requirements of the OHSR.
The PRRD and Regulatory Practices reviewed various evaluation tools, including
evaluations provided by both employer and labour stakeholder groups, as a basis for
the evaluation tool. The preliminary draft is being revised in consultation with internal
and external subject matter experts. The PRRD and Regulatory Practices will schedule
further sessions with external stakeholders to obtain their suggestions and comments.
It is anticipated that a finalized evaluation tool will be available online when the
amendments to the OHSR become effective.
3.2
Minimum Training Requirements for New Joint Committee Members
Under section 135 of the Act, each member of a joint committee is entitled to 8 hours of
annual educational leave for the purposes of attending occupational health and safety
training courses. As noted, this educational leave is an entitlement; it is not mandatory
to take it.
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Recommendation #20 of the Lakeland Inquest recommended that WorkSafeBC
establish minimum mandatory training and education for joint committee members.
3.2.1 Other Jurisdictions
The PRRD reviewed how committee member training is addressed by the legislation in
other Canadian jurisdictions. In one jurisdiction, Alberta, there is no specific mention of
training for committee members. In four other jurisdictions, there is no mandatory
training but committee members are entitled to training. 3 Seven jurisdictions have some
form of mandatory committee training: 4
•
The Yukon requires employers to “orientate” committee co-chairs to their functions
and duties within 90 days. The legislation does not specify further what this
orientation must include.
•
In Saskatchewan, the Northwest Territories and Nunavut, the employer must ensure
that the committee co-chairs receive training respecting the duties and functions of
the committee. The legislation does not specify further what this training must
include.
•
In Newfoundland and Labrador, the employer must provide and pay for training for
the co-chairs of the committee if there are between 10 and 49 workers employed, or
for all the members of the committee if there are 50 or more workers employed. The
legislation requires the training to meet the requirements set by WorkplaceNL.
WorkplaceNL requires a 2-day (14-hour) certification training course that covers
WorkplaceNL’s curriculum and is delivered by a provider approved by WorkplaceNL.
It also requires the training to be renewed every three years.
•
New Brunswick and the federal Canada Labour Code require the employer to
ensure that all committee members receive training and list certain topics the
training must include. New Brunswick additionally requires the training to be at least
3 days and delivered by WorkSafeNB, or a person trained by WorkSafeNB to deliver
the program.
•
In Ontario, at least one worker member and one management member of the
committee must be certified by the Board through Board approved training. As of
March 1, 2016, there is new certification training, which requires the worker and
management member to complete a 2 part mandatory training session totalling at
least 5 days, and a 1-day refresher course every 3 years.
3
4
Quebec, Manitoba, Nova Scotia, and Prince Edward Island. Note that in Quebec, only those
committee members designated as safety representatives are entitled to this training.
Note that in some of these jurisdictions, committee members are entitled to additional non-mandatory
training.
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Note that the mandatory training in Ontario, Saskatchewan, the Northwest Territories,
Nunavut, and the Yukon is not required for all members of the joint committee.
3.2.2 Proposed Changes to the OHSR
The PRRD proposes the addition of section 3.27 to the OHSR to address
recommendation #20 of the Lakeland Inquest. Although the Coroner’s recommendation
was limited to joint committee members, as a result of feedback received at preconsultation, the PRRD proposes that worker health and safety representatives also be
included under this section.
The proposed section 3.27 of the OHSR requires that new joint committee members
and new worker health and safety representatives receive instruction and training, and
sets out the minimum requirements for that instruction and training.
It is important to note the minimum training required by proposed section 3.27 does not
form part of the annual educational leave granted by section 135 of the Act – new joint
committee members must receive the instruction and training required under section
3.27 of the OHSR, additionally, all joint committee members are entitled to 8 hours of
annual educational leave under section 135 of the Act.
Proposed section 3.27(1) requires that new joint committee members and new worker
representatives – those selected on or after January 1, 2017 – receive at least 8 hours
of instruction and training as soon as practicable but no more than 6 months after being
selected. Section 3.27(2) specifies the topics that the training must include. Section
3.27(3) creates an exception to these requirements for “boomerang” committee
members and worker representatives: the minimum training is not required for new
members or representatives if they used to be on a committee or were a representative
in the past and have already received the training, and it has been two years or less
since they left the committee or stopped being a representative.
As noted, the mandatory training under proposed section 3.27 must cover certain
topics. The topics set out are the minimum requirements; the instruction and training
provided to new committee members and worker representatives may go beyond the
topics listed. The topics listed were chosen by the PRRD in consultation with an
internal WorkSafeBC working group that included WorkSafeBC officers. These topics
are specific to the duties and functions of a joint health and safety committee or worker
representative, as opposed to general safety training. General safety training is
addressed in section 115(2) of the Act, which requires employers to ensure that their
workers are made aware of likely hazards and their rights and duties under Part 3 of the
Act and the OHSR, and more specifically requires employers to provide their workers
with the information, instruction, training and supervision necessary to ensure worker
health and safety.
The PRRD met with internal subject matter experts who advised that in order to cover
all of the topics outlined in section 3.27, a minimum of 8 hours is required. At the preconsultation session, those representing labour were generally in favour of an 8 hour
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requirement while employer representatives generally opposed the 8 hour time frame.
Although employer stakeholders generally agreed with the topics of the required
instruction and training, they generally preferred no set time limits in recognition that in
some instances, necessary training could be done in less time.
3.2.3 WorkSafeBC Training Resources
At present, there are free training materials available on worksafebc.com, which are
intended to be used for the education and training of joint committee members. All of
these materials can be downloaded, printed, and used by employers to train their joint
committee members.
The Certification Services department in Regulatory Practices confirmed that the current
training materials could be revised to meet the requirements under proposed section
3.27 by the effective date of the changes to the OHSR.
3.3
Participation by employer representative and worker representative in
employer incident investigations
Division 10 of the Act deals with accident reporting and employer incident
investigations. The Act requires an employer to conduct a preliminary investigation
under section 175, and a full investigation under section 176, in respect of certain
incidents listed in section 173. Section 174(1) specifies that these investigations “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”.
Note that the employer investigations at issue under sections 173 to 176 are distinct
from WorkSafeBC investigations; WorkSafeBC inspections and investigations are
covered under Division 11 of the Act.
Recommendation #9 of the Lakeland Inquest recommended that the provincial
government “clarify the meaning of the term ‘participation’ in s. 174 of the Act to ensure
full and meaningful participation in the investigative process by both the employer and
the worker representative.”
In response to this recommendation, section 7 of Bill 35 added a new subsection to
section 174, subsection 174(1.1), which states:
(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;
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(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.
3.3.1 Other Jurisdictions
The PRRD reviewed how this issue is addressed in other Canadian jurisdictions. In five
other Canadian jurisdictions, the duties and functions of the committee include
“participat[ing]” in the employer’s incident investigations, but their legislation does not
specify further what that means. 5
In one of those jurisdictions, serious injuries and serious accidents are normally
investigated by a Board officer but if the serious incident did not result in death, the
officer may authorize a worker representative from the committee to conduct the
investigation on the officer’s behalf. 6
In two jurisdictions, it appears that – in addition to the employer’s separate investigatory
and reporting obligations – the committees can conduct their own inspections or
inquiries and prepare their own reports or recommendations. 7
In another jurisdiction, the incident is investigated jointly by the employer and the
committee. 8 In two jurisdictions, the incident is investigated by the co-chairs of the
committee or their designates. 9
3.3.2 Proposed Changes to the OHSR
The proposed section 3.28 of the OHSR addresses the new section 174(1.1)(c) of the
Act, by providing additional activities of what is included in “participation” by worker and
employer representatives in employer preliminary and full investigations.
In addition to those items listed in section 174(1.1) of the Act – viewing the scene of the
incident with the persons carrying out the investigation and providing advice to the
persons carrying out the investigation – the proposed section 3.28 states that
participation by worker and employer representatives also includes:
(a) assisting the persons carrying out the investigation with gathering information
relating to the investigation;
5
6
7
8
9
Canada (Federal), Nova Scotia, New Brunswick, Prince Edward Island, and Yukon.
Yukon.
Ontario and Quebec.
Northwest Territories.
Saskatchewan and Manitoba.
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(b) assisting the persons carrying out the investigation with analyzing the
information gathered; and
(c) assisting the persons carrying out the investigation with identifying any
corrective actions necessary to prevent recurrence of similar incidents.
The items listed were chosen by the PRRD based on a review of non-mandatory
standards, guides and handbooks for incident investigations, and in consultation with
internal WorkSafeBC subject matter experts and external stakeholders. Items (b) and
(c) were chosen by the PRRD because several of the incident investigation resources
reviewed suggested that committee or worker representative involvement was most
important in the analysis and development of corrective action stages of incident
investigation. 10 Item (a) was added based on WorkSafeBC officers’ and labour
stakeholders’ views that involvement in the information gathering stage was also critical.
It is important to note that section 174(1.1) of the Act and proposed section 3.28 of the
OHSR do not exhaustively define the meaning of “participation” for the purpose of
employer and worker representative participation in employer incident investigations.
These sections only set out some of the activities that “participation” includes; the
meaning of that term is not limited to the listed activities. 11
The PRRD will be working with Regulatory Practices to assist them in developing a
guideline that can more fully explain what participation means and how full participation
in employer incident investigations plays an important part in workplace health and
safety.
4.
CONSULTATION
WorkSafeBC is holding public consultation on the proposed OHSR amendments from
April to June 3, 2016. During the consultation period, members of the public can
provide written feedback in any of the ways set out below.
As a result of the feedback received from this public consultation, the PRRD may revise
the proposed OHSR amendments. There will then be another opportunity for
stakeholders to provide feedback on the proposed amendments at public hearings held
in several locations in the province. WorkSafeBC anticipates that the public hearings
for these amendments will take place in the fall of 2016.
10
11
For example, Investigating accidents and incidents: A workbook for employers, unions, safety
representatives and safety professionals (UK Health and Safety Executive, HSG245 2004); CSA
Standard CAN/CSA Z796-98 Accident Information; Investigation of Accidents and Incidents –
Reference Guide and Workbook (Interim Guide, August 1-December 31, 2015) (WorkSafeBC); Draft
Safety and Health Program Management Guidelines (OSHA, Nov 2015 draft); CSA Standard
CAN/CSA Z1000-14 Occupational Health and Safety Management.
Section 174(1.1) states “… the participation of the employer or a representative of the employer and a
worker representative includes, but is not limited to, the following activities: …” (emphasis added).
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For this consultation, you may provide your feedback by 4:30 PM, Friday, June 3,
2016, in any of the following ways:
Online:
Online Feedback
Email:
[email protected]
Fax:
604-279-7599 or toll-free in BC 1-877-279-7599
Mail:
Joint Committee Changes
Policy, Regulation and Research Division
WorkSafeBC
PO Box 5350, Station Terminal
Vancouver, BC V6B 5L5
If you are not using the online feedback form, please include the following
information:
•
Name of submitter(s)
•
Whether you are submitting on your own behalf or on behalf of an
organization (if for an organization, please provide the name)
•
Whether you are commenting as a worker, an employer, or from another
perspective
•
Your level of support for the proposed changes to the policy – whether
you generally: agree, disagree or are neutral
•
The reasons for your level of support
WorkSafeBC will send you an acknowledgement of receipt of your submission.
Your feedback will be carefully considered and analyzed, and provided to
WorkSafeBC’s Board of Directors as part of their decision making process.
WorkSafeBC will not contact you regarding your submission unless clarification is
needed.
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Disclosure of Personal Information
Anonymous submissions will not be considered. Submissions received by WorkSafeBC
during the consultation process may be disclosed in accordance with the Freedom of
Information and Protection of Privacy Act or by law generally.
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APPENDIX A
DRAFT REGULATION
Joint Health and Safety Committees
Evaluation of joint committees
3.26
(1)
(2)
(3)
In this section, a reference to a joint committee does not
include a joint committee established and maintained under
section 126 of the Act, if
(a)
an order under section 126 (1) of the Act respecting
the joint committee provides for a variation as set out
in subsection (2) (b) of that section of the Act, and
(b)
the variation is in regards to evaluating the joint
committee.
An employer must ensure that, with respect to each of the
employer's joint committees, a written evaluation is
conducted annually by
(a)
the employer or a person retained by the employer, or
(b)
the co-chairs of the joint committee or, with respect to
each co-chair, the member or members of the joint
committee designated by the co-chair.
The evaluation must contain, but is not limited to, the
following information:
(a)
whether or not, throughout the period of time that is
the subject of the evaluation,
(i)
the joint committee met the membership
requirements under section 127 (a) to (d) of the
Act,
(ii)
the selection of worker representatives on the
joint committee were made in accordance with
section 128 of the Act,
(iii)
the selection of employer representatives on
the joint committee were made in accordance
with section 129 of the Act,
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APPENDIX A
DRAFT REGULATION
Joint Health and Safety Committees
(iv)
the joint committee fulfilled each of its duties
and functions under section 130 of the Act,
(v)
the employer met the requirements under
section 133 of the Act in respect of the written
recommendations sent to the employer by the
joint committee with a written request for a
response from the employer, if any,
(vi)
each member of the joint committee received
the time off from work the member was entitled
to receive under section 134 of the Act,
(vii)
each member of the joint committee attended
the occupational health and training courses
the member was entitled to attend under
section 135 of the Act,
(viii)
the employer provided to the joint committee
the equipment, premises, clerical personnel
and information the employer was required to
provide under section 136 of the Act,
(ix)
the joint committee prepared reports of its
meetings and provided copies to the employer
as required under section 137 (1) of the Act,
(x)
the employer met the requirements of posting
and keeping posted, at each workplace where
the employer's workers are regularly employed,
information as set out in section 138 (a) and
(b), and
(xi)
each member of the joint committee received
the instruction and training the employer was
required to ensure was provided to the member
under section 3.27 of this regulation;
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APPENDIX A
DRAFT REGULATION
Joint Health and Safety Committees
(b)
an assessment of the effectiveness of the joint
committee's rules of procedures established under
section 131 of the Act;
(c)
an assessment of the overall effectiveness of the joint
committee.
(4)
The employer, or person retained by the employer, who
conducts the evaluation must, as part of the evaluation,
obtain and consider the input of the co-chairs of the joint
committee or, with respect to each co-chair, the member or
members of the joint committee designated by the co-chair,
on the matters listed in subsection (3).
(5)
The employer and the joint committee must each provide to
the other a copy of the evaluation if the other does not have a
copy.
(6)
The joint committee must
(a)
(b)
discuss the evaluation at the meeting of the joint
committee immediately following
(i)
receipt of the evaluation, if the employer or a
person retained by the employer conducts the
evaluation, or
(ii)
the completion of the evaluation, if members of
the joint committee conduct the evaluation, and
ensure that the evaluation and a summary of the
discussion referred to in paragraph (a) are included in
the report of that meeting.
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APPENDIX A
DRAFT REGULATION
Joint Health and Safety Committees
Minimum training requirements for new joint committee members or worker health
and safety representatives
3.27
(1)
(2)
In this section, a reference to a joint committee does not
include a joint committee established and maintained under
section 126 of the Act, if
(a)
an order under section 126 (1) of the Act respecting
the joint committee provides for a variation as set out
in subsection (2) (b) of that section of the Act, and
(b)
the variation is in regards to providing instruction and
training to the members of the joint committee.
The employer must ensure that,
(a)
each member of the employer's joint committees, or
(b)
if the employer has no joint committees, each of the
worker health and safety representatives at the
workplace,
who was selected on or after January 1, 2017, receives, as soon as
practicable but no more than 6 months after becoming a member or
representative, as applicable, a total of at least 8 hours of instruction
and training, as set out in subsection (3).
(3)
The instruction and training referred to in subsection (2) must
include,
(a)
if the instruction and training is provided to a member
of a joint committee, the following topics:
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APPENDIX A
DRAFT REGULATION
Joint Health and Safety Committees
(b)
(4)
(i)
the duties and functions of a joint committee
under section 130 of the Act;
(ii)
the rules of procedure of the joint committee as
established under or set out in section 131 of
the Act;
(iii)
the requirements respecting investigations
under sections 173 to 176 of the Act;
(iv)
the requirements respecting inspections under
sections 3.5, 3.7 and 3.8 of this regulation and
how to make regular inspections under section
3.5 of this regulation;
(v)
the requirements respecting refusal of unsafe
work under section 3.12 of this regulation;
(vi)
the requirements respecting the evaluation of
joint committees under section 3.26 of this
regulation, and
if the instruction and training is provided to a worker
health and safety representative, the topics described
in paragraph (a) (i), (iii), (iv) and (v).
Subsection (2) does not apply in respect of a person who is a
member of a joint committee or a worker health and safety
representative if
(a)
2 years or less before becoming
(i)
a member of the joint committee, the person
was a member of that joint committee or a
different joint committee, or
(ii)
a worker health and safety representative, the
person was a worker health and safety
representative at that workplace or a different
workplace, and
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APPENDIX A
DRAFT REGULATION
Joint Health and Safety Committees
(b)
the person has received the instruction and training
described in subsection (3), as applicable.
(5)
The employer must keep records of all instruction and
training provided under this section.
(6)
For greater certainty, the instruction and training required
under subsection (2) of this regulation is not educational
leave as set out in section 135 of the Act.
Participation in Investigations
Participation by employer or representative of employer and worker representative
3.28
For the purposes of section 174 (1.1) (c) of the Act, the following
activities are prescribed:
(a)
assisting the persons carrying out the investigation with
gathering information relating to the investigation;
(b)
assisting the persons carrying out the investigation with
analyzing the information gathered during the investigation;
(c)
assisting the persons carrying out the investigation with
identifying any corrective actions necessary to prevent
recurrence of similar incidents.
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