Union Submission on RAIL SAFETY to The Rail Safety Act Review Advisory Panel

Union Submission on RAIL SAFETY to The Rail Safety Act Review Advisory Panel

CAW INTRODUCTION: The CAW-Canada welcomes the opportunity to provide the Rail Safety Act Review Panel with its comments concerning a review of the Rail Safety Act. The CAW is Canada s largest private sector union, representing over 260,000 members in more than 2,100 workplaces across the country. We have experience with federal, as well as provincial Railways. Some 30,000 federal sector workers are represented by the CAW. This includes about 11,000 rail workers. Most work for the large private sector employers like CN Rail and CP Rail. Others work for VIA Rail and yet others work for smaller railway enterprises such as the ONR, TransCanada Switching (Omnitrax), Great Canadian Rail Tours (Rocky Mountain Vacations), which are all federal enterprises. A small number of our members work on Provincial Railways. The CAW Rail Division includes the former Brotherhood of Railway Carmen of Canada (BRCC), the former Shopcraft Council, (CCRSU) and the former Canadian Brotherhood of Railway, Transport and General Workers. (CBRT&GW) The duties of the approximate 11, 000 CAW Rail workers include: Repairing and Maintaining Locomotive and Freight Equipment; Servicing Passengers; building Locomotive Consists; Crew Calling; Customer Services; operating Locomotives and performing Conductor s duties on Trains on smaller Railways. In the view of the CAW, this makes us more than qualified to speak with authority in regard to Rail Safety. Presentation to Railway Safety Act Review Panel May 15, 2007 2

CAW DEALINGS WITH THE TRANSPORT CANADA AND THE RAILWAYS: Since the inception of the Rail Safety Act in the late 1980s, the Railways have been applying to the Transport Canada Rail Directorate on a constant basis to ratchet down the Locomotive and Freight/Passenger Car Safety and Air Brake Rules and throughout that time the former Brotherhood of Railway Carmen of Canada, now part of the CAW Rail Division, has been a odds with the changes the Railways have been requesting and for the most part being granted. It is only recently, since a change in Leadership in the Transport Canada Rail Safety Directorate, we see Transport Canada pushing back on the frequent and constant applications of the Railways and their Association/Lobby Group, the Railway Association of Canada (RAC). In the past the Railways and/or the RAC were usually granted any application for the diminishment of safety Rules. The CAW has been warning the Transport Canada Rail Directorate over the years that because of the wholesale ratcheting down of Rail Safety Rules of the past years it was inevitable that the rate of derailments would increase to such an extent that it would begin to damage the environment and eventually would compromise the safety of the public. The CAW has on many occasions, in the past, accused the Leadership of the Rail Safety Directorate of being just a rubber stamp to legitimize the Railway s efforts in the eliminate any safety regulation which, in the Railway s perception, impeded the their bottom line. The constant applications by the Railways over the last 15 years, requesting and receiving the diminishment of a great number of Safety wear limits and standards has brought us to where we are today, with the CAW now making a presentation to this Rail Safety Act Review Panel on the very subjects we have been trying to get the Transport Canada s attention on since the inception of the Railway Safety Act. The CAW has had disputes with certain Federal Rail Directorate Officers, who unequivocally supported the Railways in violations of safety inspection rules. ie: Backing Rings. Presentation to Railway Safety Act Review Panel May 15, 2007 3

SYSTEMIC PROBLEMS WHICH NEGATIVELY IMPACT RAIL SAFETY: Railways writing their own Rules: The idea of allowing the Railways to write their own Rules can be likened to allowing the Fox to guard the Hen House. There are obvious inherent negatives in this approach to the writing of Safety Rules. Any Company, given this opportunity, would, more likely than not, take full advantage and write Rules not only to satisfy Safety concerns but also, and as equally important to their shareholders, their bottom line. In the CAW s view, this concept for achieving Rail Safety runs completely contrary to common sense. Presentation to Railway Safety Act Review Panel May 15, 2007 4

Consultation Process: The whole process of consultation as outlined in Section 19 & 20 of the Rail Safety Act is completely ineffective. Sections 19 & 20 of the Act requires the Railways to consult with the stakeholders and give said stakeholder 60 days to respond to such consultation. This is nothing more than a process which requires the Railways to wait the 60 days, attach any documentation from a stakeholder to their application, and file. The idea that the Railways would take into consideration the views of any Stakeholders after spending a significant amount of their time honing Rules so they just meet the standards required by the Transport Canada Rail Directorate is ludicrous. It simply isn t going to happen. There should be a total revising of the Consultative process under the Act with an emphasis placed on meaningful submission, dialogue and more direct discussion between the Stakeholders and the Regulator. There should be direct meetings between the Regulator, the Rail Unions and Railways, where open and frank discussions on specific Rail Safety concerns and issues could be put on the Table and addressed in an open and honest circumstance. There would need to be a Legislative guarantee, of no retribution against employees whose evidence is used to verify and quantify Safety concerns and issues, for this type of meeting to be successful. The CAW has challenged the Railways, through the RAC, and the Rail Directorate to hold such a meeting. To date we have not received a response. We await a reply. Presentation to Railway Safety Act Review Panel May 15, 2007 5

Authority of the Transport Canada Rail Directorate: It has been the experience of the CAW that the Transport Canada Rail Directorate only has influence in regard to the Regional Transport Canada Offices across Canada. We have at least once received, what appeared to be contrary directives form two separate Safety Officers. The issue concerned the Inspection of trains from moving Vehicles. One Regional Safety Officer ordered walking inspections, while another Safety Officer suggested that inspections from a vehicle did not violate the Regulations. The first order was made to do walking inspections on June 11, 2002 that order was altered on June 14, 2002, allowing for inspections from vehicles. We have had different opinions on Rail Safety matters conveyed to us from the Transport Canada Rail Directorate Office than those we have received from a Regional Safety Office. This, in our opinion, is completely untenable. The Rail Directorate should have authority over the Transport Canada Regional Offices with respect to Rail Safety matters. Stakeholders should be able to expect a consistent answer when approaching any Regional Transport Canada Regional Safety Office as they would get from the Rail Directorate in Ottawa. The Rail Directorate must have charge over the Regional Offices of Transport Canada with respect to Rail Safety matters and decisions. Issuance of Directives and/or Orders: Copies of directives and/or orders issued nationally and/or regionally across the Country are not made available to the Labour Organizations or other Stakeholders. There doesn t seem to be a specific body to approach to find what Directives and/or Orders have been issued, where they have been issued and why they were issued, hence the potential for contrary issuances from time to time. Presentation to Railway Safety Act Review Panel May 15, 2007 6

RSA REVIEW: COMMENTS ON KEY ISSUES: It is now our intent to respond to each question outlined in the Review Panel s Guidelines from the perspective of each of the three major Railways which in our view, will encompass any safety issues of the smaller Railways. 1. Efficiency and Effectiveness of the Railway Safety Act 1.1.1 Roles and responsibilities Q) Are the roles, responsibilities and authorities for railway safety in Canada clear? Is the current accountability structure appropriate? No. The roles, responsibilities and authorities for Railway Safety appear to lay with the employers. While the Governor in Council or the Minister may establish rules as per section (9) (OPERATION AND MAINTENANCE OF RAILWAY WORKS AND EQUIPMENT) many, if not all rules are submitted by the railways to the Minister for acceptance. On January 5 2006 Transport Canada released a Safety Audit conducted on CN Rail between August 22, and September 16, 2005. The findings of this Audit reiterated previous concerns raised by the Directorate. EQUIPMENT: high safety defect rate of CN Rails rolling stock (Locomotives and Freight Cars) It is apparent from the 2005 safety audit that the Directorate continues to have concerns about CN Rails safety record. Therefore, Transport Canada should be responsible and accountable for the safety of operations. Transport Canada should develop, establish and monitor compliance of all rules. Transport Canada should also set and enforce penalties for any infractions of rules or regulations. Roles, responsibilities, authority and accountability within the Act and Regulatory rules are not specific. For example, the rules identify a person in charge the only clarification we receive form Transport Canada and the Rail Companies are: a person the railway Presentation to Railway Safety Act Review Panel May 15, 2007 7

company places in charge. There are no clear criteria for qualifications, authority, responsibility, accountability, and training. This is simply absurd. It is common where our member, the person placed in charge by the employer will make a decision: For example a loaded bad order car cannot move to be unloaded, only for our member to be over ruled the employer s supervisor. If our member is given responsibility, is our member the person in charge or not. Or is our member the person in charge until the company does not like their decision, decisions our members make error on the side for of safety not profit? What accountably is there for supervisors who over rule qualified and certified tradespersons? Neither the act, nor regulations are clear in such matters. There is no literature of a worker-friendly nature which would explain what Transport Canada does, why the railway safety management system was established and what it is intended to accomplish. 1.1.2 Should any changes to these roles and responsibilities be considered to further improve railway safety in Canada? Transport Canada should develop, establish and monitor compliance of all rules. Transport Canada should also set and enforce penalties for any infractions of rules or regulations. We believe the Act and regulatory rules need updating with clear roles, responsibilities, authority and accountability for both Transport Canada, the Railway s and the Labour Organizations. We believe that Transport Canada s move a few years ago from enforcement to audit has failed and that a re-evaluation of both modes is needed. Presently our onboard members fall under a Letter of Understanding between Transport Canada and HRSDC which gives authority to Transport Canada with respect to our onboard members while on a train. Our onboard member s Health & Safety issues are more akin to HRSDC Rules and Regulations and Part II of the Canada Labour Code. Given our members H&S relationship with Part II of the Canada Labour Code, it is our Presentation to Railway Safety Act Review Panel May 15, 2007 8

view that the memorandum of understanding between Transport Canada and HRSDC to enforce the Canada Labour Code, Part II, should be clarified or terminated. 1.1.3 Are all the participants fulfilling their roles and responsibilities? Transport Canada is not fulfilling its responsibility to oversee railway safety as it does not have enough officers in the field to ensure adequate random inspections. Nor do they have sufficient power to see that Compliance directives are carried out. The Rail Directorate should have authority over the Transport Canada Regional Offices with respect to all Rail Safety matters. Roles and responsibilities are not clearly established for Transport Canada or the Railway Company. Transport Canada has layers from regional districts and safety officers with headquarters in Ottawa having little to no jurisdiction over these regions or the officer s activities. Each region varies regarding enforcement. It seems the relationship with the railway company s impact these enforcements. These safety officers rarely interact with workers or workers representatives. They do on all occasions interact with railway company supervisors. This could be because most of these Transport Canada Safety Officers generally come from the railway company supervisory ranks. The regional safety officers check on the trade s persons doing the work but do little if any follow-up on what these trade s persons has tagged as defective, for example, no follow-up or tracking of defects, even when defective railway equipment continues in service and has been brought to the attention of Transport Canada. Locomotives are seldom followed up regarding defect, repairs or compliance, Transport Canada instead relies on the railway companies to do the right thing. 1.1.3 VIA appears to be closest to reaching this goal 1.2 Safety Management Systems Presentation to Railway Safety Act Review Panel May 15, 2007 9

1.2.1 Has the formal framework for integrating safety into day-to-day railway operations SMS been put in place at all railway companies, and how is it working in practice? The 2005 Transport Canada Audit revealed that CN Rails Safety Management System was severely lacking in application and compliance. Almost all areas examined were deficient. This again supports the position that Transport Canada should establish rules and regulations and set and enforce penalties. We have documented requests for copies of what the Canadian Pacific Railway has filed with respect to the Safety Management System (SMS) with Transport Canada. Although Labour Organization involvement was to be a cornerstone of the SMS working, in spite of our repeated requests, the company will not provide us with a copy. We recently requested from Transport Canada a copy of the SMS Canadian Pacific filed and Transport Canada told us to file under the freedom of information act. The only part that the CAW has been involved with is the development of the risk assessment process. Regarding Risk Assessments: the company uses the information from these to assess the risk level and override or change rules they are presently governed by. (For example train inspection on the main line) So to answer 1.2.1, other than the risk assessment, only Transport Canada and the Railway companies know if it is working. 1.2.1 VIA has imposed a systematic approach on all branches of the company. VIA has mandated the involvement of its Labour Organizations and Employees. However, the inclusion of Labour should be formalized. 1.2.2 Are the roles, responsibilities and authorities for SMS clear of railway companies, of Transport Canada? of others who are part of the railway safety system? Presentation to Railway Safety Act Review Panel May 15, 2007 10

As above. The 2005 Transport Canada Audit revealed that CN Rails Safety Management System was severely lacking in application and compliance. Almost all areas examined were deficient. This again supports the position that Transport Canada should establish rules and regulations and set and enforce penalties. There are 2 ways to know this. 1) have a copy of what was filed 2) be part of developing the safety management system. The CAW does not have a copy nor has it been invited to participate. Very few workers know what the SMS is, it s purpose, and how it relates to them. It is the responsibility of the employer to make SMS known and work. 1.2.2 The role of CAW could be more formalized. 1.2.3 Is the current SMS approach to accountability working for the owners and employees of railway companies? for their customers (shippers and travelers)? for those who live near railway lines? for Canadians? As above. The 2005 Transport Canada Audit revealed that CN Rails Safety Management System was severely lacking in application and compliance. Almost all areas examined were deficient. This again supports the position that Transport Canada should establish rules and regulations and set and enforce penalties. The current SMS approach can work. The CAW sat on the working group to develop the original regulation. The railway company s must allow equal involvement and say to the Labour Organizations and Employees. This was the spirit of the SMS in the first place. Currently, the railway company files the SMS Report(s) without input from Labour. It is apparent the Railway wants to keep the SMS from being public or freely accessible. In that way they can control it effectiveness and accountability. Transport can only scratch the surface with their present audit system. There is very little, if any, accountability, under the present SMS process Presentation to Railway Safety Act Review Panel May 15, 2007 11

1.2.3 While much progress has been made, most employees have only a cursory awareness of its existence and what it means to them. It needs to be more prescriptive, more frequent and better understood by workers and their representatives. 1.2.4 Are safety goals and performance targets adequately defined? As above. The 2005 Transport Canada Audit revealed that CN Rails Safety Management System was severely lacking in application and compliance. Almost all areas examined were deficient. This again supports the position that Transport Canada should establish rules and regulations and set and enforce penalties. We believe they are more fixed on achieving targets rather than developing a safety culture. Discipline, or fear of same, has been, and continues to be, used to achieve safety targets. The safety culture cannot be developed, when blame and discipline are the principles of the day. Employees must know that they can report safety deficiencies without reprisal; employees must know they can report injuries and near misses without discipline. 1.2.4 There is difficulty to break down targets from the macro to the micro level, and to see the relationship between initiatives and targets. You don t just pick numbers from nowhere. 1.2.5 Should any aspects related to railway safety be spelled out more clearly that is, be more prescriptive? Is the balance between performance/ results-based and prescriptive regulation appropriate? Presentation to Railway Safety Act Review Panel May 15, 2007 12

As above. The 2005 Transport Canada Audit revealed that CN Rails Safety Management System was severely lacking in application and compliance. Almost all areas examined were deficient. This again supports the position that Transport Canada should establish rules and regulations and set and enforce penalties. The railway companies ability to continually request and be granted exemptions from the very rules and regulation they themselves make, shows the railway companies ability to manipulate Transport Canada and any regulation or rule they are required to follow, for example: We were at the meeting when Transport Canada rolled out the Locomotive Safety rules, rules the railway company s and the RAC developed and were authorized by Transport Canada. Most of the conversation during the roll-out meeting was how the railway companies could get around the very rules they had just written by using the process for exemption. Exemptions. When the caboose was removed from rear train service, pull by inspections at all crew change outs were required by Transport Canada. The railway companies filed for an exemption of this requirement. Transport Canada granted the Railway s requested exemption with various stipulations. These stipulations have been broken again and again. The CAW has presented documentation to the Railway Company and transport Canada verifying violations of the exemption. We have challenged the research the company provided to Transport in the application made for the exemption as being incomplete. Despite our challenge and our clear identified violations of this granted exemption, it has never been revoked. This exemption alone has allowed the Railway to lay off workers, the very workers who do the inspections of these very trains that cross this country. Providing exemptions to the very rules the railway companies write does not generally enhance safety in any form. In fact it diminishes the reason for requiring the rule in the first place. Railway safety should not be how much you can get away with or how to minimize the rules or how many you can get out of, it should be how much Rail Safety has been assured. The present Safety culture of the railways is geared toward maximizing profit not maximizing safety. The Act, regulations and rules need to be clear, prescriptive, audited and enforced. Presentation to Railway Safety Act Review Panel May 15, 2007 13

1.2.5 Yes. Safety Management System regulations should be prescriptive. 1.2.6 Has the implementation of SMS had the desired effect on the traditional regulatory framework? As above. The 2005 Transport Canada Audit revealed that CN Rails Safety Management System was severely lacking in application and compliance. Almost all areas examined were deficient. This again supports the position that Transport Canada should establish rules and regulations and set and enforce penalties. We have always believed that joint participation in the development and implementation of the SMS would only enhance safety in general and improve the safety culture. However, this is difficult to address since we have not been provide a copy of what the Railway Company has filed with respect to SMS. 1.2.6 It has increased awareness of the concept of managing and planning safety. 1.2.7 Is there a need to tailor SMS to a company s size and nature of operations? No, a properly run and monitored SMS should be applicable to all Companies, large or small. Safety should not be compromised or diminished because of a Company s size. We believe that the present regulation is written in such a way that any railway company, regardless of size, can comply. 1.2.7 Not if it increases Safety risks in doing so. 1.3 Monitoring, audit, inspection and enforcement 1.3.1 Does Transport Canada carry out its responsibility to monitor and inspect rail operations related to safety effectively? Presentation to Railway Safety Act Review Panel May 15, 2007 14

No, Transport Canada is not fulfilling its responsibility to oversee railway safety as it does not have enough officers in the field to ensure adequate random inspections. Nor do they have sufficient power to see that Compliance directives are carried out. Transport Canada Officers should randomly and unannounced inspect completed trains and Locomotives prior to departure from terminals to ensure that CN Rail is complying with the rules and trains are safe to travel. They are inconsistent from region to region. The regional safety inspectors inspect what the tradesperson have inspected and do no monitoring or following up on what happens with the equipment the inspectors have tagged as defective. Transport Canada safety officers are viewed by the workforce as being too close to the railway companies to be effective on rail safety. We do not believe they have the resources or manpower to effectively carry out their responsibility as regulator, auditor, and enforcer effectively. They are seldom seen on the property and rarely talk to the common worker. Items brought up to Transport are seldom ever followed up. 1.3.1 No, Transport Canada is for the most part doesn t have enough inspectors and/or auditors to do a thorough job it is intended to do. Also it takes the Railway s word over that of other interested parties. 1.3.2 Is auditing of rail operations related to safety carried out effectively? by Transport Canada? by railway companies? No, Transport Canada is not fulfilling its responsibility to oversee railway safety as it does not have enough officers in the field to ensure adequate random inspections. Nor do they have sufficient power to see that Compliance directives are carried out. Presentation to Railway Safety Act Review Panel May 15, 2007 15

Transport Canada Officers should randomly and unannounced inspect completed trains and Locomotives prior to departure from terminals to ensure that CN Rail is complying with the rules and trains are safe to travel. Transport Canada s Audits are very general and not in-depth or do not get to the bowls of railway safety. This however seems to be changing, as an example is the latest Audit on Canadian National. No such in-depth Audit was ever done on Canadian Pacific. Canadian Pacific has an internal audit process but little is done in follow-up of deficiencies that are found. Seldom have they achieved their own acceptable pass. These Audits are more of a feel good we are doing something process. There should be a regulated minimum standard regarding safety Audits. These regulations must mandate the fixing of deficiencies within an acceptable time limit with a significant consequence to the railway company for being below a regulated audit standard. 1.3.2 Transport Canada needs to come around more often to do their auditing. Internal auditing has not been done in the recent past. 1.3.3 Does Transport Canada respond effectively to non-compliance, and to threats to, and concerns with, safe railway operations? No, Transport Canada is not fulfilling its responsibility to oversee railway safety as it does not have enough officers in the field to ensure adequate random inspections. Nor do they have sufficient power to see that Compliance directives are carried out. Not in our opinion. They are slow to respond, and when they do respond, they are not clear what action, if any, they plan to make. It is viewed among the workers that Transport Canada responses don t generally say anything. If they do, they usually include responses Transport Canada has received from the railway company. The very railway company, we might add, that the CAW has presented evidence of non-compliance to safety rules, regulation etc Presentation to Railway Safety Act Review Panel May 15, 2007 16

It appears to us that Transport will rely on the railway company to provide the answer rather than investigate the complaint themselves. This is ether due to lack of manpower or their inability to investigate themselves. We believe Transport Canada to be under presently staffed for the responsibility they have. We would recommend staffing requirements be reviewed for this department and sufficient and qualified Officers be hired to ensure effectiveness. 1.3.3 Not as well as it could 1.3.4 Do the companies themselves provide for quality assurance and effective supervision of employees? effective monitoring and inspection of track and equipment? As outlined, it is apparent from the 2005 safety audit that the Directorate continues to have concerns about CN Rail s safety record. EQUIPMENT:- high safety defect rate of CN Rails rolling stock (Locomotives and Freight Cars) It is noted in Phase II of the Audit titled Evaluation of CN s Safety Management Practices, while Senior Management indicated a strong commitment to Safety there was a disconnect with front line Supervisors and employees. Employees feel pressured, under fear of discipline, to consistently increase productivity, even with ever increasing workloads, which could compromise safe rail operations. The fact that many CN Railway Workers in the Shopcraft Trades are reaching retirement age and that the Railways have not hired employees to replace these workers, is yet another pressure on productivity and safety. According to statistics, between 1991 and 1995 Canadian Railways cut approximately 15,000 jobs. Many of these were Shopcraft employees who inspect, repair and maintain Cars and Locomotives. According to CAW Local 100 Check-Off statistics, in 1995 there were 5,354 Shopcraft employees. In February 2007 there were 1807 Shopcraft employees. This is a staggering statistic considering the increase in the length, number of trains, weight and amount of Dangerous commodities these trains are allowed to carry. Presentation to Railway Safety Act Review Panel May 15, 2007 17

There are no quality assurances for railcars found defective, repaired or OKed back into service. Tradespersons who inspect the trains turn over the bad order defects found to a supervisor. Such supervisor, or another, re-inspects the identified bad order cars and removes the bad order tags if they feel those cars can continue in service. The remainders of the defective cars are then entered into the computer database for repair. The trades persons are unaware of which cars were OKed by the supervisor, and not entered into the computer database and which are entered for repair. This is at the complete control and discretion of the company. If any of the bad ordered cars are loads, the railway company, more often than not, continues such cars in service until unloaded then the cars are supposed to be repaired at the first repair facility. Although this is an acceptable practice according to the rules, we have brought repeated deficiencies in this practice to the attention of Transport Canada. Some cars continue in service, defective, until re-inspected and found defective again sometimes many months later, some as long as a year. These instances have never been found or examined in any Transport Canada Audit because the railway company records are not clear in regard to these instances. When incidents such as derailments happen, the company supervisors get what we refer to as Selective Memory, they don t remember removing the bad order status of the car and they do what ever they can to blame the workers for incident. 1.3.4 Since the Biggar accident, the culture at VIA has improved in this regard, there is a distance yet to go. 1.3.5 Is monitoring and inspection conducted using automated processes (technology) and/or directly by staff? is the balance right? CN Rail s standard response to the question of fewer employees has been the improved Wayside Detection Systems, (i.e. Dragging Equipment Detectors, Wheel Impact Detectors). It appears to the CAW that the modern technologies which the railways claim assist in the diminishment the derailments, in fact, haven t performed the job. The severity of derailments has actually increased. While these Wayside Detection systems should be added, they should augment employee Train and Locomotive Inspections, they should not take the place of employee Presentation to Railway Safety Act Review Panel May 15, 2007 18

inspections. Wayside Detection Systems are after the fact; trains have already left terminals and are moving at great speeds on route, if and when these systems detect a problem. We believe that the company s attempt to reduce train inspections using Technology as the reason, has been short sighted. We believe that the automated systems the company has put in place were meant to augment, not replace inspections performed by certified, qualified inspectors. The railway companies are in control of which trains get inspected, where and how often. Even though we believe some of the rules are clear, for example interchange, many cars and even trains will operate on one rail line to another or one country to another without ever being inspected. Wheel impact detectors, hotbox and dragging equipment detectors, hunting detectors are only effective, generally after equipment becomes defective. Qualified trades inspectors know when equipment is starting to be defective; for example, discoloring of wheels (no automated process can pick this up). Many defects are caused by a combination of deficiencies (no automated process can detect these) Trains are longer, air tests are less often in Canada (mandatory 1,500 miles in USA), more run-through trains carrying un-inspected interchange traffic stopping only for fuel at terminals and not even receiving pull buy inspections any more. We believe this combination is a disaster waiting to happen. We believe inspection and inspection locations should be mandatory and regulated, not left to the railway company. We believe automated detection equipment should be used as intended to augment and not replace qualified tradesperson inspections. We believe mandatory qualified tradesperson air testing at 1,500 km should be regulated. 1.3.5 No there is too much of a reliance on Technology and not enough on proper human inspection and monitoring procedures. 1.4 Human factors, safety awareness and public information Presentation to Railway Safety Act Review Panel May 15, 2007 19

1.4.1 Are employees appropriately qualified and trained to carry out their duties safely? to respond effectively to emergencies? Although the Transport Canada conducted its Safety Audit on CN Rail between August 22, and September 16, 2005, it was not released until January 2007 when the CBC secured it through the Freedom of Information Act. The Railway s, Transport Canada, and other Regulatory or Investigative Authorities should be required to publicize all documentation, findings and directives to the Labour Organizations, other relevant organizations and the general public as soon as such documentation, findings and directives have been filed. While many CN Rail Shopcraft employees are long service employees and well versed in their jobs, training or qualification is falling far short for new hires and for upgrading existing employees. CN Rail consistently waters down the training criteria in time and content. Employees responsible for Inspection and Maintenance of Locomotives and Trains should be trained and qualified to a specific set of standards developed and monitored by Transport Canada through consultation and agreement of the relevant Labour Organizations, Apprentice Boards and Railways. Canadian Pacific is continually reviewing and reducing training in the name of cost control, for example: We have received notice that recertification training in train inspection which was required every 3 years will now be completely eliminated. Welding recertification which was also required every 3 years has also been eliminated. We believe this does nothing to enhance safety and in fact only contributes to the overall drive of the railway companies to ratchet down all training to an absolute minimum for the sole reason of cost control. In Quebec, the AAR manual is only provided in English. We have attempted repeatedly to have the RAC and/or the railway companies translate the manual for our Frenchspeaking members. Our attempts have only fallen on deaf ears. English speaking Supervisors will verbally translate what they think our members should know. The reason why they won t translate.cost. Presentation to Railway Safety Act Review Panel May 15, 2007 20

A minimum standards of qualifications and training must be established, regulated and maintained. 1.4.1 There are outstanding compliance issues in regard to Training matters. It is the same for Railway Passenger Handling Safety Rule Training. Furthermore, Regulation requires training, but there is no need for an annual drill of participants. Furthermore, First Aid standard is lower for on-train employees than for off-train personnel. 1.4.2 Are appropriate employee support activities provided, such as proficiency evaluation systems, mentoring and coaching? Although the Transport Canada conducted its Safety Audit on CN Rail between August 22, and September 16, 2005, it was not released until January 2007 when the CBC secured it through the Freedom of Information Act. The Railway s, Transport Canada, and other Regulatory or Investigative Authorities should be required to publicize all documentation, findings and directives to the Labour Organizations, other relevant organizations and the general public as soon as such documentation, findings and directives have been filed. While many CN Rail Shopcraft employees are long service employees and well versed in their jobs, training or qualification is falling far short for new hires and for upgrading existing employees. CN Rail consistently waters down the training criteria in time and content. Employees responsible for Inspection and Maintenance of Locomotives and Trains should be trained and qualified to a specific set of standards developed and monitored by Transport Canada through consultation and agreement of the relevant Labour Organizations, Apprentice Boards and Railways. Proficiency evaluations: Supervisors conduct evaluations on workers but the supervisors conducting the evaluations have less experience, training and knowledge of the work being performed or the working rules workers must follow, than the worker does. Proper proficiency evaluations simply cannot be performed with any confidence in the present work climate. Presentation to Railway Safety Act Review Panel May 15, 2007 21

Mentoring: We believe if mentoring is required, then the original training was deficient and proper training, re-training and certification and re-certifications should be reviewed, mandated and regulated. Coaching: Presently coaching is used with little or no personalized standard, or qualifications. Basically, anyone can be a coach. We believe that coaches should be individuals that have specialized, additional and personal training skills in all aspects of training. The present application of coaching has no rules or applications or qualifications. It is at the companies will. We believe the concept of coaching is to remove requirements for training and retraining or recertification. We believe proper mandated training and certification, recertification or retraining would satisfy this process and negate any need for a concept for coaching. The concept of coach came about when the company started to reduce training. 1.4.2 Some procedures are in place, but have not been adopted formally as a corporate policy. 1.4.3 Are employee fatigue, hours of service and overtime concerns for railway safety? There is a concern for Railway Safety in this regard. Due to the lack of personnel, CN Rail has recently applied to (HRSDC) to allow for an extension of hours beyond the maximum allowed under the Canada Labour Code. CN Rail s has also required employees from one location to temporarily transfer to another for weeks and sometimes even months at a time (i.e. Manitoba to BC) and work consistent excessive overtime in these locations to offset for the shortages of employee. This does nothing to enhance Rail Safety. Presentation to Railway Safety Act Review Panel May 15, 2007 22

If the railway would have the authorities believe they are following the overtime provisions of the Canada Labour Code, which we believe the hours of service are adequate. Unfortunately there are breaches of the Code occurring almost daily somewhere across the Country. We have long believed there is a correlation between overtime and fatigue. 1.4.3 When trains are delayed, VIA practice requires on-board service personnel to depart, sometimes immediately, on the return leg and work extended hours with little or no opportunity for restorative sleep. While on-board service personnel do not operate trains, they are assigned tasks that require a high level of performance and cognitive functioning, particularly in emergency situations. 1.4.4 Is there a need to regulate testing for use of substances like alcohol and drugs? Drug and Alcohol testing is not necessary on the Railways. What needs to be regulated are Joint, Un-punitive Employee and Family Assistance Programs (EFAP), which when developed properly accomplish the goal of controlling the substance abuse and at the same time assisting those in need. The present CN EFAP is just a process to eliminate those with a genuine addiction and do not perform to the standards expected. It is definitely not a helping hand program, as on other Railways or in other Industries. Canadian Pacific Railway has and continues to have an excellent non-punitive Employee and Family Assistance Program, jointly governed by the CP and its Unions. This program is effective and therefore eliminates the need for the regulation of testing on the Railway. 1.4.4 No. The on-board service personnel do not control or operate Trains and our offboard personnel do not make movements outside of confined areas. 1.4.5 Are there any labour relations issues that might affect railway safety? Because of its shortage or lack of employees, CN Rail has increased contracting out of maintenance on its Locomotive and Rail Car Fleet. Contractors are, as a general rule less Presentation to Railway Safety Act Review Panel May 15, 2007 23

qualified and/or certified then Railway employees. They should at least be held be held to the same standard of testing and qualifications as Railway Employees. Employees are reluctant to report injuries, near misses, and accidents for fear of reprisal or discipline Labour Relations looks at employee fault rather than the compete picture of root causes and remedial actions. Such as: the motivations of supervisors. ie: What their bonuses are paid out for, etc Employees are reluctant to report injuries, near misses, and accidents for fear of reprisal or discipline. Labour relations looks at employee fault rather than the compete picture of root causes and remedial actions. Such as: the motivations of supervisors. ie: What their bonuses are paid out for, etc 1.4.5 Unfortunately, from time to time this does occur. Usually, on VIA we do not have a problem with confusing the two. 1.4.6 Are enough resources devoted to public information and awareness, especially at non-rail interfaces where a significant share of fatalities and serious injuries occur? No. CN puts very little into this area of concern. We do not believe the public is aware of seriousness of working on or around rail operations. We do not believe the public or non-rail interfaces know that since its inception in the 1800 s, Canadian Pacific Railway had only 1 year where there wasn t an employee fatality. We do not believe the non-rail interfaces know the number of yearly public fatalities. 1.4.6 No. Via puts very little effort into this area of concern. Presentation to Railway Safety Act Review Panel May 15, 2007 24

1.5.1 Are safety requirements more onerous for rail than for trucking? air or marine transportation? are they less onerous? No, While Train Transportation is the best solution economically and environmentally for moving goods across land, particularly dangerous commodities, (1 truck as opposed to 1 train with 100 cars) the impact of a major disaster is much higher considering the amount of commodities carried. The Safety regulations should be more onerous on rail than on air or trucking. We are not familiar with regulations for trucking, air or marine. We are however familiar with the FRA and the AAR. Canadian railway requirements regarding repair and maintenance of railway cars and equipment and trains are far less onerous and stringent than both the AAR and FRA. We believe that the minimum freight car standard, minimum locomotive standards, and air brake rules should be strengthened and relevant sections of the AAR and FRA be integrated for the strongest and safest set of regulations and rules in North America. Our knowledge of trucking, air or marine regulation is limited. Railway requirements seem to allow for too much interpretation. 1.5.2 Are costs to railway companies of complying with railway safety requirements too high compared with costs borne by other modes? too low? Don t know regulations for other modes. However, the cost of complying with any safety requirement should not be a consideration. As outlined the impact of a major disaster on rail or marine is much higher considering the amount of commodities carried. The Safety regulations should be more onerous on rail and marine than on air or trucking. We believe that operating a safe operating railway is not be based on cost effectiveness It should be good for the environment, employees, the public and the railway company. Presentation to Railway Safety Act Review Panel May 15, 2007 25

The cost of not operating within the railway safety requirements is further damage to the environment with dangerous commodity spills, higher employee injury and fatality rates, further public dangers through derailments of longer and less inspected trains. A safe operating railway should be the cost of doing business in Canada as a minimum standard. 1.5.2 Again, our knowledge of trucking, air or marine regulation is limited. Railway requirements seem to allow for too much interpretation. 1.5.3 Is railway safety regulation contributing to congestion at terminals, line-points, or at intermodal exchanges? at ports? No. Railway Safety regulation has nothing to do with the congestion at terminals, linepoints, Intermodal Exchanges or Ports. The congestion is more the fault of operating design and abundance of Traffic, Traffic flows, Bottlenecks, etc Regulations must be viewed as a minimum standard. Regulations are a cost of doing safe business. We believe any congestion is due to the surge in traffic and carloads not regulations. The railways are running close to capacity. It is more an infrastructure and capacity problem. 1.5.3 Not applicable to VIA 1.5.4 Are there jurisdictional issues that may affect competitiveness? This has no application in the discussion of Rail Safety. In any event we do not believe that any jurisdictional issue in relation to competitiveness will have an impact on Rail Safety. Presentation to Railway Safety Act Review Panel May 15, 2007 26

There is no consistency or regulations regarding qualifications for workers repairing rolling stock. The 3 major railways maintain a minimum qualification but short lines can have anyone repair or maintain rolling stock. Basically anyone with a truck, welder and a few tools can repair cars on short line railways. This equipment can and does get interchanged to the major roads, and can and does get interchanged with other countries with no guarantee regarding the quality of repairs. There should be a minimum standard regarding tradesperson qualification identical to the major railways. These trades should be certified and red sealed. This would ensure quality and consistent repairs and maintenance. 1.5.4 There are always jurisdictional issues between VIA and the Railways it operates on. These Jurisdictional issues could affect the safe operation of Passenger Trains. 2. Provisions and Operation of the Railway Safety Act 2.1 Enforcement powers 2.1.1 Have problems arisen with respect to the enforcement powers associated with the RSA? As above. Transport Canada is not fulfilling its responsibility to oversee railway safety as it does not have enough officers in the field to ensure adequate random inspections, or that Notice or Compliance directives are carried out. The Rail Directorate should have authority over the Transport Canada Regional Offices with respect to Rail Safety matters. When our local representatives bring issues to the regional safety officers they are slow to reply. The regional safety officers rely on company information and answers to reply to us. The regional officers seldom, if ever, investigate the concerns themselves. Presentation to Railway Safety Act Review Panel May 15, 2007 27

We then further our concerns with TC head office. They do follow-up but they generally say the information is now outdated. In addition head office has no control over the regional safety offices. Of the 3 rail safety blitzes we conducted, 1 in Coquitlam B.C. and 2 in Winnipeg Manitoba, we provided documented deficiencies in company reporting, letting bad order cars continue in service, missed inspections We have had few satisfactory answers or results from Transport Canada. Transport Canada meets with the railway companies but seldom meets with workers or worker representatives. Some regions enforce the regulations more than others. Other than writing orders, Transport Canada has little power to ensure the railway companies comply with regulations. 2.1.1 Yes. VIA on-board employees are caught between Transport Canada Regulation and HRSDC Regulation. It appears that powers of enforcement are weak at best. We cannot recall when a Railway has been has been fined except where someone has been killed and those fines are minimal to say the least. 2.1.2 What kind of enforcement powers should be available to Transport Canada? As above. Transport Canada should develop, establish and monitor compliance of all rules. Transport Canada should also set and enforce penalties for any infractions of rules or regulations. We believe that Regional Districts should be directed by and report to Transport Canada headquarters. This would maintain consistency in enforcement of regulations region by region and the country as a whole. Transport Canada has little power to force the railway companies to comply with rules and regulations. Presentation to Railway Safety Act Review Panel May 15, 2007 28

Safety officers should have powers to park non-compliant trains, remove non-compliant cars and locomotives from service immediately, ensure training for employees is adequate and hold supervisors accountable for their actions. Transport Canada should have the power to determine additional safety inspection locations. Presently the railway company can shut down an inspection locations and the only requirement is to notify Transport Canada. Safety Officers should have the power to monetarily fine employers for non-compliance. 2.1.2 The Regulator should have sufficient power to force immediate change where Rail Safety is concerned. 2.1.3 What kind of penalties/ incentives are most effective to ensure compliance? There should be no incentives. Penalties for Safety Rule violations should be financially imposed, on an escalation basis, for repeats offences with individual prosecution of Railway Officers for flagrant violations. We believe penalties need to be in place as a deterrent for railway non-compliance. We believe a starting point for freight car and locomotive non-compliant penalties could be partially extracted from the US Department of Transportation Code of Federal Regulations -49 (See appendix B to part 229) for Locomotive regulations (See appendix B to part 231) for rail car regulations Regarding incentives, the incentive for running a compliant and safe railway would be to continuing to operate and reap in the enormous profits they have been and continue to be experiencing. 2.1.3 Large fines, Jail time for those Supervisors and Officers in Charge who ignore Rail Safety Rules, Regulations and Procedures. Also, Large fines for the Corporation to emphasize its complicity in the violation. As for incentives, there are too many already. There could be an incentive for Railways upgrading Safety aspects of their Railway. Presentation to Railway Safety Act Review Panel May 15, 2007 29