Health and Safety

Bill C-12
Submission of the Canadian Labour Congress to the Standing Senate Committee on Social Affairs, Science and Technology

Kenneth V. Georgetti, President/Président
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The Canadian Labour Congress represents 2.3 million workers in both public and private sectors across Canada. Part II of the Canada Labour Code is important for two reasons. First, the Canada Labour Code covers about 1.1 million Canadian workers; the federal workplace jurisdiction is the fourth largest in the country, after Ontario, Québec and British Columbia. Second, many parties, including the CLC, have regarded the federal Code as the proper "flagship" or national leader in industrial relations and labour standards.

The CLC appreciates that the members of the Senate Committee have made Bill C-12 a priority and hopes that the Bill will pass into law with the maximum speed. The Bill does not establish the federal government as the national leader in health and safety but it does come close to it in several ways. The Bill also represents six years of constructive work between the labour movement, business and Human Resources Development Canada (HRDC). Many of the items in the Bill are the result of tripartite consensus. Where no consensus was reached, the government has made unilateral moves on the so-called non-consensus items. Most of these non-consensus items are acceptable to labour and, we believe, to business.

The message we are bringing to the members of the Standing Senate Committee on Social Affairs, Science and Technology is to report back to the Senate that the workplace parties are supportive of the proposed amendments to the Canada Labour Code, Part II.

For the record, we want to express our position on three issues which we would have preferred to see more comprehensive coverage under the law. We already indicated our position to the government and to the House of Commons Standing Committee on Natural Resources and Government Operations.

1. The Appeals Procedure in C-12 [Secs. 145.1(1) to 146.5]

Originally, both employers and workers agreed that there should be a two-tier system for appeals in all cases, i.e., including discipline cases and appeals against health and safety officers’ directions. The first tier would be to the Regional Safety Officer (RSO) or the equivalent and the second to the Canada Industrial Relations Board (CIRB). This procedure would allow easily resolvable issues to be dealt with at the first level, without the quasi-judicial procedure of the CIRB. The latter is necessary, however, so that all issues can be dealt with impartially and effectively, by a body external to HRD. We envisage a CIRB procedure similar to that laid down in the revised Part I of the Code: cases would be handled by a CIRB member with two part-time "wing people" to hear cases, or a series of cases, in health and safety.

The government rejected this procedure in favour of a single appeal to an Appeals Officer within HRDC . Even then, the government has not done what it said that it would do. In a letter to labour and business from the then ADM Nicole Senecal dated July 12 1996, the ADM Labour Branch stated that it was the government’s intention to "move the Appeals Officer function to a reformed CLRB as soon as that proves appropriate". Well ,the CLRB (now the CIRB) has been reformed as a result of the revised Part I of the Code, but Part II has not caught up with the new reality.
Without an external appeal mechanism, HRDC (Labour, OSH) would be reviewing its own decisions. This would violate the principle of natural justice. Fairness dictates that there should always be an external, independent review of an administrative decision.

The Public Service Alliance of Canada also expressed concerns on the appeal process for federal public service employees. Currently, some public service employees must submit their appeals to the Public Service Staff Relations Board which has no particular expertise in health and safety matters. The appeal process should be made consistent in its application so that federal employers and employees are treated efficiently and uniformly by a Board with broad experience in health and safety matters. The new process could be achieved through a consequential amendment to the Financial Administration Act.

Similarly, we suggest that a consequential amendment to the Parliamentary Employment Staff Relations Act be made so that matters relating to parliamentary employees under Part II of the Canada Labour Code are directed to the Canada Industrial Relations Board.

Recommendation 1: Substitute CIRB for appeals officer in 145.1(1) to 146.5 (the essential change).

Recommendation 2: Restore the two-tier appeal system by inserting a further stage at the level of RSO and before the appeal to the CIRB.

Recommendation 3: That a consequential amendment be enacted to the Financial Administration Act so that matters relating to Part II of the Canada Labour Code that are currently referred to the Public Service Staff Relations Board would instead be referred to the Canada Industrial Relations Board, thus creating a more efficient and uniform treatment of employers and employees under federal jurisdiction.

Recommendation 4: That a consequential amendment be enacted to the Parliamentary Employment and Staff Relations Act so that matters relating to Part II of the Canada Labour Code for parliamentary employees would be referred to the Canada Industrial Relations Board.

Having outlined our position, we are hopeful after recent discussions with the Minister of Labour, that this issue can be resolved to the satisfaction of all parties.

2. Pregnant and Nursing Employees, Section 132

The amendments contained in Bill C-12 regarding Pregnant and Nursing Employees are a positive step forward, however they do not go far enough to provide the necessary health and safety protection for these workers. It is our belief that if it is impossible to accommodate a pregnant or breast-feeding woman by suitably altering her duties, adjusting her work station or temporarily reassigning her, then she should be entitled to a leave of absence with pay and benefits.

Currently only Québec has established a program for Protective Reassignment that is supported by legislation. This program is called "Safe Working Conditions for a Safe Maternity Experience" or "Travailler en sécurité pour une maternité sans danger" and it is under the Québec provincial Occupational Health and Safety Act .
It is under this legislation that a pregnant or breast-feeding woman has the right to be immediately reassigned to other tasks that are safe and reasonably within her abilities to perform if her working conditions could adversely affect her own health or that of her fetus or breast-fed child. The modification of the workstation or the reassignment to another job is considered first. Failing that, the worker is entitled to a temporary leave of absence and to receive an indemnity from la Commission de la santé et de la sécurité de travail du Québec (CSST).

Both the Fédération des travailleurs et travailleuses du Québec (FTQ) and the Public Service Alliance of Canada (PSAC) have endorsed the position that pregnant and breast-feeding workers be entitled to fully paid leave and benefits after efforts to accommodate these workers have failed. The Public Service Alliance of Canada also believes that a new federal regime could be established within HRDC to cover all costs required to establish a case and compensate the pregnant worker. The new regime could be established by amending existing sections of the Canada Labour Code, Part II or through the Government Employees Compensation Act which is presently under review.

3. Health and Safety of Parliament Workers

The Canadian Labour Congress strongly supports the Public Service Alliance of Canada in the ongoing campaign to provide Parliament employees with basic health and safety rights.
The Government’s refusal to provide basic legal health and safety protection to Parliament workers is unacceptable. This unjust situation must be remedied immediately. Parliament workers must be provided with the same basic level of protection as other workers across the country. The employees who work in provincial and territorial legislatures across Canada are all covered by their respective legislation. South of the border, the U.S. Congress in January 1995 unanimously adopted legislation which would subject the Congress to all labour laws, including health and safety.

The CLC supports PSAC in its recommendation that Part III of the Parliamentary Employment and Staff Relations Act be proclaimed into force and the wording in Section 123 of the current Part II of the Canada Labour Code be changed to reflect its application to persons in the public service under the Financial Administration Act and to persons covered by the Parliamentary Employment and Staff Relations Act.

Conclusion

We are already working on two separate tripartite working groups, drafting new regulations on Prevention Programs and Violence Prevention in the Workplace. Once this work is completed, we hope to start working on drafting new ergonomics regulations for the federal jurisdiction.

Considering the work that still needs to be done, we urge the Senate to expedite passage of this important piece of legislation.
All of which is respectfully submitted by the Canadian Labour Congress.

Signed by Kenneth V. Georgetti, President
Signed by Nancy Riche, Secretary-Treasurer
Signed by Hassan Yussuff, Executive Vice-President
Signed by Jean-Claude Parrot, Executive Vice-President