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Schedule 16 must be scrapped: A submission on the Ontario government’s Bill 70 (Budget Measures)

Schedule 16 must be scrapped: A submission on the Ontario government’s Bill 70 (Budget Measures)

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A submission on the Ontario government’s Bill 70 (Budget Measures) from the Ontario Public Service Employees Union

December 1, 2016

Introduction

The Ontario Public Service Employees Union (OPSEU) offers this submission with respect to Schedule 16 of Bill 70 (Budget Measures), currently before the Ontario legislature.

OPSEU is deeply disappointed that Bill 70 is being rushed through the legislature. The changes to the Occupational Health and Safety Act included in Schedule 16 are of great consequence to all Ontario workers, worker health and safety representatives, joint health and safety committees, trade unions, and other stakeholders. Yet Schedule 16 is being passed into law without meaningful consultation from any of them. Introduced on November 16, 2016, the bill was given just one afternoon of committee hearings on December 1, after Second Reading.

Those who managed to present to the committee received just a few hours’ notice that they would be invited to do so. Schedule 16 will have far-reaching effects that could potentially touch every workplace in the province. It deserves much more analysis, discussion and debate than it has received.

OPSEU represents more than 130,000 members throughout the province in the Ontario Public Service, in the Broader Public Service, and in Ontario’s publicly run Colleges of Applied Arts and Technology.

Among those 130,000 members, OPSEU also represents approximately 400 occupational health and safety inspectors with the Ontario Ministry of Labour (MOL), whose job it is to enforce health and safety legislation to keep workers safe. Our MOL inspectors are dedicated and passionate about protecting workers’ safety.

In fact, our entire union is passionate about health and safety. On December 1, OPSEU Region 1 Regional Vice-President Len Elliott, himself an occupational health and safety officer, spoke to the standing committee holding the hearings into Bill 70. The submission included in this document is meant to incorporate and expand on his presentation.

The measures proposed in Schedule 16 of Bill 70 to amend the Occupational Health and Safety Act, will negatively affect all OPSEU members. But beyond our membership, these changes have the potential to result in injuries, occupational diseases, and deaths for workers across Ontario.

Schedule 16 gives the Chief Prevention Officer (CPO) the ability to accredit a “health and safety management system” for use in Ontario workplaces and then recognize employers who use an accredited health and safety management system. It also proposes that the CPO should have the power to designate persons outside the ministry to look after accreditation and the many duties related to certification training.

In introducing Schedule 16, the Ministry of Labour sent out an email that states that the ministry wants to “lessen the burden on employers by taking away unnecessary proactive inspections.”

Proactive inspections are a critical part of MOL enforcement

MOL inspectors do tens of thousands of inspections each year, including thousands of proactive inspections. During these proactive inspections, occupational health and safety officers write thousands of orders for contraventions of the OHSA that would otherwise NOT have been addressed. These are workplaces that could easily receive accreditation under the new rules in Bill 16 – thereby avoiding proactive inspections entirely.

It is not unusual for employers to receive awards or be accredited even though their workplaces are horribly unsafe. Look no farther than the Westray mine disaster. Westray received the John T. Ryan safety award (for the second year in a row) just 11 days before 26 miners were killed in an early morning explosion at the mine. Tragically, the worker that the company sent to get the award was one of the twenty-six miners who died in the May 9, 1992 explosion.

Proactive inspections are very important in the MOL enforcement program. Inspectors need to actually see the way employers run their operations in order to determine if a given workplace is operating safely. And that can only happen if employers do not get advance notice of an inspector’s audit.

Proactive inspections are vitally important to protect the growing numbers of precarious workers in our province. Many of these workers do not have unions. They do not have job security. They may not know their rights, and even if they do, they are afraid to call the Ministry of Labour. Barring inspectors from proactively inspecting workplaces would have devastating effects on these workers.

Leaving these workers without proactive enforcement does not align with the MOL priority to protect vulnerable workers. Our inspectors have the expertise, experience, and knowledge to do both proactive and reactive inspections. They do them now. Ontario needs both. 

A “health and safety management system” is only a paper plan

As we’ve seen with workplace violence policies and programs, accrediting employers for having a nice set of written guidelines does not make any workplace healthier or safer.

What is needed are measures and procedures that actually prevents injuries and deaths.

Written health and safety systems may appear to include all the right steps, but this does not mean that any of those actions actually occur or are sufficient. For example, a plan to identify and control hazards does not mean that the hazards are adequately controlled in a way that protects workers from harm. Heavy loads may be left intact while the management health and safety plan is to train workers to lift properly. No audit of a health and safety management system will assess whether adequate precautions are actually being taken. The health and safety plan merely lists management’s chosen control, which will be inventoried in an audit and assumed to be appropriate.

What Schedule 16 proposes is a process that is removed from workers, health and safety representatives, and joint health and safety committee (JHSC) members. Moving health and safety prevention to the boardroom to develop a management system moves occupational health and safety farther from workers and from solving problems on the shop floor. It sidelines joint health and safety participation and the collective voice of workers that James Ham noticed as important during the Ham Commission’s review of the health and safety system in the 1970s.

In 1995, the Conservative government of Alberta Premier Ralph Klein implemented an accreditation system for workplace health and safety that essentially wrote workers out of workplace health and safety. The Department of Labour implemented the Partners in Injury Reduction (PIR) program. Alberta employers could be awarded a Certificate of Recognition from an independent auditor employed by an outside, approved partner. While the website proudly states that “one employee from the company participates in training and performs an internal audit,” it is not clear who the employee can be or who selects the employee. Osgoode Hall Law School researcher Eric Tucker (2003) points out that, in Alberta, workers have no right to know workplace audit results or challenge the scores. No points in the audit are contingent on having worker or JHSC involvement in identifying hazards, or in communication. The employer can earn maximum points by stating that it will ensure that two-way communication occurred regarding health and safety – with no rigorous mechanisms to include JHSC or worker input. Workplace safety is assessed by an independent third party that has no power to enforce occupational health and safety in Alberta.

The Occupational Health and Safety Management System (OHSMS) approach gives workers and JHSC “internal auditors” a lesser role similar to that described in the foundational report written by Britain’s Alfred Roben. Roben’s 1972 report envisioned worker participation “not as a check on management’s penchant to stint on health and safety, but rather to accept their full responsibility and to monitor conditions for the purpose of providing information that the employer would act upon (Tucker 2012).” Downgrading worker roles dooms workers to more unsafe and unhealthy workplaces. Ontario’s legislation needs to provide workers and joint health and safety committee members and health and safety representatives with more power in their workplaces, not less.

Implementing health and safety management systems (OHSMS) will make workplaces more dangerous

If employers are to receive breaks due to being accredited through an OHSMS, such as being relieved from proactive MOL inspections, workplaces will become more dangerous.

Workers are put in further harm by decreases in enforcement that occur along with accreditation programs. Tucker (2003) describes how government enforcement expenditures dropped by 40 per cent in Alberta and prosecutions dropped from an average of 39 per year between 1985 and 1988 to an average of only two prosecutions per year between 1995 and 1999, after Alberta implemented accreditation.

Proactive MOL inspections act as a deterrence tool in Ontario’s prevention system because workplaces can be inspected at any time. The deterrence effect of enforcement was recently confirmed in a 2016 systematic review of 43 studies by the Institute for Work & Health (IWH), which found that government inspections with the potential for orders and penalties motivate employers to improve health and safety. Tompa et al. (2016) state that this “reinforces the importance of regulators being out in the field identifying and citing/penalizing non-compliance.”

Doing away with proactive enforcement will give employers free rein to operate away from the view of the health and safety laws, regulations, and rules. Health and safety enforcement in Ontario will become more complaint-driven, with the onus to report violations foisted on workers who will have to call the Ministry of Labour. Workers and unions are not in favour of giving any employers a free pass from health and safety obligations or enforcement from the Ministry of Labour.

Other jurisdictions and OHSMS

Recently in the Ontario legislature, Minister of Labour Kevin Flynn suggested that MPP Jennifer French check out a few other jurisdictions that have implemented accreditation programs to note their success.

First, success would have to be defined to be believed. If success is measured in reduced injury statistics, then OPSEU is not convinced. Injury rates have been debunked as a valid measure of the level of health and safety prevention in a workplace. Injury rates go down for many reasons; workers not reporting, file management by the Workplace Safety and Insurance Board, claims management by employers, behaviour-based safety programs that reward workers for not reporting, and outright employer fraud that keeps wages whole to avoid claims being filed. As stated above, the Alberta experience lacks rigorous worker involvement, so OPSEU is skeptical about the program’s success.

Exploring the alleged success of these programs as Minister Flynn mentioned would be interesting because research on health and safety management systems and their success is sketchy at best. Three studies since 2006 by the Institute for Work & Health found no real evidence to say whether OHSMS (mandatory or voluntary) work or not. Robson and Bigelow (2010) analyzed seventeen audit tools and found gaps and inconsistencies in the tools. They found low inter-rater reliability, i.e., when the tool was used in the same workplace by more than one person, the results were inconsistent. Robson et al. (2010) compared five audit tools to the Canadian Standard Association (CSA) Z1000 and found them lacking or misrepresented.  

Researchers Verna Blewett and Valerie O’Keeffe (2011) studied an occupational health and safety system in Australia and identified many problems with implementing the audit idea (an idea based in finance) to occupational health and safety. They say that health and safety management systems overprescribe work activities and make roles that are unworkable, thereby removing worker discretion to flexibly adapt to hazards they encounter in the workplace. The process lacks worker participation and expertise and generates paperwork for the sake of the audit. The paperwork has little value for action that is necessary to make the workplace healthy and safe. The entire exercise diverts resources that could be used to keep workplaces safe and healthy.

In 1998, the Esso Longford Gas Company in Victoria, Australia passed its accreditation with flying colours according to its auditors (the external Exxon group), yet six months later a fatal explosion killed two people and injured many others. In that case, “development and maintenance of the OHSMS diverted attention from what was actually happening in the practical functioning of the plants” (Blewett and O’Keeffe 2011).

Robson et al’s 2007 systematic review lists numerous flaws in OHSMS, including “false sense of security derived from the presence of formal OHSMS, development of blame-the-worker attitudes, weakening of regulatory enforcement, and a shift in the power balance away from workers toward management.”

Conclusion: Schedule 16 must be scrapped

OPSEU is not convinced – neither by existing research, nor by our own front-line experience – that health and safety management systems will make workers safer. When we assess over 100 years of workplace health and safety in Ontario, we can see that moving health and safety up to be taken care of by employers causes nothing but injuries, occupational disease, and death for workers. Only through worker actions and suffering harm on their own bodies has change been made.

Taking away proactive inspections will further harm Ontario’s workers. The MOL has an irreplaceable duty to enforce health and safety legislation. Workers in every job rely on MOL inspectors to intervene in unsafe workplaces. No employer should get a free pass. 

Workers cannot trust their lives to a private, third-party entity stamping a “pass” based on paper policies that remain in the drawer while workers die or are injured on the floor.

Taking away workers’ rights to check an employer’s system and taking away MOL inspectors’ ability to do proactive enforcement will cause death and injury in Ontario. It is for all of these reasons that Schedule 16 of Bill 70 needs to be scrapped.  

Works cited

Blewett Verna, and Valerie O’Keeffe. 2011. “Weighing the pig never made it heavier: Auditing OHS, social auditing as verification of process in Australia.” Safety Science 49: 1014-1021.

Robson, Lynda S. and Philip L. Bigelow. 2010. “Measurement properties of occupational health and safety management audits: A systemic literature search and traditional literature synthesis.” Canadian Journal of Public Health 101: 534-540.  

Robson, Lynda S., Judith A. Clarke, Kimberley Cullen, Amber Bielecky, Colette Severin, Philip L. Bigelow, Emma Irvin, Anthony Culyer, and Quenby Mahood. 2007. “The effectiveness of occupational health and safety management system interventions: A systematic review.” Safety Science 45: 329-353.

Robson, Lynda S., Sara Macdonald, Dwayne L. Van Eerd, Garry C. Gray, and Philip L. Bigelow. 2010. “Something might be missing from occupational health and safety audits: Findings from a content validity analysis of five audit instruments.” Journal of Occupational and Environmental Medicine

Tompa, Emile, Cristina Kaleevich, Michael Foley, Chris McLeod, Sheilagh Hogg-Johnson, Kim Cullen, Ellen MacEachen, Quenby Mahood, and Emma Irvin. 2016. “A systematic literature review of the effectiveness of occupational health and safety regulatory enforcement.” American Journal of Industrial Medicine 59.11: 919-933.

Tucker, Eric. 2012. "Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom" (2012). Comparative Research in Law & Political Economy. Research Paper No. 38/2012.

Tucker, Eric. 2003. “Diverging trends in worker health and safety protection and participation in Canada: 1985-2000.” Industrial Relations 58.3: 395-426.