By Goldie Bassi Canadian Occupational Safety
By Goldie Bassi Canadian Occupational Safety
Bill 160, which amended the Occupational Health and Safety Act (OHSA) and Workplace Safety and Insurance Act (WSIA), received Royal Assent on June 1, 2011. Some of the amendments are already in effect; the remainder of the amendments are to come into effect on a date to be proclaimed by the lieutenant governor, with specific amendments automatically coming into effect on April 1, 2012.
Bill 160 strives to implement many of the fundamental recommendations made by the Expert Advisory Panel on Occupational Health and Safety in December of 2010. One of these recommendations relates to the Workplace Safety Insurance Board’s (WSIB) statutory role in the prevention of injury and illness. The amendments under Bill 160 have removed the responsibility of prevention from the WSIB and returned it to the Ministry of Labour (MOL).
This has raised some concerns amongst a wide range of stakeholders.
The MOL’s new role under the amendments requires the creation of a Prevention Council and the appointment of a chief prevention officer. The mandate of this council, which will be composed of a wide range of representatives from the industry, will be to advise the Minister of Labour and the chief prevention officer on the prevention of occupational-related injuries, illnesses and diseases. The Prevention Council may advise on a number of matters, including funding and delivery of prevention-related programs and services, and the appointment of the chief prevention officer.
The chief prevention officer will have a rigorous mandate for developing a province-wide OHS strategy and monitoring its success. The amendments enumerate several powers and responsibilities specific to the chief prevention officer, such as: establishing training standards; approving training providers; providing advice to the minister of labour on the funding and delivery of prevention programs; and reporting OHS achievements to the minister of labour on an annual basis.
The MOL’s new prevention role has caused some controversy, with stakeholders raising arguments both in favour and against the shift in responsibility. Some arguments in support of the shift include the following:
• Since the primary objective of the OHSA is worker safety and accident prevention, the MOL is in a good position to take on a complementary preventative role.
• The WSIA’s primary function is worker’s compensation and rehabilitation, and is therefore less proactive.
• The WSIB to some extent relies on the experience rating system as a preventative tool. Some believe that simply targeting employers with lower experience ratings hinders the WSIB from taking a more proactive role in prevention.
• On the other hand, the MOL – through a separate prevention arm – could focus on a proactive rather than reactive prevention agenda.
Some arguments against the shift in responsibility to the MOL include the following:
• Under the Bill 160 amendments, employers will continue to fund the prevention system and Safe Work Associations through their WSIB premiums. The WSIB will then forward the prevention component of the premiums to the Ministry of Finance, which will in turn transfer the funds to the Ministry of Labour, resulting in a long paper trail and co-mingling of funds. This raises questions of financial accountability and transparency. Although Minister Sousa has promised full accountability to employers for their investments, the cause for concern is not without merit.
• There appears to be a lack of justification for the resulting disruption in preventative services from the WSIB, in light of the fact that the WSIB has seen some success since assuming responsibility for prevention in 1998 from the MOL. Some argue that the shift will cause a loss in the momentum gained by the WSIB in its prevention efforts over the last decade.
• Finally, concerns have been raised with respect to information sharing between the Prevention Council and the enforcement branch of the MOL, which may dissuade some members of the industry from actively partaking in the MOL’s prevention initiatives for fear of a penalty. However, establishing conditions and placing limits on any information sharing between the two departments could alleviate such concerns.
It is too early to assess the full impact of the shift in responsibility for prevention from the hands of the WSIB to the MOL. There are some clear causes for concern, but also some potential benefits. Of interim importance, however, are issues such as how the new system will function and the extent of its reach. For instance, will it include a hands-on component that will see employers receiving assistance on the ground from “prevention officers” without fear of information sharing and penal ramifications?
Goldie Bassi is an associate lawyer at Gowlings, LLP. She can be reached at firstname.lastname@example.org. This article was originally published on Canadian Occupational Safety magazine’s website, www.cos-mag.com.