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Koskie Makes Submissions to Senate Committee

Senate Video
I appeared before the Standing Senate Committee on Social Affairs, Science and Technology in Ottawa, ON, on Wednesday, November 27, 2013. The Committee asked me to give my views on Division 5 of Part 3 of Bill C-4, A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on March 21, 2013 and Other Measures. This Bill will amend provisions of The Canada Labour Code. The following are my notes for my oral submission to the Senate Committee. In addition, I provided both an overview and clause by clause comparative analysis of the amendments and Code.

[1] Thank you for inviting me to present my views.

a) It is an honour.

b) It is a duty I take seriously.

[2] Asked to comment on only a small part of Bill C-4.

a) It is a budget implementation Bill.

b) Yet, it affects provisions related to health and safety.

[3] In the material I have provided, I have not only tried to give:

a) a tool for visually seeing the changes, but

b) an overview of what I see as the 3 or perhaps two significant changes:

i) definition of danger;

ii) a change in the role of the Minister; and

iii) a Detailing and perhaps creating a higher onus upon employers.

[4] The intent of the amendments not stated.

a) The provisions appear designed to assert a different command and control structure.

b) The proof lies in the details that we simply do not have.

[5] At this juncture, it bears noting there is a component beyond investigation and enforcement.

a) The best investment is prevention.

[6] I can speak best about SK.

a) We have the 2nd highest injury rate in Canada–MB is the highest.

b) Some say that is a result of an attitude and culture in terms of risk taking–“let’s get it done,” rather than safely.

c) Education about work place safety needs to be heightened.

i) I would like to see inclusion in the Bill to do that.

I. DEFINITION OF DANGER

[7] The new definition is significantly narrowed from the previous one;

a) “imminent” and/or “serious” threats instead of “potential” ones;

b) concern effect of term “imminent” will preclude future dangers or future effects of dangers from inclusion; and

c) while language is “imminent or serious,” it is not certain the two terms will be treated on an “and/or” mutually exclusive or necessarily connected basis.

i) The latter would almost certainly preclude future dangers/dangerous effects.

[8] The new term “health of a person” vs. old expression “injury or illness”:

a) could encompass broader deletions.

[9] The new definition may not adequately anticipate “exposure to a hazardous substance” since such exposure may be at odds with “imminency”;

a) careful management of how ‘exposure’ fits into definition of danger is critical.

i) many workers are exposed to noxious substances which can often involve later-onset of symptoms and consequent health problems;

b) however, since language is imminent or serious, exposure to such substances may be covered under the latter.

[10] With respect to the definition of danger:

a) The Minister of Labor says 80% of refusals to work determined to be situations of no danger, even after allowing appeals.

b) Perhaps the new legislation would afford the resources and time available to prevent major accidents, even if it sacrifices access of the breadth of minor complaints that may arise from much less serious ‘potential’ workplace hazards.

c) Nothing in the current, nor amended, versions of the Code precludes unions and employers from negotiating a different protector provision as part of the collective bargaining procedure. Such separately negotiated provisions could expand or alter the operating definition of ‘danger’ that would appear in the amended legislation.

d) The appellate procedure is not altered. As such, problems encountered during the respective investigation, or decision/directive states of complaints are ultimately addressed in the same manner as under the existing provisions of the Code.

II. ROLE OF THE MINISTER

[11] Essentially, the Minister assumes oversight of all functions that previously were assigned to health and safety officers.

a) Thereby, the individuals who the Minister delegates these abilities to will assume the position previously occupied exclusively by health and safety officers.

[12] I have listed some perceived procedural problems stemming from the broad discretion and latitude currently provided to health and safety officers.

a) May also be:

i) efficiency issues;

ii) be expertise issues.

[13] In practice, the negative consequences of this framework seem to have been that officers do not appear to have adequate time or resources to deal with breadth of complaints presented to them for investigation.

a) The result is that a multitude of investigations are dismissed on the basis of information being too difficult to obtain.

b) This is particularly damaging to marginalized persons and members of cultural minorities since gathering information from these groups can be subject to cultural differences which, in some cases, necessitates extra time being spent considering and navigating these differences.

c) The breadth of dismissed cases appears symptomatic of an overloaded system, and perhaps illustrates the need for distillation at a legislative level.

[14] Ministerial oversight, as proposed by the amendments, may solve the aforementioned problems since centralization should ensure an approach that is more consistent procedurally, and in its application;

a) however, the potential negative consequence of centralization is that responsiveness may not be optimized.

[15] With respect to the increased role of the Minister, the criticisms have centered around worries about politicization and resulting partisanship.

a) There is nothing to suggest that this will preclude the most highly qualified individuals from obtaining the position.


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