The Public Service Alliance of Canada (PSAC) is the largest federal public sector union, representing more than 180,000 people from coast to coast to coast. The majority of PSAC's members, approximately 110,000, work in the federal public sector.
Thank you for inviting the PSAC to present a submission to your Committee on the proposed changes to the Canada Labour Code contained in Part 3 of Division 5 of Bill C-4, the Economic Action Plan 2013 Act No 2.
Our members provide public services to Canadians in such areas as border security, food safety, national defence, wildlife management, the Coast Guard, tax services and corrections to name just a few.
Given the breadth of the work that our members do it should come as no surprise that our members routinely face danger in the workplace. Work that puts our members at risk includes:
park wardens in the back country intercepting poachers who have high powered rifles,
Border Services Officers who, aside from the dangers of border patrol, appear to have elevated rates of breast cancer related to motor vehicles idling at our border crossings,
parole officers who are stalked by dangerous offenders,
marine inspectors who work in confined spaces,
Statistics Canada interviewers who work alone and face violence in the course of home visits to collect data,
food inspectors exposed to a wide variety of potentially dangerous pathogens and organisms and pesticides, and workers working with dangerous machinery.
In this regard we remember Peter Kennedy, a boiler operator and PSAC member who lost his life four years ago in a boiler explosion at the Cliff Plant about a kilometer from where this Committee sits. Mr. Kennedy is only one of several PSAC members who have been seriously injured or died on the job.
There are over 1.5 million workers covered by federal legislation.
Part II of the Canada Labour Code provides health and safety protections for federally regulated workers and outlines the rights and responsibilities of workers and employers alike.
It does so through the internal responsibility system, the corner stone of modern health and safety protections since the 1970s. To quote an Ontario Workplace Safety and Insurance Board fact sheet in 2003:
"The Internal Responsibility System is a health and safety philosophy. It is based on the principle that every individual in the workplace is responsible for health and safety. This includes the CEO, executives, management and the workers."
Embedded in the system are the 3Rs: the right to know about hazards at work, the right to refuse dangerous work and the right to participate in workplace health and safety. This system is considered functional only to the extent that workers are properly trained and actively engaged in making workplaces safer.
The Internal Responsibility System does not work without reliable government enforcement of health and safety provisions. The authority of health and safety officers to monitor workplaces and issue directions and prosecute workplace violations helps to ensure that employers take their responsibilities seriously and don’t cut corners that will inadvertently harm their workers. In short, without a strong external responsibility system, the effectiveness of the internal responsibility system cannot be assumed. The two are inextricably linked.
Our concern about Bill C-4 is that it fundamentally weakens these constituent elements. Taken together the changes outlined in Bill C-4 are not consistent with enhancing workplace protections and will roll the dice with the health and safety of our federal workers.
Currently, the work refusal works in the following way: a worker reports to the employer regarding refusal, and the employer either takes immediate action to protect employees or the matter is not resolved and the refusal continues. After this, the employer investigates the matter in the presence of the worker and an employee member of the health and safety committee.
If the employer disputes that the matter is a danger, the employee can continue to refuse, and a health and safety officer must be notified immediately. The health and safety officer investigates the matter in the presence of all parties, decides if a danger exists, and provides written notification of the decision to the worker and the employer.
If the health and safety officer decides that danger does not exist, the worker has a statutory right of appeal to the Occupational Health and Safety Tribunal Canada.
Under the provisions of Bill C-4, when a worker reports to the employer regarding a refusal to work, the employer investigates the matter in the presence of the worker, and prepares a written report. One of two things can happen: either the employer takes immediate action to protect employees, or the matter is not resolved and the refusal continues, and the refusal is reported to the health and safety committee. The committee members who investigate the matter provide a written report to the employer.
If the employer disputes that the matter is a danger, the Minister must be notified immediately. The Minister will decide if the matter will be investigated. If there is an investigation, the Minister can choose whether to investigate the matter in the presence of the employer, the worker and a worker member of the health and safety committee. The Minister, on completion of the investigation, decides if there is a danger and notifies the parties of the decision.
If the Minister decides not to investigate further, the worker has no statutory right of appeal.
At the outset it is worth noting that none of these changes were the product of collaboration or even consultation. The changes proposed in C-4 alter health and safety protections that have only recently been put in place - in the year 2000. That is a relatively short amount of time in the life of a piece of legislation. The 2000 changes to the Canada Labour Code changes were reached after extensive consultation with labour, employers and government and were themselves, a microcosm of what can be achieved through a tripartite system of collaboration.
In contrast, neither workers nor employers were consulted about the proposed changes set forth in Bill C-4. Neither, to our knowledge, were federal health and safety officers. The Regulatory Review Committee – a tripartite body that addresses emerging health and safety concerns in the federal sector – has received no complaints about the administration of the Code. Nor has the Minister’s Advisory Committee or the Labour Operations Practice Committee. The point is that there are established forums to receive and address health and safety policy concerns and none of these have heard of problems that necessitate these kinds of wholesale changes. That fact alone should prompt this Committee to regard these amendments with skepticism. We will now address our specific concerns.
The amended definition of "danger"
Our concern is that the amended definition of "danger" will result in a much narrower interpretation of what is considered to be a workplace danger.
The existing definition of "danger" is:
“danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system;
That definition has been eliminated and the amended definition set forth in Subsection 176.(1) reads as follows:
“danger” means any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered;
While the proposed definition appears to be broadly worded, and broadly worded enough to encompass the existing definition, our concern is that it will not be broadly interpreted. We say this for the following reasons.
It is a fundamental precept of statutory interpretation that an amendment is considered to do just that: amend the existing law. It is assumed that the intention of the legislature when it changes the wording of a law is to change its original meaning. In fact, it would be nonsensical to amend a law and expect that it will not effect a change.
Moreover, the Territorial Court of Nunavut, looking at a case of psychological harassment in the workplace, decided that if “danger” was intended to include psychological harassment, the Legislature would have explicitly included it in the definition of danger. The Court reached this determination after reviewing the legislative history of the statute that defined danger. 1 When this typically cautious approach to interpreting the definition of “danger” is applied, our concern is that the new vaguely-worded definition will not be interpreted in an expansive way but rather in a narrow fashion.
In the last thirteen years valuable jurisprudence interpreting the definition of “danger” has evolved. This jurisprudence, including judgments from the Federal Court of Appeal, provides valuable guidance to all stakeholders about what constitutes danger in the workplace. This jurisprudence will have no value if the definition of danger is fundamentally altered; the workplace parties will have to start all over again to assess and challenge what danger means. This is not a practical use of resources for any of the parties and health and safety will hang in the balance while the new definition is being tested.
We should also point out that we have previous experience with the term "imminent". It has been interpreted to mean "almost immediate" and it was abandoned by the Parliament of Canada during the amendments of 2000 because such a restriction was seen to be incompatible with the importance for workers to raise concerns about unsafe working conditions well in advance of being put in harm's way.
Our concern is that this change will expose workers to deadly harm. Here is an example. In 1999, park wardens who were concerned about their obligation to arrest and detain people, including those who were heavily armed, were told by a health and safety officer, that in order to exercise their right to refuse dangerous work under a definition of danger that is limited to "imminent" threats, the bullets would have to be whizzing over their heads for the danger to be deemed "imminent". This Committee should not take us back to such untenable and obviously flawed protections for federally regulated workers.
Nor should we have to establish through expensive litigation workplace protections that have already been established and that assist workers to understand the hazards in the workplace. This is one of three Rs - the right to know - and our concern is that this important right to know about dangers in the workplace will be obscured by the vague and frankly unhelpful definition of "danger" set forth in Bill C-4.
Gone is the recognition that the outcome of exposure to a hazard might not occur immediately; gone too is the explicit language which recognizes that a worker's reproductive system is worth protecting from potential threats.
One must ask: What mischief is this definition intended to cure? What was amiss in the current definition that needed to be fixed? And why was it done without consultation? In short, our concern is that the proposed definition of danger will be used to shield from scrutiny specific and legitimate areas of potential danger.
The Minister's refusal to investigate
A new section has been added to the Code which is outlined in Subsection 182(1), one that permits the Minister to foreclose further investigation of a work refusal, where the Minister deems a work refusal to be trivial, frivolous, vexatious or in bad faith.
Our concerns about this provision are three-fold.
It makes a refusing employee potentially vulnerable to discipline.
The proposed change permitting the Minister to classify a refusal to work as "trivial, vexatious or in bad faith" would potentially enable an employer to discipline workers who fear for their health and safety without an impartial investigation first occurring. This fear of reprisal will undoubtedly deter refusals to work and endanger workers. How many employees, when faced with the prospect of discipline or potentially unsafe work, will be brave enough to refuse unsafe work?
There is no statutory right of appeal from the Minister's decision.
The decision by the Minister to deem a work refusal not worthy of investigation will choke off every avenue to appeal this decision. All that will be left is judicial review and that provides a narrow scope of review by the Court. Judicial review by its nature is deferential to the first level decision maker - in this case the Minister or her delegate. Decisions of this nature are determined by factual findings; a reviewing court is typically reluctant to overturn decisions based on findings of fact. As such, the right to refuse dangerous work is effectively undermined by this new exercise of discretion.
Currently, once a refusal to work has escalated through the internal workplace channels to a health and safety officer, that officer is obliged to investigate and provide a decision - a decision that can be appealed by either party. Should an officer rule that no danger exists an employer is within their right to impose discipline if the employee continues to refuse.
The internal responsibility system presumes that all parties have an interest in health and safety and that consultation and collaboration by workplace health and safety committees are proven mechanisms to address ongoing workplace concerns.
This provision in Bill C-4 eliminates any impetus for an employer to meaningfully consult and collaborate on workplace issues.
The employer - remember again that the biggest employer subject to this law is the government - need only refer such matters to the Minister of Labour who can silence all health and safety concerns with a determination that the concern is a trivial one.
“No danger” does not mean there is no problem
We have heard it said that these measures were prompted by the fact that 80% of all work refusals and appeals result in decisions of "no danger" and that that statistic somehow implies that the current definition of danger is bloated and needs to be excised.
It cannot be assumed that decisions of “no danger” mean an employer has been found in noncompliance. Indeed, we are personally aware of cases in which decisions of "no danger" were also accompanied by directions written to employers or assurances of voluntary compliance (AVCs) requested.
In the last two years, over 5,000 AVCs have been issued per year. The link between AVCs and decisions of “no danger” is the meaningful statistic for this committee to consider. We have asked for this data but the Labour Programs of HRSDC has refused to provide this information to us. Suffice it to say that a decision of no danger does not equate with a failure of the system.
We ask again: what was the mischief that needed to be fixed by such draconian measures?
Repeal of health and safety officers
Subsection 176(1) also repeals all references to "health and safety officers to be replaced by "the Minister". Elsewhere Section 190 makes clear that the Minister can delegate her powers to anyone she deems qualified.
The neutral, trained, specialized inspectorate of health and safety enforcement personnel currently in place can be ousted by these provisions and replaced with ad hoc private entrepreneurs, dependent on the government for their next contract. The authority of health and safety officers to monitor workplaces and issue directions helps to ensure that employers take their responsibilities seriously and don’t cut corners that could inadvertently harm their workers. It is a formidable responsibility and it is too important to be left to private entrepreneurs who will be reluctant to issue a direction against the entity that is funding them.
This provision in Bill C-4 opens the door to the politicization of the important role of monitoring and enforcement and one cannot avoid noticing that the largest employer to be subject to inspections is the government itself.
There is strong evidence that only actual citations and penalties reduce the frequency or severity of injuries in the workplace.2 This is a sober reality and it is made more sober by the fact that in the last several years, the ratio of employees to federal inspectors has increased dramatically: in 2005, the ratio of employees to federal inspectors was 6607:1. In 2007, it was 8057:1.3 Since that time, there have been steady and significant reductions in the number of health and safety officers.
It should be no surprise to anyone that this reduction in inspectorate resources has been accompanied by an increase in the disabling injury rate of federal employees. The disabling injury rate of federal employees has increased by 5% in the last five years.
We take the position that this provision puts the Minister of Labour in a conflict of interest where she will be subject to accusations of biased decision making in favour of Cabinet colleagues and against workers.
Nothing good for health and safety can come of this proposal.
Section 212 of Bill C-4 provides that the Minister can administer or enforce electronically the provisions of the Canada Labour Code. Before we discuss our specific concerns with this section, let us remember the context in which these changes are being made: we have steadily lost health and safety officers across the country, at a higher rate in some areas, and there is no hope of replacing them. These officers are saddled with huge new administrative burdens, pressures from management to do the work from their desks to save travel dollars, and an increased demand for intervention.
The government owes a duty of care to all workplace parties who fall under its mandate and the Canadian public to ensure that when a health and safety officer is investigating a fatality, that officer will attend the workplace.
How could an officer practically investigate a safety complaint without meeting with the parties in the workplace to assess the circumstances? What data confirms that replacing a visual inspection with a virtual inspection will not lead to an increase in injuries or death on the job?
Over 45 workers in federal jurisdiction have died on average each year over the last 10 years. Do these amendments address this reality? The standard should be the same as in medicine where a doctor must ensure that the intervention will do no harm. We would like the Minister of Labour to provide that assurance.
There are no parameters or explanation around what these proposed amendments mean in the regulatory landscape of health and safety. In the absence of any consultation, we are left to anticipate that the worst possible outcome of this amendment could mean - in real terms - that a "delegated" health and safety officer may never enter a workplace again, and that their duties may fully, completely and within the law, be performed from a desk.
Frankly, we have higher expectations than that, so do our members and so does the Canadian public.
These changes, ostensibly made in the name of improving the internal responsibility system, ignore the necessity of a strong external responsibility system including a regulatory regime, with capacity, to proactively ensure compliance by having neutral enforcement officers physically present in workplaces working with the workplace parties.
We ask that the changes to the Canada Labour Code in Part 3 of Division 5 of the Economic Action Plan 2013 Act No. 2 be withdrawn from Bill C-4.
Any proposed changes to the Canada Labour Code should be the subject of tri-partite consultation prior to the introduction of legislation.
1 Government of Nunavut as represented by the Minister of the Environment v. the Worker’s Safety and Compensation Commission and Debbie Jenkins, July 16, 2013, unreported.
2 Tompa, E., S. Trevithick and C. McLeod. “Systematic review of the prevention incentives of insurance and regulatory mechanisms for occupational health and safety” Scand J Work Environ Health 2007; 33(2): 85-95.
3 Macdonald, D. Canadian Centre for Policy Alternatives, ”Success is No Accident: Declining Workplace Safety Among Federal Jurisdiction Employers” April 2010.