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. March 31, 2016 Page 1 of 16
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. March 31, 2016 Page 2 of 16
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. March 31, 2016 Page 3 of 16
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. March 31, 2016 Page 4 of 16
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 March 31, 2016 Page 5 of 16
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: viewing the scene of the incident with the persons carrying out the investigation; March 31, 2016 Page 6 of 16
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: 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. March 31, 2016 Page 7 of 16
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 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 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 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. 11 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). March 31, 2016 Page 8 of 16
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: ohspolicyfeedback@worksafebc.com 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. March 31, 2016 Page 9 of 16
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. March 31, 2016 Page 10 of 16
APPENDIX A DRAFT REGULATION Joint Health and Safety Committees Evaluation of joint committees 3.26 (1) 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 an order under section 126 (1) of the Act respecting the joint committee provides for a variation as set out in subsection (2) of that section of the Act, and the variation is in regards to evaluating the joint committee. (2) An employer must ensure that, with respect to each of the employer's joint committees, a written evaluation is conducted annually by the employer or a person retained by the employer, or 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. (3) The evaluation must contain, but is not limited to, the following information: whether or not, throughout the period of time that is the subject of the evaluation, (i) (ii) (iii) the joint committee met the membership requirements under section 127 to (d) of the Act, the selection of worker representatives on the joint committee were made in accordance with section 128 of the Act, the selection of employer representatives on the joint committee were made in accordance with section 129 of the Act, March 31, 2016 Page 11 of 16
APPENDIX A DRAFT REGULATION Joint Health and Safety Committees (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) the joint committee fulfilled each of its duties and functions under section 130 of the Act, 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, each member of the joint committee received the time off from work the member was entitled to receive under section 134 of the Act, 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, 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, the joint committee prepared reports of its meetings and provided copies to the employer as required under section 137 (1) of the Act, 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 and, and 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; March 31, 2016 Page 12 of 16
APPENDIX A DRAFT REGULATION Joint Health and Safety Committees (c) an assessment of the effectiveness of the joint committee's rules of procedures established under section 131 of the Act; 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 discuss the evaluation at the meeting of the joint committee immediately following (i) (ii) receipt of the evaluation, if the employer or a person retained by the employer conducts the evaluation, or 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 are included in the report of that meeting. March 31, 2016 Page 13 of 16
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) 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 an order under section 126 (1) of the Act respecting the joint committee provides for a variation as set out in subsection (2) of that section of the Act, and the variation is in regards to providing instruction and training to the members of the joint committee. (2) The employer must ensure that, each member of the employer's joint committees, or 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, if the instruction and training is provided to a member of a joint committee, the following topics: March 31, 2016 Page 14 of 16
APPENDIX A DRAFT REGULATION Joint Health and Safety Committees (i) (ii) (iii) (iv) (v) (vi) the duties and functions of a joint committee under section 130 of the Act; the rules of procedure of the joint committee as established under or set out in section 131 of the Act; the requirements respecting investigations under sections 173 to 176 of the Act; 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; the requirements respecting refusal of unsafe work under section 3.12 of this regulation; 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 (i), (iii), (iv) and (v). (4) 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 2 years or less before becoming (i) (ii) a member of the joint committee, the person was a member of that joint committee or a different joint committee, or a worker health and safety representative, the person was a worker health and safety representative at that workplace or a different workplace, and March 31, 2016 Page 15 of 16
APPENDIX A DRAFT REGULATION Joint Health and Safety Committees 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: (c) assisting the persons carrying out the investigation with gathering information relating to the investigation; assisting the persons carrying out the investigation with analyzing the information gathered during the investigation; assisting the persons carrying out the investigation with identifying any corrective actions necessary to prevent recurrence of similar incidents. March 31, 2016 Page 16 of 16