Does Bill 160 threaten worker safety

In a recent three-quarter page Toronto Star advertisement, the Canadian Union of Public Employees (CUPE) and the Ontario Compensation Employees Union (OCEU) have complained that the government’s proposed legislation, Bill 160, will endanger Ontario’s workers. Using some selective statistics, the joint advertisement claims that injuries and deaths have decreased since WSIB assumed responsibility for prevention in 1998.

It also claims that Bill 160 would represent an unfair tax load for some employers, apparently ignoring the present unequal burden of prevention costs.

The advertisement also suggests the Ministry of Labour – who is responsible for the Occupational Health and Safety Act – might not be the best place to locate prevention services. Noting that the whole point of the OHSA is to create workspaces that minimize or eliminate work injuries, it is not altogether easy to follow this logic.

It is hard to escape the fear of job losses at the WSIB as the main thrust behind this advertisement. That might be a legitimate and justifiable concern, but from our reading of the proposed legislation, we fail to see the peril that this legislation might introduce to the workplace.

It should be remembered that when Bill 99 created the WSIB, there was great fanfare in the announcement that the new Board would function as ‘an insurance company’. Responsibility for rehabilitation was off-loaded because that was not the proper job of an insurer, we were told. So it might seem to be ironic that when we are in the midst of rehabilitation services returning to the WSIB, they are losing prevention services – something else that never really seemed to jive with being ‘an insurance company’.

Posted by Paul Harris

Ontario files consolidated OHSA regulation governing confined spaces

On March 29, the government of Ontario filed amendments to Regulation 632/05 – which is not even scheduled to come into force until July 1, 2011. The newly introduced regulation (O. Reg. 95/11) consolidates the confined space requirements already found in other regulations into the upcoming Regulation 632/05. This affects specific rules already in effect for mines and mining plants, healthcare and residential facilities, industrial establishments, and construction projects.

However, the amended Regulation 632/05 maintains the distinction between confined spaces provisions for construction projects and those that apply in other workplaces.

Contact Workplace Health and Safety Network for any assistance required in preparing for the new rules.

Posted by Paul Harris

Bill 160 update

On March 3, 2011, the Ontario government introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  The Bill’s primary intent is to remove from the WSIA (and, thus, from the Workplace Safety and Insurance Board) oversight for health and safety certification and training. There is also the intent in the Bill to create a Prevention Council and a Chief Prevention Officer under the OHSA, although details are scant about what those would be expected to accomplish and how they would be funded (currently, certification and training is funded by WSIB).

One interesting proposed amendment to the WSIA would see WSIB paying construction workers for their time off work while fulfilling the requirements to become certified under the OHSA.

On March 29, the Bill passed Second Reading, entirely unedited, and was referred to the Standing Committee on Social Policy. Interestingly, the Second Reading vote was 73-6 in favour of the Bill as written, which means 28 MPPs didn’t show up for the vote.

The Standing Committee is empowered to study and report on all matters relating to the mandate, management, organization or operation of the ministries and offices which are assigned to it as well as the agencies, boards and commissions reporting to such ministries and offices. Any proposal from a member of this Committee must be adopted by at least two-thirds of the members of the committee, excluding the Chair. The Committee currently has nine members, six of whom are Liberal MPPs.

Posted by Paul Harris

Bill 160 will change health and safety delivery in Ontario

On March 3, 2011, Minister of Labour Charles Sousa introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  At this point, it has only undergone First Reading so there may be a long road ahead before it might become law. Since Ontario is facing a provincial election in October this year, it might die on the order paper before an election ever occurs.

The gist of the Bill is to remove from the WSIA (and, thus, from the WSIB) oversight for health and safety certification and training.

There is also the intent to create a Prevention Council and a Chief Prevention Officer under the OHSA although details are scant about what those would be expected to accomplish.

One interesting proposed amendment in the WSIA would see WSIB paying construction workers for their time in regard to fulfilling the requirements to become certified under the OHSA – sort of compensation for learning how to help others not get injured and need compensation themselves.

Since those certification and training matters will no longer be provide by WSIB, does that mean employers can expect to see lower premiums?

Posted by Paul Harris

WSIB fails to apply law about CPP benefits

Section 43 of the Act describes how benefit entitlement is to be calculated. Within that, section is the following text:

(5) The calculation of the amount of the payments is subject to the following rules:

2. The amount described by clause (2)(b) must reflect any disability payments paid to the worker under the Canada Pension Plan or the Québec Pension Plan in respect of the injury.

This seems to be a clear statement of the legislature’s intent – in law, as you know, the word ‘must’ is not negotiable. That is, if a compensable injury also attracts benefits under the Canada (or Québec) Pension Plan, then WSIB benefits are to be offset by an equal amount.

WSIB Case Managers routinely and regularly, almost without fail, do not take CPP/QPP payments into account when calculating WSIB payments. Indeed, they regularly tell employers or their representatives that they don’t ask the worker if s/he has applied, or suggest to the worker that they should. We fail to see how the Board can accurately apply the law if Case Managers are choosing to overlook the necessity of pursuing possible CPP/QPP confirmation from workers who appear likely to qualify for those benefits.

WSIB Policy 18-01-13 states:

Loss of Earnings (LOE)
The Workplace Safety and Insurance Act provides:
When calculating LOE benefits, the amount of net average earnings the worker is able to earn in suitable and available employment or business after the injury must reflect any disability payments paid to the worker under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP) in respect of the injury.

Future Economic Loss (FEL)
The Workers’ Compensation Act provides:
When calculating FEL benefits and determining the amount of net average earnings the worker is able to earn in suitable and available employment after the injury, the WSIB must have regard to any disability payments the worker may receive for the injury under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP).

[Note we haven’t added the emphasis – that’s the way it is in the published policy. We presume, therefore, the Board of Directors (who approve policies) really mean it.]

It matters. For Schedule I employers, they are bearing at least part of a burden that the Act says they should not. For Schedule 2 employers, they are paying the full freight for WSIB ignoring its own legislation.

Posted by Paul Harris

Potential changes to workplace safety In Ontario

In late December, 2010, a 10-person Expert Advisory Panel on Occupational Health And Safety released a wide-ranging report recommending significant changes to the OHS system in Ontario. Amongst the recommendations, many of which are expected to result in structural changes to the OHS system or amendments to OHS legislation in the next year are that:
[custom_list style=”list-10″]

  • the government create a new prevention organization to focus the OHS system, increase available information to the employer community, reward and accredit positive health and safety systems by employers;
  • mandatory training for new workers, supervisors, health and safety representatives be required;
  • enforcement be more stringent for businesses that engage in “serious and willful” contraventions;
  • changes to procedures for worker complaints of reprisal, or adverse employer action when they report a health and safety concern, and that prosecutions for reprisals occur;
  • mandatory fall protection training be required;
  • administrative monetary penalties be imposed by tribunals, in addition to court-imposed fines.

[/custom_list]
For the complete Heenan Blaikie OHS Group analysis of potential future changes, READ MORE.

Posted by Cheryl Edwards