Policy & Positions Manual
Provincial Issues - Labour, Citizens Services and Open Government
Labour and Employment (1998 – Revised 2011)
The vast majority of employment and economic development in BC is generated from the small and medium sized business sector (SME). SME’s currently account for 80% of job creation in Canada and their employees represent nearly 50% of all workers in the province.
A disincentive to investment and killer of jobs is over regulation by government of SME’s. Labour and employment regulations underwent significant changes under the previous government. In most cases, the changes made it more difficult for SME’s to operate, and significantly hindered job creation in BC during that period.
The current Federal Government has taken significant steps to address the concerns of business, and has indicated that further measures will be introduced. While the Chamber supports the majority of changes introduced to date, further reform is necessary if SME’s are expected to cope with the economic realities of the 21st century in BC.
Although there are many government regulations in this field, the key labour and employment regulations addressed by the Chamber’s Policy and Positions Manual at the provincial level are:
- Labour Relations Code;
- Employment Standards Act;
- Workers' Compensation; and
- Human Rights Code
The Chamber is not the only organization that advocates further reform. The Coalition of BC Business (the Coalition) continues to monitor and speak to labour and employment law reform. The Chamber remains very active in the Coalition and the Business Council of BC in monitoring and promoting change.
Labour Relations Code
In 2001, the Government amended the Labour Relations Code (the Code) to restore the mandatory secret ballot vote in all certification applications, to provide that educational programs to students and eligible children under the School Act be designated as essential services. This would eliminate sectoral bargaining in the construction industry, and clarify the basis upon which votes, including a strike vote, must be conducted by secret ballot.
In 2002, the government introduced further amendments to the Code that were intended to “provide a framework for labour and management to build healthy workplace environments and enterprises that compete in a modern world economy,” and that would, “send an important message to the labour relations community and to investors that BC is open for business and that we are prepared to make sure labour relations in BC are balanced, fair minded and support growth and prosperity.”
Changes included amending the Purposes Section 2 of the Code to rename it “Duties” and to emphasize their overall importance. The list of such duties was expanded to recognize the rights and obligations of employees, employers and trade unions under the Code and foster the employment of workers in economically viable businesses. The Government also introduced significant amendments to employer free speech by expanding the right to communicate under Section 8 of the Code.
In December 2003, the Minister of Skills Development and Labour announced the formation of a Section 3 Committee to provide advice on 14 policy issues related to the Labour Relations Code. The changes were aimed at returning balance, flexibility and individual accountability to the Code, for both employers and employees. A number of the issues assigned to the Section 3 Committee addressed aspects of certification, decertification and fair representation. Others include: Definition of Picketing, Definition of Employee – as it pertains to exclusion from a bargaining unit; and Successor Rights and Obligations, as they pertain to “contracting out.” The Chamber actively participated in the development of a submission from the Coalition which, since 1992, has spoken for small and medium-sized business employers with respect to regulation of employment matters in the province, including labour relations, employment standards, human rights and Workers’ Compensation Board (WCB) issues. The Committee filed its report in April 2003. The Committee analyzed the issues before it, “to assist the Minister in making decisions about how to proceed.” However, Government has yet to act on the Committee’s report.
Other items not mentioned in the report that were not subject to review include the following:
This Section requires the Labour Relations Board (LRB) to schedule a hearing into certain unfair labour practice and complaints within three days of its filing. This creates significant problems for employers preparing their response to the complaint. It also creates a problem for the LRB in arranging hearings in such a short time period.
Elimination of Employment Due to Loss of Membership in a Trade Union
Under Section 5.1 of the former Industrial Relations Act, unions were prohibited from expelling or suspending membership unless the employee failed to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the union, or having engaged in activity against the union contrary to the statute. This Section limited the circumstances under which unions could require employers to terminate employees under collective agreements that required union membership as a condition of employment. The Chamber submits that this protection should be restored.
Replacement Workers – Section 68
The Chamber was most disappointed to see that the Government has not decided to deal with Section 68. The Chamber maintains its position that Section 68 must be repealed in all its forms.
Section 68 restricts the right of an employer to carry on operations during a lawful strike or lockout. The Chamber has consistently maintained that Section 68 is manifestly unfair, especially insofar as it affects small-and medium-sized businesses in BC. Where such an employer is involved in a labour dispute, it typically finds that the balance of power is tilted significantly in favour of the trade union because of the impact of Section 68. Often an employer is unable to continue its operations in any form due to the labour dispute, the striking employees on the other hand are able to obtain alternate work during the labour dispute which greatly reduces the employer's ability to counteract the union's economic pressure. Moreover Section 68 discourages investment as it is a provision that does not appear in the labour legislation in most other Canadian jurisdictions. Eliminating Section 68 would send a strong message to the global business community that BC has finally balanced the playing field in a way that opens up the many business opportunities that are available in this province.
Elimination of Remedial Certification – Section 14(4)(f)
It is the Chamber’s position that the remedial certification power in Section 14(4)(f) should be repealed.
The amendment to the Code, which re-introduced mandatory secret ballot votes in certification applications, was designed to ensure that trade unions are not forced on groups of employees who do not want them. Remedial certification is inconsistent with this principle, and can result in significant damage to a workplace. Moreover, Section 14(4)(f) is unnecessary, as the LRB has sufficient powers elsewhere to fashion appropriate orders to remedy violations of the Code.
The Chamber believes it is important for BC to take this step, consistent with other jurisdictions, which would ensure that workers' democratic rights are preserved.
There is a perception that when the government designates a service as essential, the service will continue to be delivered as is. This is not the case, however, and service levels in essential undertakings are often set by the LRB at relatively low-levels. The recent BC Ferries dispute demonstrated the harm caused to innocent third parties by setting relatively low-levels of service, and the Government was soon required to step in. The Chamber recommends that essential service levels be set high enough to prevent loss to SME’s.
Issues discussed by the Committee which the Chamber believes require attention include the following:
The Chamber joins the Coalition in recommending that the Code be amended so that rules governing decertification are the same as for certification. A group of employees must have the right to decertify if they no longer want union representation and they should not be confronted with difficult rules or unnecessary roadblocks in doing so.
Successorship and Bankruptcy
The Chamber recommends that the Code be amended so that employees have a choice about union representation when a bankrupt business is restarted. The new owners should not be required to inherit the previous union certification and collective agreement.
The Chamber recommends that a new definition of picketing be introduced to provide clarity in terms of what constitutes picketing and what type of labour activities will be included and exempted from the LRB's regulations. A recent decision of the BC LRB traditionally has provided clarity by providing a bright line test between picketing consumer leafleting which would remain exempted from regulation by the LRB pursuant to the Supreme Court of Canada decision in K-Mart. However, the Government could still consider enacting a new definition in light of the K-Mart decision to ensure a clear and pragmatic approach balancing the right of people to express themselves versus right of businesses to operate without illegal picketing.
THE CHAMBER RECOMMENDS
That the Provincial Government act on the recommendations included in the Chamber submission of April 10th, 2002, and furthermore:
consider legislation emanating from the report of the Labour Relations Code Section 3 Committee;
that Section 5(2)(a) be eliminated, leaving it in the LRB's discretion to schedule expedited unfair labour practice hearings as it deems appropriate, considering the interests of the parties and the Board's available resources;
restore the limitations of Section 5.1 of the former Industrial Relations Act such that trade unions be prohibited from forcing employers to dismiss employees who have been expelled or suspended from membership in a trade union, or who have been denied membership in a trade union;
that Section 68 be eliminated;
that Section 14(4)(f) on remedial certification be repealed; and
that the Labour Relations Board be directed to set essential services at higher levels to minimize disruption to the public.
a) General Policy Recommendations
On March 31st, 2003, amendments to the Human Rights Code came into effect, most of the changes being procedural. The Human Rights Commission, with its cumbersome investigation and complaint vetting model and its advocacy component, was eliminated. A direct access complaint model was put in place with complaints being filed directly with the BC Human Rights Tribunal. In addition, the limitation for filing complaints was reduced from 12 months to 6 months.
At the same time, the Ministry of the Attorney General created a new complainant representation system. Prior to the demise of the Commission, all complainants whose complaints had been referred to the Tribunal by the Commission for hearing were entitled to free legal aid representation through a lawyer appointed by the Legal Services Society, without a means or merits test. Now, a Human Rights Clinic represents all complainants before the Tribunal, without a means or merits test. The Clinic is made up of two entities, the BC Human Rights Coalition, a human rights advocacy organization, and the Community Legal Assistance Society (CLAS), which provides legal aid services especially on poverty and human rights issues. The Coalition represents human rights complainants up until a hearing. CLAS represents complainants at the hearing.
The Ministry of the Attorney General contracted with the Law Centre in Victoria, a legal-aid clinic operated by the University of Victoria, to provide advice to respondents before the tribunal. There is, however, no system of free legal representation for respondents, even on a means test basis. Many of the respondents before the tribunal are small businesses, who have little, if any, financial resources to defend human rights complaints. The Law Centre acts on behalf of very few respondents, as it is based only in Victoria. There is no system for legal aid representation for respondents throughout the province.
While there were problems with the Commission in the speed of their process, and with their apparent lack of neutrality, only about 10% of the complaints filed with the Commission were referred to the Tribunal for hearing.
The current adjudication system before the Tribunal is a very paper intensive and litigation-focused system. The Tribunal vets very few complaints, being only those complaints clearly out of time or not within the Tribunal's jurisdiction, prior to sending them out to the respondent for a written response.
The Tribunal has very limited power to award costs. Under s. 37(4)(a) of the Human Rights Code, the Tribunal can award costs only if a complainant, “has engaged in improper conduct during the course of the complaint.” The Tribunal has awarded costs only five or six times.
Respondents must make applications to dismiss the complaint prior to hearing within seventy days of the date of the Tribunal’s notice that it accepted a complaint within thirty days of the date on which information or circumstances, which formed the basis of the application, came to the respondent’s attention. Additionally, the respondent must file the dismissal application at the same time that they file the Response to Complaint Form, where the Tribunal has added a respondent or, if the Tribunal has extended the time for filing, a Response to Complaint Form.
As a result, respondents must make considerable effort to dismiss marginal complaints. Given the formality of the Tribunal's system, and as the complainants are represented by a free advocacy and legal services, the respondents must usually hire a lawyer.
While the Tribunal encourages early mediation, and also mediation prior to the hearing, many respondents feel that mediation of a marginal complaint amounts to blackmail; i.e., pay me or you will go through a lengthy and costly hearing. The Tribunal hearings average between three to five days.
- The bottom line is that the playing field is not level for respondents.The track record of the Tribunal since its inception has been varied in terms of disposing of complaints in an efficient and cost effective manner.
- On one hand many cases are dismissed on preliminary applications brought by employers under section 27 of the Human Rights Code. Many complaints are dismissed because they do not establish a prima facie case of discrimination. The Tribunal has dismissed complaints on a preliminary application in a number of cases where there was “no reasonable prospect of success”. In other areas the Tribunal will dismiss a complaint if it is filed out of time and it is usually very reluctant to exercise its discretion to extend that time limit. If there is no point in proceeding with the complaint, or if it does not further the Purposes of the Code the Tribunal can dismiss it without a formal hearing on the merits. As well the Tribunal will, on occasion, defer a human rights complaint until another proceedings is completed or may dismiss it if the substance of the complaint has been dealt with in another proceeding thus avoiding a duplication of effort and unnecessary time and expense.
- The extent of the Tribunal’s powers to avoid lengthy hearings and resolve matters at an early stage are seen in the Carter v. Travelex Canada Limited decision of the BC Court of Appeal. That decision confirmed the scope of section 27 of the Code which allows the Tribunal to dismiss a complaint on the basis that the complainant failed to accept a reasonable settlement offer. Generally the Tribunal’s mediation efforts are fairly successful.
- On the other hand there are significant problems with the adjudication of many human rights complaints in British Columbia. Those problems include the following.
- First, many hearings simply get out of hand in terms of the length of the proceedings and the cost. In the Brar and Others v. the College of Veterinarians of British Columbia proceedings the Tribunal has already held (wait for it) 200 days of hearing since September 2007. The Respondents, following the closing of the Complainants case, brought an application to dismiss but were unsuccessful. The Tribunal member hearing the case was not reappointed and her five year term expired in July 2010. It was anticipated at that time that the case would take at least another 150 hearing days before the complaint would be fully addressed by the parties. There were numerous court proceeding including a recent decision of the Court wherein the Respondent College sought to exclude Tribunal member Parrack from hearing the balance of the case because it alleged there was a reasonable apprehension of bias. The Court dismissed the application and Tribunal member Parrack will now complete the case. It is noteworthy to consider the Court’s disposition of the cost issue:
“I am, however, sufficiently concerned about the words and actions of the respondent complainants that gave rise to these events as well as the unsubstantiated and speculative allegations advanced by the petitioners and their counsel in response that I have concluded that no award of costs should be made that would reward the conduct of either party.” (para 93.)
- The second problem that is very much at the forefront of concerns for employers [especially small and medium sized enterprises (SME’s) that make up the bulk of businesses in BC], is the fact that the Tribunal believes it has jurisdiction to award legal fees to complainants. There is no doubt that there has been an explosion of human rights litigation following the Supreme Court of Canada’s 1999 Meiorin decision which reformulated the duty to accommodate. Despite the direction of the Supreme Court of Canada that a “common sense” and practical approach must be taken, many human rights tribunals, following Meiorin seem to have ignored or minimized that direction. Lengthy and costly hearings often follow. The BC Human Rights Tribunal has held that it does have authority in certain cases to award legal fees. The uncertainty created by this area of the law makes it very difficult for employers to decide whether to defend themselves from human rights complaints that may be without merit. How expensive can it get? In one case UBC claimed legal fees it incurred in successfully defending a complaint that was outside the time limit. The case was complicated but never went to a hearing on the merits. UBC’s legal fees were in excess of $150,000.
A third area that causes concern is the importance the Tribunal places on the procedural aspects of the Duty to Accommodate (“DTA”) even where there is no substantive breach of the Code. As a result there are decisions where the employer has not violated the substantive aspects of the DTA but has failed to follow the proper procedure to assess its obligations under the DTA. In one case involving the government paramedics the complainant, with the assistance of his union, successfully prosecuted his complaint before the Human Rights Tribunal even though the employer had not violated the substantive rights under the Code. The paramedic in question had MS and as a result he had a diminished sensation in his hands resulting in an inability to palpate pulses. Paramedics are required as part of their jobs to palpate pulses. Following a 22 day hearing and after hearing extensive expert evidence, the Tribunal dismissed the substantive part of the complaint. It found that the employer had established that the requirement that paramedics be able to manually palpate pulses is a bona fide occupational requirement and it was not reasonably possible to accommodate the complainant by allowing him to work as an attending paramedic in light of his inability to do so. That, however, remarkably was not the end of the analysis. The Tribunal went on to consider whether or not the government had treated the complainant fairly and “with due respect for his dignity throughout the accommodation process”. It held “a failure to do [so] may result in a breach of the procedural aspect of the duty to accommodate, notwithstanding the fact that the standard the employer applied to the employee was otherwise justified.”
The complainant was awarded $22,500 for injury to dignity, feelings and self-respect and the manager involved was also found jointly and severally liable for the damages. The chilling effect of such a decision on a manager’s ability and desire to act on behalf of an employer in a unionized setting cannot be overstated. Other remedies were claimed and the complainant was awarded an additional $35,000 in damages. In another case involving McDonalds the breach of the procedural aspects of the DTA resulted in an order for 2 years wages and $25,000 as compensation for injury to dignity and self respect.
While the fair treatment of complainants is a laudable goal these types of damage awards are inconsistent with the purposes of human rights legislation where an employer can be found to act contrary to the Code even though there has been no substantive violation of the Code.
Finally, there have been serious questions raised regarding the structure of the Human Rights Tribunal. The government has sought feedback on the proposal for a “Unified Workplace Tribunal” which would deal with workplace related disputes and other matters currently overseen by the BC Labour Relations Board, the Employment Standards Branch and the BC Human Rights Tribunal. The proposal is that the Unified Workplace Tribunal would merge these agencies on matters relating to the workplace. The Chamber, through its affiliation with the Coalition of BC Businesses, supports the creation of the Unified Workplace Tribunal.
THE CHAMBER RECOMMENDS
That the Provincial Government:
amend its contract with the Human Rights Clinic so that complainants must meet a means and merits test in order to receive free legal aid;
create a legal aid clinic or system for human rights respondents;
amend the Human Rights Code to give the Tribunal more vetting power for marginal complaints on their own, prior to sending the complaint to the respondent;
strike a committee to consider ways in which hearings may be streamlined and conducted in a much more economical and fair manner;
consider the creation of a Unified Workplace Tribunal;
amend the Human Rights Code to specifically preclude the Human Rights Tribunal from awarding complainants costs including legal costs;
amend the Human Rights Code to eliminate or limit the circumstances under which an employer can be found in violation of the Human Rights Code due to a failure to follow “procedural” as opposed to “substantive” provisions of the Code. The Tribunal should be restricted and precluded from finding a violation of the “procedural” aspects of the duty to accommodate where there has been no substantive breach of the Code and no remedies should be allowed for procedural breaches
Abolition of Mandatory Retirement and Age Discrimination
In the 2007 Chamber Policy, it was noted that changes were being proposed to the BC Human Rights Code to abolish mandatory retirement and prohibit age discrimination for those over 65. The Chamber recommended and supported a number of initiatives and recommendations with respect to the proposed legislative changes.
On January 1, 2008, the Government amended the Human Rights Code by changing the definition of age. These amendments to the Human Rights Code extended protection against age discrimination to employees and others who are 65 years of age or older. As a result of the amendments, employers in British Columbia will no longer be able to implement mandatory retirement policies through corporate policies, collective agreement provisions or individual contracts which require retirement at age 65.
The amendments reflect many of the concerns of the Chamber, resulting in a measured approach to the elimination of mandatory retirement and age discrimination. For example, employers will still be able to rely upon age based distinctions which may be contained in bona fide retirement, superannuation or pension plans, or bona fide group or employee insurance plans. Therefore, although the change in the law will give employees the right to work beyond 65 years of age, there will be no requirement that the benefits, which are provided to older workers, will necessarily be the same as those which are provided to employees who are younger than 65. The amendments also allow for age discrimination where other statutes specifically provide for same. Therefore, WCB restrictions based on age 65 remain in force.
In addition, the Human Rights Code still allows exceptions based on bona fide occupational requirements to allow employers to institute a blanket mandatory retirement policy at a particular age. Realistically, however, it will be difficult for employers to justify establishing such mandatory retirement policies.
The amendments potentially create problems for employers who can no longer retire employees at age 65. Employers will now have to make individual assessments about the capabilities of employees if they wish to terminate employees. Accordingly, employers will need to pay more attention to performance management over the entire course of an employee’s career in order to gauge and monitor changing levels in performance or capacities. If employers wish to encourage older workers to retire then they will have to consider developing attractive voluntary retirement packages, thus avoiding the necessity of dealing with employees who may have simply decided to remain working for too long.
While these changes are consistent with changes elsewhere in Canada, the Chamber remains concerned that it will be difficult for employers to terminate senior employees who have chosen to work beyond age 65. The duty to accommodate requirements under the Human Rights Code have not been modified to allow a more reasonable accommodation balance between the needs of the employee with the financial and infrastructure resources available to small and medium sized employers. Further, the exemptions regarding benefits and other government policies such as WCB may, at some point, be challenged under the Charter of Rights.
THE CHAMBER RECOMMENDS
That the Provincial Government maintain careful consideration and monitoring of these changes to ensure that the exemptions remain in place. The Chamber also encourages employers to educate themselves regarding the advantages of maintaining employees in the workplace who are beyond the age of 65.
The Employment Standards Act (the Act) affects all business in BC but notably small businesses are the most affected as they do not have collective agreements. The Act has been amended several times in the last couple of years. Several of those amendments are of concern, notably:
An employer and employee can now agree to average the schedule work hours over a period of 1, 2, 3 or 4 weeks. Averaging agreements must be in writing and have a start and an end date. While large employers have the capacity to create written averaging agreements in advance, small businesses often do not. They are generally scrambling, as the ultimate multitask employer. A written average agreement adds another dimension which is often confusing and difficult to create.
Effective November 30, 2002, the Director of Employment Standards can add a $500 monetary penalty for each violation of the Act, a $2,500 penalty for the violation of the same section of the Act or regulation at the same location within three years of the first violation, and a $10,000 penalty for the violation of that same section at the same location within three years of the second violation. Typically, the Director will add penalties for each section of the Code that is alleged to have been violated. For example, where a business closes due to financial circumstances, penalties can be added for every section of the Act that has not been met; i.e., unpaid statutory holidays, unpaid vacation pay, or failure to pay wages within the time limits of the Act. Furthermore, if there were two employees who were owed wages, the Director could issue a penalty for $2,500 for that second employee and then $10,000 for the third employee.
The Director has no discretion under the Act about issuing penalties. There is no due diligence test to the issuance of penalties. A penalty is often issued where an employee has been fired for what the employer feels is just cause. Ultimately, just cause is a judgment call which may or may not be held up on review. Yet there is at least a $500 penalty for that determination.
Investigation and Adjudication:
The Director rarely investigates complaints of unpaid wages. Instead, the Director has created a Self-Help Kit and an adjudication process which is conducted before one of the Director's officers. While in some circumstances, that adjudication process may be helpful, in other cases it is not. An investigation can be simpler, less costly and time-consuming for the employer. Often the hearings are long and formal. They are conducted before an officer who often has little experience or training in adjudication. The Director has founded its adjudication process on very little statutory power to do so, s. 76(2).
The Director has a statutory neutral role, BWI Business World Inc. BCEST #D050/96 and Mitchell v. Director of Employment Standards, Dec 28, 1993 decision of Justice Vickers. The exact nature of that role is often very uncertain, and neither the Director nor the BC Employment Standards Tribunal (the BCEST) has a policy statement or pamphlet on the Director’s role before the BCEST. There is no consistency as to whether or not the Director will appear on Appeals, or whether the Director takes a neutral or aggressive role. That lack of clarity and consistency is problematic for appellants. The Director’s neutral role also dovetails with their statutory obligation under s. 112(5) to disclose the full record to the Tribunal. This is not consistently done; JC Creations Ltd BCEST #RD317/03.
Failure to Follow BCEST Decisions
There have also been several instances recently where the BCEST has upheld appeals on the basis that the Director has failed to follow its previous decisions. This has notably occurred in decisions involving commission sales. For example, in Parklane Ventures Ltd., BCEST # D211/03, the Director argued that it may ignore BCEST decisions. The BCEST Tribunal member said that that view "smacks of an abuse of the decision-making and appeal processes established by the legislature."
The business community is caught in this tension between the Director and the Tribunal. The Tribunal has set law and the Director is failing to follow it, either in its decisions, in providing the record to the Tribunal, or in its role before the Tribunal.
THE CHAMBER RECOMMENDS
That the Provincial Government amend the Employment Standards Act by:
- removing the penalty provision entirely, or placing a broad due diligence style defense, and clarity around the circumstances when a penalty may be issued;
- providing clear statutory direction on the role of the Director in investigating and determining complaints, and in its role and obligation before the BCEST;
- giving clarity and simplicity to the Averaging Agreements;
- binding the Director to decisions made by the Tribunal; and
- awarding costs against the Director for failing to provide a record to the Tribunal and in failing to follow directions and decisions of the Tribunal.
WorkSafeBC – Introduction
In late 2001 and early 2002, the then Workers Compensation Board underwent a pair of Core Reviews conducted by Alan Hunt and Alan Winter. Government has taken some initial steps to address concerns raised but more needs to be done as WorkSafeBC, with its costly administration and weighty regulatory burden, continues to represent a challenge to conducting business in BC today.
The Chamber recognizes the work the Provincial Government has done to date but advocates further measures to reform WorkSafeBC.
WorkSafeBC – Occupational Health and Safety
For nearly a decade the Chamber has consistently advocated a regulatory regime better suited to the needs of small business. Although progress has been made in many areas of the WCB, there are still some basic challenges presented by Occupational Health and Safety regulations as they currently stand. These include:
- Complexity – Neither SME operators nor many of their employees have the expertise to understand a host of complex regulations, all formulated by experts in a variety of fields. Large organisations and government have the resources to keep such experts on staff but this is not an option for SME’s. This leaves small businesspeople with two options. They can run the risk of being unknowingly in violation of the regulations, or they can hire a series of experts to ensure their workplace is not in violation, a near prohibitive expense for an average SME;
- Cost of compliance – One of the largest expense concerns of SME’s is directly related to the complexity of the regulations. In order to comply with the regulations as written, SME’s would have to hire a battery of consultants. They would need toxins experts, engineers and architects just to determine if they are in violation. This expense alone precludes compliance. There are also regulations that create unnecessary direct costs both by arbitrarily assigning to employers responsibility for issues that are not legitimately their concern, and by being so vague they can be interpreted as all-encompassing. Furthermore, there is no evidence that these regulations will actually decrease the number of workplace injuries. Until a cost/benefit risk analysis can be conducted there is no way to justify such expense.
- Prescription and inflexibility – The problems described above are all caused by the approach taken within the regulations. The regulations are prescriptive in nature and attempt to regulate every single activity that may or may not occur in a workplace. The regulations are aimed at the lowest common denominator, those few employers who do not follow regulations. These few employers, however, will not follow regulations, regardless of how restrictive or all encompassing the WCB attempts to make them. The Chamber believes that this approach is ineffective and, indeed, unrealistic. Compliance instead must be encouraged through positive means.
WorkSafeBC should set clear and consistent health and safety standards and leave businesses with the flexibility to determine how best to meet those standards. This approach would allow the employers to spend time and resources addressing potential problems rather than spend that time and those resources following needless and complex regulations. This approach would also put pressure on employers to produce results as they would be unable to hide behind the loopholes and red tape inherent in any attempt to create such comprehensive regulations.
Through the Industry Services Branch, WorkSafeBC has attempted to address some of these issues. Initiatives they have undertaken include the production of sector-specific guides that would help employers in certain sectors to better understand what regulations apply to them and how best to comply.
Although this incremental approach has not had the revolutionary impact the business community has consistently advocated for, we wish to continue working with the ISB to further implement business-friendly amendments to the current regime.
Despite the further work required within this report, there are several recommendations supported by employers, including the recommendations to fine workers who knowingly breach safety rules and the recommendation that regulatory review be continuous and completed every three years.
THE CHAMBER RECOMMENDS
That the Provincial Government:
- revise the current Occupational Health and Safety regulations to introduce a goal-based model that will allow the employer the flexibility to achieve the required safety targets, and emphasize a preventative and proactive approach that encourages education for employers and workers about their rights and responsibilities;
- continue to rescind the provisions that create unnecessary bureaucracy such as requiring health and safety committees, and the appointment of safety representatives for small, low risk workplaces;
- continue to implement the Commission recommendation to fine workers who knowingly breach safety rules to recognize that both employers and employees are responsible for workplace health and safety;
- implement the Commission recommendation to complete a regulatory review every three years to reflect the constant pace of change in the workplace; and
- ensuresthat WorkSafeBC do a better job of educating employers about their rights and responsibilities by ensuring that communications are in plain, simple language.
WorkSafeBC – Rehabilitation Costs
One of the major objectives of the workers compensation system is to assist injured workers in a timely return to productive employment. The Chamber strongly supports this goal and believes that more must be done to help make it a reality.
Early intervention by WorkSafeBC is the key to achieving successful rehabilitation results. Unfortunately, the experience of many employers is that WorkSafeBC’s administrative processes in adjudicating and monitoring claims may result in lengthy delays before any vocational rehabilitation services are considered. In too many cases, the disabled worker has been away from work for such a lengthy period of time before vocational rehabilitation services become involved, that there is little chance of successfully returning the employee to any form of productive employment. This is evidenced by the massive increase in the number of days to return an employee to work over the past two years and the corresponding increase in costs.
THE CHAMBER RECOMMENDS
That WorkSafeBC encourage timely return to work for injured employees by improving the practices of the compensation division and the delivery of vocational rehabilitation services.