Health and Safety

Bill C-12 Submission to the Parliamentary Standing Committee on Natural Resources and Government Operations

by the Public Service Alliance of Canada
May 10, 2000 Ottawa, Canada

INTRODUCTION

The Public Service Alliance of Canada (PSAC) is one of the largest unions representing workers in the federal jurisdiction.

The Public Service Alliance of Canada (PSAC) is the bargaining agent for approximately 140,000 members. About 115,500 of the PSAC members are governed by the Public Service Staff Relations Act (PSSRA), Part I of Schedule I, which includes the government departments and agencies for which Treasury Board is the employer. A further 8,100 members are governed by the PSSRA, Part II of Schedule I; these "separate employers" include the Canadian Food Inspection Agency, National Energy Board, Park Canada Agency, etc. We also have another 10,500 members that are scattered throughout the federal and territorial jurisdictions who are governed by the Canada Labour Code, such as NAV Canada, Nordion International, Royal Canadian Mint and the cities of Whitehorse and Yellowknife. The PSAC also has close to 500 members under the Parliamentary Employment and Staff Relations Act.

The PSAC fully supports the position presented by the Canadian Labour Congress (CLC) and the brief that they have submitted. We are a member of the CLC National Health and Safety Committee and assisted in the drafting of their Brief.

Bill C-12 represents many years of work by the tripartite labour-management-government consultation process that began in 1993. The PSAC was and remains an active member of the legislative and regulatory review Committees where all of our proposals were tabled along with those of management and government representatives. These proposed changes were achieved after extensive discussions and most of the items contained in Bill C-12 were reached by consensus.

The proposed amendments will improve the health and safety of workers under this legislation. However, there are concerns about the Bill that we wish to bring to the attention of the Committee.

I Definition of "Health" Section 122(1)

The definition of "health" contained in Bill C-12 is different from the definition that was reached by the tripartite agreement. Labour’s original proposal was to include the definition of the World Health Organization and International Labour Organization which was previously endorsed by the Government of Canada. Therefore, the definition reached by consensus should be maintained.

We Recommend:

1. That the definition of "health" be changed to: "Health", in relation to work, indicates not merely the absence of disease of infirmity; it also includes the physical and mental elements affecting health which are directly related to safety and occupational hygiene at work.

II. Application Section 123(2)

While most of our members and other workers under the federal jurisdiction currently receive the health and safety protection offered by Part II of the Canada Labour Code and the increased protection proposed by this Bill, we would be remiss to overlook our members and other workers on Parliament Hill who are not covered by this health and safety legislation.

The focus of PSAC’s 1999 April 28th, Day of Mourning Campaign was around the lack of health and safety legislation for Parliament Hill workers. Hopefully, members of this Committee will remember the booklet distributed to all Members of Parliament and Senators at that time.

It was back on June 27, 1986 that the Government passed the Parliamentary Employment and Staff Relations Act (PESRA), a piece of legislation that is limited in its application to employees of the Senate, House of Commons, the Library of Parliament and to workers of Members of Parliament. For whatever reason, the Government in power refused to proclaim more than Part I of PESRA that has left Parliament Hill workers, unlike other Canadian workers, unprotected by a health and safety law.

Part III of the Parliamentary Employment Staff Relations Act includes the same conditions as those under Part II (Occupational Health and Safety) of the Canada Labour Code which would simply extend to all workers of Parliament the same basic occupational health and safety rights and conditions as all other workers who fall under the federal jurisdiction of the Canada Labour Code.

The Government’s inaction in providing 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 that work in the provincial and territorial legislatures across Canada are all covered by their respective provincial/territorial health and safety legislation.
Our neighbours to the south of our border have already settled this question for their employees. In January 1995, the United States Congress unanimously adopted the Congressional Accountability Act of 1995 that subjected the Congress to all labour laws, including health and safety. Many of these members, both Republicans and Democrats, have admitted to the double standards that have applied to various pieces of legislation leaving employees on Capitol Hill without various rights and protection received by other workers across the United States. The American government has admitted their error and has made the effort to right this wrong.

There are Members of Parliament who believe that Parliament could be shut down as a result of a work refusal in the event of a danger if health and safety legislation was to apply. This is a myth. There is a process for investigating and resolving dangerous situations before a work refusal can result in a disruption of the normal operation of Parliament and this will be more evident with the strengthening of the internal responsibility system under Bill C-12. Work refusals under the Canada Labour Code are exercised as a result of individual concerns of danger and would not impact the whole work place. Over 95% of work refusals do not lead to any shut down and no known shut downs have occurred in any of the provincial and territorial legislatures where workers already have this basic health and safety right.

We Recommend:

2. That Part III of the Parliamentary Employment and Staff Relations Act be proclaimed into force and the wording in section 123 of Part II of the Canada Labour Code be changed to reflect the application to persons in the public service under the Financial Administration Act and to persons covered by the Parliamentary Employment and Staff Relations Act.

III. Appeals: [Section 146]

The PSAC agrees with the position taken by the CLC: that there should be a two-tier system for appeals. The first level of appeal would be to the Appeals Officer and the second to the Canada Industrial Relations Board (CIRB). The CIRB level would be composed of a CIRB vice-chair who would be knowledgeable about health and safety matters, and two "wing people", one from labour and one from management, who would also be well versed in health and safety.

We have two comments to add to those of the CLC. Currently, some public service workers 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 workers 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.

We Recommend:

3. That the two-tier appeal system be restored and that the second level of the appeal system should be at the CIRB.

4. 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 workers under federal jurisdiction.

5. 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 workers would be referred to the Canada Industrial Relations Board.

IV. Pregnant and Nursing Workers Section 132

The amendments contained in Bill C-12 regarding Pregnant and Nursing Workers 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 foetus 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).

As an example, consider the unfair treatment of pregnant women employed as federal correctional officers at the Joliette Prison for Women in Québec. At the Joliette Institution, the pregnant workers working under provincial jurisdiction, such as nurses and community workers, are granted paid preventive leave because of the potential for contracting infectious diseases and for the potential of being assaulted by inmates. Yet, federal correctional officers, who most often administer first aid or intervene in emergencies, are not entitled to such paid leave.

The correctional officers at Joliette work with the same clients as the nurses and community workers; they are exposed to the same risks as their provincial counterparts. While the risk to pregnant women and the foetus has been demonstrated for nurses, community workers and provincial correctional officers, and preventative paid leave has been recognized as the solution to protect them; federal correctional officers continue to be exposed to these risks and are denied similar paid leave simply because they are governed by federal legislation. This is unfair, unjust, discriminatory and unacceptable.

We are providing you with a copy of a research document entitled: Pregnant Women: Working in a Prison Environment - researched and written by Sister Annie Aubry, Correctional Officer, Joliette Institution.

It is the PSAC’s position that pregnant and breast-feeding workers be entitled to fully paid leave and benefits after efforts to accommodate these workers have failed. A new federal regime could be established within HRDC to cover all costs required to establish a case and compensate the pregnant worker. This new regime could be established by amending existing sections of Bill C-12 or through the Government Employees Compensation Act which is presently under review.

We Recommend:

6. That the workplace health and safety protection specific to the conditions of the pregnant or nursing worker be provided, with an emphasis placed on modifying the job functions or reassigning of the worker to another suitable job. If this cannot be accomplished, the pregnant or nursing worker must then have the right to fully paid leave until the pregnancy or the nursing is terminated. We would also stipulate that these workers be entitled to the same salary and benefits as in their regular job, and to job protection during the full period of leave through the development of a new federal regime.

7. That a payment scheme be developed similar to that of parental leave, whereby a pregnant or nursing worker who cannot be accommodated be granted fully paid leave.

V. Regulation on Violence in the Workplace Section 125 (z.16)

The consensus agreement between the tripartite legislative review committee was to include a regulation on a violence prevention program. Clearly, the proposed provision does not explicitly state the requirements for the development of a violence prevention program.

The recent Coroner’s jury recommendations on the OC Transpo shootings in Ottawa, clearly define the need for a violence prevention program. Such a program would require the full participation with the Policy or Workplace health and safety committees or representatives in developing, implementing, and monitoring of such a program.

We recommend:

8. That section 125, paragraph (z.16) be revised as follows: "Every employer shall, in respect of every workplace develop, implement and monitor in collaboration with the policy committee, or if there is no policy committee with the work place committee or the health and safety representative a prescribed program for the prevention and protection against violence in the work place."

9. That section 134.1 paragraph (4)(c) be revised as follows: "shall participate in the developing, implementing and monitoring of programs for the prevention of hazards in the work place and for the prevention of violence in the work place that also provides for the education of employees in health and safety matters related to those hazards".

VI. Regulation on Ergonomics Section 125(t) and (u)

Bill C-12 includes references to Ergonomics Regulations. Clearly there is a recognition that ergonomics is an important element in any prevention strategy that aims at a significant reduction of injuries. Since the legislation does refer to prescribed ergonomic standards, we need to develop a new ergonomic regulation for the federal jurisdiction.

There are already two provinces in Canada, namely Saskatchewan and British Columbia, who have taken a lead role in this area by introducing legislation to address the issue of ergonomics and musculoskeletal disorders.

Many employers already see this as an important issue, including Treasury Board who, as an employer deemed it necessary to develop an information bulletin entitled "Ergonomics: making the work and the place fit the people." (1993) The document states that poor ergonomics in the workplace has been linked to occupational ailments such as stress, visual fatigue, back strain and shoulder, arm and hand strain. There is also a guide entitled, A Guide on Video Display Terminals (VDTs) in the Treasury Board Manual, Chapter 5-5 (1994) that addresses some concerns around ergonomics and VDTs.

The United States (U.S.) Occupational Safety and Health Administration (OSHA) has recently proposed its new ergonomic program standard on November 23, 1999 and other states are developing ergonomic regulations.

The government must take a leadership role in the development of legislation in Canada. In doing so, the government would protect workers under the federal jurisdiction and could influence the remaining provincial and territorial jurisdictions to follow its progressive lead in this area of health and safety to reduce the significant risks of work-related musculoskeletal disorders.

We Recommend:

10.That, as a priority, an Ergonomic regulation be developed through the Regulatory Review Committee process.

VII. FEES Section 156.1(1)

This new proposed provision on fees for services, facilities and products provided by the Minister under this Part or within the purpose of this Part was not part of the original agreement during the Legislative Review consultation process.

We strongly believe that services rendered by HRDC-Labour as part of the duties required by Health & Safety Officers should not be subject to service charges. Workers and employers should have full access to the resources offered by HRDC-Labour under the legislation in order to maintain that work places are in compliance with the Code. It is our view that the introduction of fees would jeopardize the object of Part II of the Code.

We recommend:

11. That fees for services, facilities and products under Part II of the Canada Labour Code not be charged and therefore the proposed Section 156.(1) and 156.(2) of Bill C-12 be deleted.

VIII. ENFORCEMENT Section

We would also like to address the issue of enforcement which must be given the utmost priority. It is clearly apparent to us that there is an extreme shortage of Health & Safety inspectors to adequately meet the needs of workers currently covered by the Canada Labour Code. With the number of workers and the increased responsibilities under Bill C-12, a larger inspectorate will be required even more than ever.

For many years the PSAC has expressed concern with the issuance of AVCs and the failure to ensure the corrective actions specified in the AVCs. We need to go back to the tripartite agreement which is the elimination of the use of AVCs and the exclusive usage of direction as the main enforcement mechanism. It is our belief that directions should be issued when there are violations to the law and its regulations.

Another concern is with the regionalization of HRDC-OSH. This has meant that each region is autonomous resulting in a lack of consistency in compliance and enforcement from one region to another.

We Recommend:

12. That HRDC-Labour increase the number of Health and Safety Inspectors to meet the current needs of the legislation.

13. That HRDC-Labour must eliminate the use of Assurances of Voluntary Compliance (AVCs) as an enforcement tool and issue directions and penalties where violations exist.

14. That HRDC-OSH programs be centralized to ensure fairness and consistency.

IX. CONCLUSION

We welcome Bill C-12, as we see many positive changes in this piece of legislation. We have waited long enough. We want to see it passed into law.

Year after year there are close to a thousand fatalities and millions of injuries per year in Canada. The direct and indirect costs of work place accidents and fatalities are overwhelming. The amendments to the Code in addition to the recommendations we have provided are a significant step forward in improving health and safety legislation for workers who are protected under Part II of the Canada Labour Code.