NRGO Committee Meeting

STANDING COMMITTEE ON NATURAL RESOURCES AND GOVERNMENT OPERATIONS

COMITÉ PERMANENT DES RESSOURCES NATURELLES ET DES OPÉRATIONS GOUVERNEMENTALES

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 10, 2000

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[English]

The Chair (Mr. Joseph Volpe (Eglinton—Lawrence, Lib.)): We are resuming consideration of Bill C-12, an act to amend the Canada Labour Code (Part II) in respect of occupational health and safety, to make technical amendments to the Canada Labour Code (Part I), and to make consequential amendments to other acts.

We have with us today representatives of the Public Service Alliance of Canada. They are represented by Madame Nycole Turmel, the présidente. She's joined at the table by people from her association as well. I believe they are Louise Hall,

[Translation]

the Coordinator of the Program Section; and Denis St-Jean, a Health and Security Agent, Program Section. Welcome.

I would also like to welcome the national representative of the Canadian Union of Postal Workers, Mr. Jeff Bennie, whom we know already since he testified here yesterday although he was wearing another hat, as we say in English. I would like to welcome you once again, Mr. Bennie.

The Canadian Union of Public Employees is represented by Anthony Pizzino, who is the Director of Health and Safety Services. Welcome, Mr. Pizzino.

I would like to introduce you to Mr. Réginald Bélair, representing all of Northern Ontario.

[English]

Mr. Réginald Bélair (Timmins—James Bay, Lib.): I've identified my witness for—

The Chair: It could be either one; it doesn't matter. We know who you are.

[Translation]

Finally, I would like to introduce Ms. Cathy Walker

[English]

from the Canadian Auto Workers. She is the director of the union. Welcome.

Mr. Brazier, is there somebody else you want to have join you?

Mr. Don V. Brazier (Executive Director, Federally Regulated Employers - Transportations and Communications (FETCO)): There are two of us.

The Chair: Where is that other person? Please come and sit over here. There's lots of room. You'll sit with the members. They'll feel comfortable. You'll make it look like the government side has enough members.

From the Federally Regulated Employers - Transportations and Communications (FETCO), we have Mr. Don Brazier, executive director, and.... Is that Mr. Normand Côté?

Mr. Harry Phillips (Director, Safety and Environment, Canadian Broadcasting Corporation, Federally Regulated Employers - Transportations and Communications (FETCO)): Harry Phillips.

The Chair: Okay. So Normand Côté is not here. Mr. Harry Phillips is the director of safety and environment, Canadian Broadcasting Corporation. We will anticipate later on having Madame Katherine Lippel from the Université du Québec à Montréal.

[Translation]

Ms. Turmel, I would invite you to introduce the person who is accompanying you.

Ms. Nycole Turmel (President, Public Service Alliance of Canada): This is Annie Aubry, a correctional officer and a member of the Public Service Alliance.

[English]

The Chair: Thank you very much.

Welcome to each and every one of you, and thank you for your patience and understanding. This appears to be confusion, but it isn't. We were just trying to get a much larger room in order to accommodate all of you in this round table.

I think you've already been advised of what we'd like to do. Our intention is to get the benefit of your insights and your expertise on any and all of the amendments that are proposed under this bill. You don't have to follow our hopes, but we hope you'll be able to focus your attention on the items you'd like to see changed, maybe some items you'd like to see appended, or even items you'd like to see deleted. If you don't have anything positive or negative to say but you have a general expression of principle, that's welcome too.

Madame Turmel, I guess you'll be the one representing your group, even though the others are sitting at the table.

I'm going to ask all of you to come forward for about 10 minutes. You don't really need to go that long. You may wish to go longer. I'm going to stop you if you do. I hope you'll stay at about 10 minutes, and then we're going to go into questions and answers with members around the table. Again, I don't want to judge for other members, but I think you'll be most helpful for all of us if you'll focus on those very specific items.

Why don't we go this way and start with Madame Turmel? I'm not being sexist; she's just the one I see first.

• 1550

[Translation]

Ms. Nycole Turmel: Thank you, Mr. Chairman. We would like to thank the committee for giving us the opportunity to present this brief on behalf of the Public Service Alliance of Canada. Before making our presentation, we would like to urge you, owing to the importance of the amendments proposed in Bill C-12, to ensure that it is adopted before the House adjourns for the summer.

I understood your explanations, Mr. Chairman, but I would like to point out our concern about the process followed by the parliamentary committee, whereby many representatives are invited to sit at the same table in order to present their briefs. These briefs are important, and each organization should be given the time it needs in order to present them.

[English]

PSAC fully supports the position presented by the Canadian Labour Congress, including the definition of health, reporting of contraventions, medical examinations and tests, disciplinary action, the consensus agreements on new regulations, sectorial regulations, the Canadian Centre for Occupational Health and Safety, and the administration of health and safety.

[Translation]

We will be focussing on issues that have a direct impact on our members, namely, pregnant or nursing workers, the health and safety of Parliament employees and the appeal procedure.

As you already know, Bill C-12 represents many years of work by the tripartite consultation process that began in 1983. The PSAC was and remains an active member of the legislative and regulatory review committees.

First of all, I am going to talk about pregnant and nursing workers. 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 Quebec has established a program for protective reassignment that is supported by legislation. This program is called “Safe Working Conditions for a Safe Maternity Experience” and it is under the Quebec provincial Occupational Health and Safety Act.

This program does not apply to federal employees working in Quebec in various high-risk professions. More specifically, federal correctional officers in all federal institutions in Quebec are not entitled to such protection. Let us take the example of unfair treatment given to a pregnant woman employed by the federal government as a correctional officer at the Joliette Prison for Women in Quebec. At the Joliette Institution, the pregnant workers under provincial jurisdiction, such as nurses and community workers, are granted paid preventive leave because of the potential for contracting infectious diseases 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 preventive 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 have provided you with a copy of a research document entitled: Pregnant Women: Working in the Prison Environment—researched and written by my union sister, Annie Aubry, correctional officer, Joliette Institution, and a member of the Union for Solicitor General Employees. Annie is here with us today.

It is the position of the PSAC that pregnant and breast- feeding workings 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.

• 1555

I will now turn to the second part of our presentation, which focusses on the health and safety of workers on Parliament Hill.

[English]

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 on Parliament Hill who are not covered by this health and safety legislation.

The focus of the PSAC's April 28, 1999 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.

[Translation]

It was back on June 27, 1986 that the government passed the Parliamentary Employment and Staff Relations Act, a piece of legislation that is limited in its applications 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 this Act 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 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/health and safety legislation.

The last part of our presentation will deal with appeals. 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...

[English]

The Chair: Maybe I should interrupt you while you're on that positive note. It seems that despite the fact that you read and enunciate really well in both languages, we've already consumed over 12 minutes.

Can I make a suggestion that perhaps we take this document of yours “as read”, which means it will be written into the record, and so all members and anybody who looks into the Hansard will see that your document is there, and ask that you maybe address it as we go through with questions and answers.

Ms. Nycole Turmel: I recognize that, as long as it is in the report of the committee, and I'll just make my point that, for this big legislation, it's really sad we don't have the time to address it.

The Chair: It's a point well received. I can assure you that all of this will be in the evidence. Okay?

Statement by Public Service Alliance of Canada:

Submission to the Parliamentary Standing Committee on Natural Resources and Government Operations on Bill C-12, an act to amend the Canada Labour Code (Part II) in respect of occupational health and safety.

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, Parks 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 28, 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 is 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 Quebec 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 Quebec 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 work station 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 Quebec. 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 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 already 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 in 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.

The Chair: Let me go to Madame Walker, from the Canadian Auto Workers.

It's the same thing, madame. If you want to read a large document—and this is for everybody—the documents will all be read into the record, and so they'll all be there as part of the evidence. That's why I suggested maybe just focusing on the items to which you want to attract the attention of the committee.

Ms. Cathy Walker (Director, Canadian Auto Workers): Certainly.

Thank you very much for the opportunity to present here this afternoon. I will give you a written copy of our presentation, but I will only address several of the issues. I certainly support the submission of the PSAC, and we indicate that in writing in our submission.

Statement by Canadian Auto Workers:

Introduction

The Canadian Auto Workers is the largest private sector union in Canada and one of the largest unions representing workers in the federal jurisdiction. In the federal jurisdiction, we represent workers in the airline industry, rail, trucking, couriers, marine, bus transportation, armoured cars, telecommunications, and even workers in federally regulated coal mines. We have a keen interest in protecting the health and safety of our members in the federal jurisdiction.

The CAW has been an active participant in the Legislative and Regulatory Review Committees that drafted the recommendations that became Bill C-12 as well as the regulations which are mentioned in the bill. We are a part of the Canadian Labour Congress Health and Safety Committee, helping to draft the CLC submission which we fully support.

In most respects, Bill C-12 represents progress in protecting the health and safety of workers in the federal jurisdiction. There are, however, some proposed amendments to Part 2 of the Canadian Labour Code contained in Bill C-12 that do not reflect the tripartite consensus of the Legislative Review Committee and which will erode workers' health and safety rights. As well, there are some additional points which we must emphasize to the Parliamentary Committee which we hope will make clear the importance of the issues.

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

The original consensus between labour and employers provided for a two-tier appeal system. Appeals would be for both appeals of directions by health and safety officers and for discipline in health and safety matters. The first tier would be an internal Human Resources Development Canada (HRDC) appeal to the Regional Safety Officer (RSO) and the second tier would be to the Canada Industrial Relations Board (CIRB). The CIRB level would be a CIRB vice-chair who would be well versed in health and safety matters with two part time wingers, one from labour and one from management who would be experienced in health and safety matters.

Bill C-12 proposes to replace the agreement between employers and labour with a one-stage appeal system which would be entirely internal. We disagree. We want to see the two-stage appeal system restored. Natural justice requires that there be an appeal system external to the administrative agency whose decision is being appealed.

Recommendation 1: substitute CIRB for appeals officer in 145.1 to 146.5

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

2. The Definition of Health (Sec. 2(5) of the Canada labour Code, Part 1)

The proposed definition of “health” in Bill C-12 makes no sense. It reflects no medical or dictionary definition of health anywhere. We are better off with no definition of health than with this one.

The World Health Organization and the International Labour Organization have a much better definition of health, which is the “highest state of physical, mental and social well being”.

The tripartite consensus of the Legislative Review Committee was to adopt the following definition, which should be included in the amendments to the Code:

Recommendation 3: the definition of health should be changed to:

“Health”, in relation to work, indicates not merely the absence of disease or infirmity; it also includes the physical and mental elements affecting health which are directly related to health and (occupational) hygiene at work.

3. Reporting of Contraventions (Secs. 126.(1)(g) and 126.(1)(j))

The government has changed the consensus based on some idea that leaving the original tripartite wording would require workers to report on themselves. We agree with the principle that there should be no requirement for workers to self-incriminate. By making explicit a requirement to report contraventions by other workers, however, the proposal would require workers to be tattle-tales who would be seen by other workers as `rats'.

Recommendation 4: amend 126.(1)(j) so it would read:

(j) report to the employer any situation that the employee believes to be a contravention of this Part but the employee must not be required to self-incriminate

4. Medical Examinations and Tests (Secs. 126.(1)(k), 139.(1) and 148.(6)

Mandatory examinations and tests are illegal under human rights laws and international agreements and practice such as the ILO Technical and Ethical guidelines for Workers' Health Surveillance (Geneva, 1997). Ontario makes these provisions explicit in Section 28(3) of the Ontario Occupational Health and Safety Act, (RSO, 199) which states:

“A worker is not required to participate in a prescribed medical surveillance program unless the worker consents to do so.”

The principle of medical examinations are:

(i) they must be voluntary

(ii) individual test results are confidential

(iii) workers have the right to choose the examining physician

(iv) the tests must be without cost to the worker

Recommendation 5: Delete Secs. 136.1(1)(k), 139.(1) and 148.(6) and make equivalent changes to the Regulations, eg. Part X, Hazardous Substances, (10.7).

5. Pregnant and Nursing Workers (Sec. 132).

This new section represents a progressive step forward for women workers. It does not, however, go far enough nor is it entirely clear.

Unlike lawyers and government officials, many workers are familiar with Part 2 of the Canadian Labour Code but are unfamiliar with the provisions of Part 3. Part 2 is often published without Part 3 so workers (and employers) would not have the provisions of Part 3 readily at hand. There must be an explicit mention of the relevant provisions of Part 3 in Part 2.

Pregnant and nursing workers in the Province of Quebec enjoy provisions for protective reassignment that are the best in the country. They include requirements for payment of workers' compensation benefits for those workers if their employer is not able to find them suitable employment, free of hazard to them, their fetus or their child. We need an equivalent provision for workers in the federal jurisdiction. The Government Employees' Compensation Act (GECA) and the Employment Insurance Act should be changed to provide for the payment of benefits to pregnant and nursing workers whose employer is unable to find them suitable employment.

Recommendation 6(a): append to 132.(3):

For greater certainty, once it is established that there is a risk to the health of the pregnant or nursing mother, or to the foetus or child, Division VII of the Canada Labour Code, Part III (Reassignment, Maternity Leave and Parental Leave; Maternity-related Reassignment and Leave) shall apply.

Recommendation 6(b): amend GECA (Government Employees' Compensation Act) and the Employment Insurance Act to provide for the payment of benefits for pregnant and nursing workers whose employer is unable to find them suitable employment.

6. Disciplinary Action (Sec. 147.1(1))

The CAW believes that the right to refuse unsafe work is the most important right workers enjoy in health and safety. Without the opportunity to protect themselves from danger, without fear of intimidation, all the other worker health and safety rights pale by comparison. When the Ontario government threatened to erode the right to refuse unsafe work, our union made this right an important cornerstone of the Days of Action which saw workplaces throughout the province shut down in a series of rotating one day protests.

We cannot and will not see Sec. 147.(1(1) erode the right to refuse. Employers would be able to point to this section of the Code and use it to threaten and intimidate workers.

We must point out in the strongest possible terms that the proposed wording of Bill C-12 and even the consensus wording are completely necessary. Employers already have the right to discipline workers if they willfully abuse their right to refuse. This right exists as the basis of employment law. It is not necessary to state it in the Code.

Since it already exists, the only purpose of putting in either the Bill C-12 proposal for Sec. 147.1(1) or the consensus agreement, is to have a clause that employers can point to, to intimidate and threaten workers. We say, take it out.

Recommendation 7: Delete this proposed section.

7. New Regulations

New regulations are needed in the following areas: Ergonomics, Prevention Programs, Violence in the Workplace and Working Alone. Working groups, of which our union is part, are presently working in Prevention Programs and Violence in the Workplace. As well, however, we need a firm commitment from the government on the need to ensure that there are new regulations on Ergonomics and Working Alone. Workers are at risk from more than violence when they work alone. They can be injured and unable to summon assistance by themselves. “No working alone” is a provision we have negotiated in a number of collective agreements. Many provincial jurisdictions have regulations which address the issue of the need to ensure there are measures to protect the safety of workers who are working alone.

Recommendation 8: new section:

In consultation with workers and employers, the government shall develop and implement, as soon as practicable, Regulations on Ergonomics, Prevention Programs in the Workplace and Violence in the Workplace.

Recommendation 9: add a new section 125.(2)(z.20):

The employer shall make special provisions for the protection of the health and safety of employees working alone.

Important Note: In order to accommodate the forthcoming Regulation on Violence in the Workplace, the following changes to Bill C-12 should be made:

Section 125.(1)(z.16), Duties of Employers: delete the current wording and substitute:

develop, implement and monitor, in consultation with, and participation of, the policy committee or, if there is no policy committee, with the workplace committee or the health and safety representative, a prescribed program for the prevention and protection against violence in the workplace appropriate to its size and the nature of the hazards in that it also provides for the education of employees in health and safety matters: (cf. Sec. 125(1)(z.03): the phrase “and participation of” needs to be added after “in consultation with...)”;

Section 134.11(4)(c), Duties of Policy Committee: delete the current wording and substitute:

shall participate in the development, implementation and monitoring of programs for the prevention of hazards in the workplace and for the prevention of violence in the workplace, that also provide for the education of employees in health and safety matters related to those hazards;

Section 135.(1)(7)(d), Duties of Committee: after “a program for the prevention of hazards in the workplace...”, add “and also violence in the workplace”.

8. Sectoral Regulations

Under the existing Sec. 157.(3) of the Code, there are sectoral Regulations whereby the Part 2 Regulations (Part I-XVIII) are applied to specific sectors, on the recommendations of other Ministers. As a major union in the federal jurisdiction, our union has been involved in the development of On-Board Trains Regulations, Marine Occupational Safety and Health Regulations and Aviation Occupational Safety and Health Regulations. This duplication of effort by employers, labour and government officials is a complete waste of time. Other Ministries may have a conflict with health and safety since they are dedicated primarily to other purposes. Time would be much better spent in developing provisions specific to the sector concerned, rather than duplicating existing provisions.

Recommendation 10: change the existing Sec. 157(3) so that the Minister of labour shall frame all sectoral Regulations fully in accordance with the central Regulations, with special provisions only where the circumstances of the sector warrant it.

The Need for Ergonomics Regulations

The CAW has been a part of the development process for the major ergonomics regulatory initiative in the country, the British Columbia Ergonomic Regulation. As well, we have supported the development of the Saskatchewan ergonomic regulation and have been part of the federal government's Legislative Review Committee which has recommended that Part 2 of the Canada Labour Code be amended to permit the development of an ergonomics regulation.

We have been participating in the committee which grew out of the Institute of Work and Health's RSI Conference held at McMaster University a couple of years ago, which written and met with officials of CAALL-OSH (Canadian Association of Administrators of Labour Legislation - Occupational Safety and Health) to try to convince them to establish a group to develop a harmonized ergonomics regulation in the same way as the harmonized WHMIS (Workplace Hazardous Materials Information System) Regulation was developed.

Internationally, we see the promulgation of the new Swedish ergonomics regulation which came into effect in January 1998. The European Community Council issued a directive in 1993. Australia has ergonomics regulations which began in the State of Victoria. California has a new, albeit not especially stringent, ergonomics regulation. And we see that the US government has finally stood up to the vigorous lobbying by some members of the business community, in particular UPS, and issued the Draft OSHA Ergonomics Standard. It should be noted, however, that some major US corporations such as the Ford Motor Company have publicly stated that they are not opposed to the development of an ergonomics regulation.

In the Province of Ontario and within the federal jurisdiction, the government inspectorate uses the “general duty” clause (the employer obligation to provide a safe and healthy workplace) to write ergonomic orders on employers. The question then becomes for employers with which ergonomic standard (ANSI, CSA, BC Regulation and Code of Practice) must I comply?

Why We Need Regulations

Regulations are laws. They are promulgated pursuant to a statute. Usually passed by Cabinet as an Order-in-Council (though BC regulations are promulgated by the BC Workers' Compensation Board), they do what they are intended to do - require certain behaviour by certain people to protect certain people. They protect the social good.

Corporations challenge the need for regulations. There are too many regulations, they claim. Too much red tape restricts our ability to remain competitive, they assert. Are these allegations true or not? Our union says they are nonsense. Corporations in Canada are among the most profitable in the entire world. General Motors, for example, established the highest profits in Canadian history in 1997, exceeding even the enormously profitable banks. GM made more money in Canada than they did in the United States or anywhere else in the world. Embarrassed by their riches, GM has now stopped publishing Canadian profits separately from U.S. profits so today we do not know how staggering these billions are, and Ford and Daimler Chrysler soon followed suit.

Many governments in Canada claim that they, their agencies and employers and employees all have a common goal: to create the safest workplaces in the world. We know that is not true. If employers truly shared this goal we would not need unions, we would not need government regulations, and we would not need health and safety committees. We could simply rely on the employer to make our workplaces safe. But the goal of employers is profit. If safety coincides with the goal of profit, then workplaces will be safe. If it does not, workplaces will not be safe. Unfortunately, in most workplaces today, it is the latter that is the case.

When workers are faced with health hazards such as a too fast pace of work which causes repetitive strain injuries and stress, employers still speed up work to make ever higher profits.

“Competitiveness” is not a health and safety goal nor is “prosperity” or the “overall economy” or “productive” workplace or “job creation” and “economic growth”. All of these are economic goals and have no place in a discussion about health and safety. If healthy and safe workplaces are also productive, that is a useful side effect. But the purpose of Part 2 of the Canada Labour Code is to protect health and safety, not to foster economic growth.

By accepting the idea that financial costs or workers' compensation statistics must drive regulations, we run the risk of seeing each health and safety improvement in a workplace subject to a cost-benefit analysis, eg. will the cost of ergonomics regulations pay off in reduced claims for RSIs and back injuries? But when governments such as New Brunswick and Ontario reduce entitlement under the Workers' Compensation Acts (now called Workplace Safety and Insurance Board in Ontario), it is more difficult to establish that workplace health and safety improvements will pay off for business.

Clear Evidence of the Need for Ergonomics Regulations

The most widespread and highly reported workplace injury statistics are the workers' compensation statistics. Because of restricted entitlement by both statute and policy, interference in the claims process caused by experience rating, low reporting and the denial of claims, these statistics are not a true reflection of actual workplace injuries. However, looking at recent figures we see that most lost time claims in 1996 totalled in excess of 350,000, of which 60% were attributed to musculoskeletal disorders. This translated to 200,000 plus RSI injuries. Surely this is evidence alone of the need for ergonomics regulations.

Back injuries are the big disabler and the most costly type of injury claims in the workers' compensation system. We know that ergonomics can reduce these injuries substantially. Look at the Ontario Universities Back Pain Study, for example. From 1993 to 1995, our members employed by General Motors in Oshawa participated in this careful, well designed epidemiological study which showed clearly that biomechanical exposures hurt workers' backs. As well, it showed a clear correlation with psycho social factors, though not with all variables.

As part of the changes to many Canadian workers' compensation statutes or policies, the government has legislated a number of provisions requiring employers to return injured workers to the workplace. Why should the government not, at the same time, enact legislation aimed at reducing, or avoiding the injuries in the first place?

Deregulation - a Race to the Bottom

Business has put forward the proposition that less regulation is better. Some governments have bought that argument to the detriment of worker and public safety. We say just the opposite. Laws work. They compel employers (and individuals) to modify their behaviour in accordance with society's wishes. They ensure that the dictate will profit will not be the only mechanism which influences corporate behaviour.

It is not, however, just our opinion. The need for regulations has been recognized in a variety of courts. In 1982, Mr. Justice Bair had this to say in the Ontario Court of Appeal in the Cotton Felts case:

While values necessarily underlie all legal prescriptions, a regulatory offence really gives expression to the view that is expedient for the protection of society, and for the order and use in sharing of society's resources that people act in prescribed manner in prescribed situations, or that people take prescribed standards of care to avoid risks of injury. The object is to induce compliance of rules for the overall benefit of society.

Mr. Justice Cory made similar points in 1991 in Wholesale Travel, a decision of the Supreme Court of Canada:

It is difficult to think of an aspect of our lives that is not regulated for our benefit and for the protection of society as a whole. From cradle to grave we are protected by regulations. They apply to the doctors attending our entry into this world and to the morticians present at our departure. Every day from waking to sleeping we profit from regulatory measures which we often take for granted. Unwisely we use various forms of energy whose safe distribution and use are governed by regulation. The trains, buses and other vehicles that get us to work are regulated for our safety. The food we eat and the beverages we drink are subject to regulation for the protection of our health. In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective function in society. It is properly present throughout our lives. The more complex the activity the greater the need for and the greater our reliance upon regulation and its enforcement. For example, most people would have no idea what regulations are required for air transport or how they should be enforced. Of necessity society relies on government regulation for its safety.

Deregulation affects worker health and safety and public safety as well. Unfortunately, it is rare that workers' safety is determined to be sufficiently important to warrant a public inquiry so we must look to inquiries about public safety for in-depth impartial looks at deregulation's affect on safety.

The Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario, made specific reference to this issue in the chapters entitled “Effects of Deregulation and Downsizing on Aviation Safety” and “Aviation Regulation: Resourcing Process”. Specifically, Mr. Justice Virgil Moshansky had this to say:

The effect of Economic Regulatory Reform, combined with deficit reduction or, more specifically, the five-year Memorandum of Understanding between Transport Canada and the Treasury Board, created a synergy that in my opinion, based on the evidence before this Commission, had an adverse impact on the effective application of safety standards. (Vol. III,p. 940)

and:

Had the Transport Canada Aviation Regulation Directorate been in a position to discharge all of its responsibilities in an effective and timely manner, some of the factors that contributed to the Dryden accident may not have arisen. (Vol. III, p. 914)

When companies are under intense pressure to compete, they are not in an objective position to develop standards of safety. The Honourable Mr. Justice Samuel Grange, in his report on the 1979 Mississauga train derailment described the situation very well:

The railways are answerable to their shareholders; the Canadian Transportation Commission is answerable to the public. (p. 126)

Business tries to claim that detailed safety regulations make companies less competitive. We disagree. Detailed safety regulations simply level the playing field so that companies who employ sound safety practices will not be competitively disadvantaged by those who don't. Some companies claim that safety regulations pose a hindrance to their ability in enhancing technological change. Once again, we disagree. Sound regulation forces technological change, especially in the area of ergonomics design, that meets the needs of society as a whole.

In the very profitable automobile industry, where our union represents the vast majority of the workforce, safety laws have not hurt it one bit:

Thirty years of federal safety rules - and the accompanying fuel-economy and air-quality demands - have cost the industry and its customers tens of billions of dollars. (But) it's hard to argue that the federal watch-dogging of the last three decades has hurt the industry or the nation.

John K. Teaken, Jr., Senior Editor

Automotive News, August 14, 1995

The KPMG Canadian Environmental Management Survey - 1994 found that Canadian corporate executives reported that 95% were motivated to take action on environmental issues so that they were in compliance with regulations while only 16% were motivated to take such action by voluntary government programs.

Performance-based Regulations

We prefer detailed, prescriptive regulations over vague, performance-based regulations. Vague laws are open to a wide variety of interpretations and are often difficult to enforce. Flexibility may mean that the employer will have the flexibility to comply (or not) with sound safe work procedures.

Prescriptive laws are clear, unambiguous and easy to follow. Everyone has access to the law. There is no need to try to get one's hands on Codes of Practice that may not be as easily available. Prescriptive laws level the playing field so that everyone follows the same rules.

In its 1997 discussion paper on the Ontario Occupational Health and Safety Act, the Harris government claimed that performance-based legislation means that “The employer has the freedom to tailor a compliance strategy to a particular workplace.” That is precisely what we fear. The employer would have the opportunity to do the bare minimum that arguably could be considered in compliance with a particular law.

With respect to ergonomics, flexibility could mean if there is a requirement to ensure workers' jobs are designed to reduce the risk of musculoskeletal injury, that job rotation rather than job fixes would suffice as evidence of compliance with the law. Job rotation can simply mean that more workers are exposed to the same hazard.

Vague laws are particularly onerous for small business. Small business often lacks the expertise and resources to interpret vague, “performance based” laws. It has been our experience in dealing with most employers in smaller workplaces that they prefer to be law-abiding. But with vague laws, they do not know how and feel they are at the mercy of the government inspector who might write orders on them or even prosecute. They want detailed, specific laws so that they can fully understand what is expected of them. Large employers have some possibility of deciding how to implement laws since they have professional health and safety staff. That possibility is unavailable to small employers. With work in the federal jurisdiction devolving to the private sector, there are more small employers in the federal jurisdiction than ever before.

Should the “workplace parties” have an opportunity to decide how to best implement procedural requirements? Only if the health and safety committee system is made stronger than it is at present. Apart from collective bargaining, health and safety committees and representatives are the only mechanism for workers to have input into health and safety workplace practices. Under present federal, provincial and territorial laws, these committees are relatively weak. They have only the power to make recommendations to the employer, not decisions. Yet the employer has up to half the membership on the committee!

It has been claimed that some jurisdictions such as the United Kingdom and Australia have adopted a performance-based approach to legislative development and advocate the idea (until the recent change of government in the UK, at any rate). Studies have shown that the system is not better than prescriptive regulations.

A 1992 study published in the Journal of Occupational Health and Safety had this to say:

The United Kingdom's Health and Safety at Work Act 1974, on which current Australian legislation is based, places reliance on industry self-regulation rather than on detailed regulations set out in statute and enforced by an external agency. In contrast, the United States' Occupational Safety and Health Act 1970 relies mainly on detailed regulations and a federal enforcement authority. Comparison of fatal injury rates between the United Kingdom and the United States since the mid-1970s shows a parallel decline in the two countries. Whatever the reason for the decline, there is no evidence of any clear superiority in the United Kingdom legislation, and it is possible that the improvement in both countries is part of an evolutionary process independent of legislative changes...(I)t is premature to downgrade the relative importance of regulation...(F)uture strategy should be based on technology transfer, supported by the judicious use of regulations which clearly set out safe systems of work.

With respect to chemical, biological and some physical hazards in the workplace, most governments have imposed detailed regulations, as Permissible Exposure Limits or Threshold Limit Values. While the union movement would argue that these limits are not stringent enough, they are clearly better than vague requirements. The same concept can be applied to prevent back injuries and RSIs. Considering a dose-response relationship between lifting heavy objects and the development of low back pain, surely specific limits are preferable to telling workers to bend their knees, not their back. For the areas in which we are not able to say with any scientific certainty what the number x is with respect to the duration of micro pauses needed in each repetition for each one-minute job, more research is clearly needed.

Conclusion

In conclusion, workers are at serious and increasing risk of musculoskeletal injuries. Employers must be compelled to use ergonomics to protect workers from these painful and disabling injuries. The time for detailed, prescriptive ergonomics regulations to be promulgated and stringently enforced in the federal jurisdiction is now.

Enforcement

Government enforcement of Part 2 of the Canada Labour Code is inadequate. Canada is the only jurisdiction where the injury rate has actually increased over much of the past decade. The number of federal inspectors compared to the number of workers inspected is among the worst in Canada. (British Columbia has the highest ratio of inspectors to workers inspected.) With only 150 federal health and safety inspectors at present, the job of protecting workers' health and safety in our large country is next to impossible.

Recommendation 11: Double the number of federal health and safety inspectors to 300.

The rate of prosecutions in the past decade is abysmally low, averaging well under ten a year. (Ontario is the leader both in numbers of prosecutions and levels of fines.)

Both workers and employers agree that Assurances of Voluntary Compliance (AVCs) - which have no grounding in law - should be abolished. Yet HRDC persists in the major use of AVCs, at the expense of Inspectors' Directions and prosecutions. The result is that about 1500-3000 AVCs are issued each year, compared with a couple of hundred Inspectors' Directions. HRDC is completely out of step with every other jurisdiction in the country by failing to issue orders where occupational health and safety laws are violated.

The autonomy of the Regions has meant that there is no consistent compliance and enforcement policy across the country. Unless all this changes, the new Part 2 will be effective only to the extent that groups of workers refuse to tolerate the conditions that Labour Canada is permitting to exist, in spite of the law.

The Honourable Mr. Justice Grange in his December 1980 report on the Mississauga derailment recognized the need to penalize offenders:

(T)he best way to prevent similar occurrences, accidents or crimes, whichever word may be selected, is to make it more costly for railway companies to violate the law than to observe it. (p. 191)

Mr. Justice La Forest had this to say about the level of fines in a case between Thompson Newspapers and the Restrictive Trade Practices Commission:

Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity.

An even better system than the prosecution method of the Canada Labour Code is an administrative penalty system. Prosecution is a reactive, after the fact enforcement mechanism that penalizes illegal activities only after the offence has occurred. It serves no prevention function in the instant case but only as a deterrent with respect to future incidents or for other employers if the penalty is made public. In safety enforcement it is extremely rare that a conviction, let along a stringent fine is imposed without a fatality or a very serious injury having occurred. Absent a disaster, the state doesn't react. Prosecutions are costly, time consuming of the inspectors' time, rely on prosecutors and judges who often view safety regulatory offences as, at best, white collar crime, require a high standard of proof in a court of law, and exclude the union as a party to the proceedings.

With respect to ergonomics, it is particularly difficult to prosecute employers since injuries develop over time and are often invisible. A judge is unlikely to convict, let along impose a high fine on any employer who fails to comply with an ergonomics regulation.

What is needed instead is an obligation on the federal health and safety inspectorate to write orders on all violations of safety regulations and to have at its disposal the ability to impose administrative penalties on violators.

Administrative sanctions for violations can be imposed promptly by the inspectorate who have (or should have) a thorough knowledge of safety regulations in general and an ergonomics regulation in particular and the implications of noncompliance. Administrative penalties can be imposed quickly and in sufficient magnitude to ensure that the cost of noncompliance is higher than the cost of compliance. An administrative penalty system can be set up so that the union is a party to the imposition of the initial penalty and to any appeal proceedings. And finally and perhaps more importantly, stringent administrative sanctions can be imposed by the regulatory agency before accidents occur.

The penalty (additional) assessment system is used by the B.C. Workers' Compensation Board for violations of health and safety regulations. It is time that the B.C. penalty assessment system is introduced by Workers' Compensation Boards throughout the country.

We wish to make it perfectly clear that we are talking about administrative penalties imposed on employers, not workers. It is workers who are at risk from injuries and diseases in the workplace, not employers. It is workers who are at risk from employer discipline if they violate health and safety rules. There is no corresponding mechanism for workers to discipline employers. There is no justification for workers to be at risk of a third penalty, from the Minister of Labour. If HRDC were to penalize workers, employers easily get “off the hook” from bothering to impose discipline on workers who violate health and safety rules and can always hide behind a claim that the workers were told about the rule but they continued to violate it. It is always amazing to our union to hear this from employers who have no difficulty whatsoever in penalizing workers who have bad attendance records, who report for work late, who are insubordinate, but these same employers become suddenly powerless when workers violate health and safety rules. The real reason for this of course is that employers often subtly encourage workers to take short cuts so that production will not be impeded. HRDC must not let employers avoid their responsibility to provide a healthy and safety workplace by ensuring safe work practices are followed by everyone.

Recommendation 12: Section 135.(10)

We have never seen a well functioning health and safety committee that did not have more than enough to occupy themselves with meetings at least once a month. We do not want to see meetings stipulated by law reduced to nine (9) times a year. We submit that the existing provision of once a month should be retained.

The Canadian Centre for Occupational Health and Safety (CCOHS)

Until the early 1990s, CCOHS was a national success and a credit to the federal government. CCOHS pioneered the use of computers and CD-ROMS providing information. As a result of the restrictions imposed first by the Mulroney government, the Centre then tried its utmost to comply with the new policy of commercializing the dissemination of health and safety information.

The reality is that commercialization cannot support an effective free information service for workers and employers, which is the presupposition of the federal Code and virtually all the provincial and territorial health and safety Occupational Health and Safety Acts across the country. Without the free provision of health and safety information, the right to know, as enshrined in law as a basic principle, is a hollow right. Furthermore, commercialization can often cover the actual cost of information; but it cannot cover the research needs which are essential for the updating and development of information data bases and the generation of knowledge. The result is that much information becomes increasingly out of date. For CCOHS to work, a minimum additional funding of a million dollars a year is needed from the Treasury Board. This funding should increase until, together with provincial funding from the Workers' Compensation Boards which are funded by employers, which should continue, all sources of information provided by CCOHS are again provided for free, as was the original mandate.

It is shameful to compare the CCOHS with the US National Institute of Occupational Safety and Health which funds research, health evaluation surveys in workplaces and also produces an enormous amount of free information. Our union gets a wide array of material from NIOSH, from lengthy, authoritative criteria documents to short health hazard alert bulletins suitable for posting in workplaces. By contrast, we get almost nothing for free from CCOHS. And we are a member of the Council of Governors of CCOHS. We want to see CCOHS restored to its former place of prominence in Canada and throughout the international community.

Health and Safety of Parliament Workers

The CAW strongly support 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 CAW supports the 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.

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Ms. Cathy Walker: I would like to address several points. One issue is the proposed definition of health in Bill C-12. It makes no sense whatsoever. It is contrary to the consensus that was reached by the tripartite group. Also, it is contrary to both a dictionary definition of health and the World Health Organization definition of health.

We recommend that the definition of health in fact be changed to read:

“Health”, in relation to work, indicates not merely the absence of disease or infirmity; it also includes the physical and mental elements affecting health, which are directly related to health and (occupational) hygiene at work.

That was the consensus. If you can't go for that, we'd rather not see it there at all. We'd just rely on the dictionary definition.

We would also like to deal with the issue of new regulations. In the new law, regulations for violence and regulations for ergonomics are permitted. We have developed a good consensus with the employers on the issue of the need for violence regulation and we are presently working on it. The exact substance, of course, is another issue.

It's the issue of ergonomics I particularly want to stress to the committee, and how important that issue is. I wonder if I could beg the indulgence of the committee just for a minute. You've been sitting for a while now; I wonder if we could all just stand up for a minute. These chairs are not particularly comfortable. Could we all just stand up for a minute and rest our backs?

The Chair: I guess that's okay.

Ms. Cathy Walker: Thank you very much. Now please be seated.

What we have noticed is that around this room we have a variety of sizes of people. Yet when we look at the chairs we must sit on, they're all the same. They don't adjust. For those of us who come here temporarily, it's uncomfortable, but it's not a really big deal. When we think of our members and of people who work particularly in clerical kinds of jobs, think of how difficult it must be for them to try to work in very uncomfortable situations.

I'm going to ask you to do something else, if I could beg the indulgence of the committee. Take your right hand and wrap it very firmly around your left wrist and squeeze really hard, really quite hard. How does your left hand start to feel? It's numb and it's tingly, isn't it?

What we've just done is given ourselves a very brief look at the issue of carpal tunnel syndrome. For people who have to do repeated kinds of work, a lot of repetitive typing in uncomfortable work stations, they don't only have this problem for a very short period of time. In fact, it is chronic. They wake up in the middle of the night in pain, not just discomfort but really bad pain. Sometimes it is so bad that they have to have surgery. Sometimes they can no longer work.

It's this whole issue of not just discomfort, but repetition becoming pain, that the whole area of ergonomics attempts to address, whether it's protection from back injury, repetitive strain injury in the upper extremities, or the whole issue of workplace design. We need to change the workplace dramatically to try to prevent injuries and repetitive strain injuries like this.

I particularly want to emphasize that we really need an ergonomics regulation in the federal jurisdiction, as we have now in the British Columbia provincial jurisdiction and in Saskatchewan. They're about to begin one in Manitoba. There are ergonomics regulations throughout Europe. There's a draft regulation in the United States. It's certainly time, within the federal jurisdiction, that our members are protected, and all workers in the federal jurisdiction are protected, by a new ergonomics regulation.

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There's another important issue I want to turn to, and that's the issue of enforcement, because without sufficient numbers of inspectors, officers to enforce the law within the federal jurisdiction, all the rules in the world may go for naught.

Right now there are only approximately 150 people to enforce the law under part II of the Canada Labour Code. We desperately need more inspectors in the federal jurisdiction. We have a very large country that's very spread out. There are workers from coast to coast to coast, some in very large workplaces, many in very small workplaces, and unfortunately, with the privatization of industry, oftentimes these workers have no union to protect them in the federal jurisdiction. I think we do a good job, but even within the workplaces where our union represents members, we still need the additional help sometimes from people from Human Resources Development Canada, the labour safety officers, to come in and help people by enforcing the law.

So we certainly want to say this, and make that point very strongly to the committee here this afternoon.

I rather suspect my time is very close to being up.

The Chair: Actually, you had a few more minutes to go, but that's great. I thank you very much for that, Madam Walker.

Ms. Cathy Walker: Thank you.

The Chair: Let me go to Don Brazier from the Federally Regulated Employers - Transportation and Communications. Is that okay?

Mr. Don Brazier: Sure. In the spirit of what you said earlier, Mr. Phillips and I have some notes. We don't have a brief per se, but we can provide the clerk with a copy of them for the record.

I wanted to speak about a couple of general items, because we heard about consensus for a lot of yesterday. Mr. Phillips is going to respond to the position of the CLC of yesterday, and you'll find out there are a number of areas where we are in agreement with the CLC and the unions.

So I'd like to take what I have here, my general comments, and condense it and just read three paragraphs. But I will provide the clerk with—

The Chair: Fine, you can go ahead and do that. What I'd ask you to do is not to read at a rate as if you were reading to yourself. That'll just make it easier for our translators to get the message across.

Mr. Don Brazier: I'd be more than happy to provide a copy to the translators if it would be helpful.

The Chair: It won't hurt.

Mr. Don Brazier: I'm only going to read three paragraphs of it anyway.

The Chair: That's okay.

Mr. Don Brazier: But I'll start off, since this is the only employer group that, as far as I know, is going to be appearing before the committee, by letting you know the employers that were part of the consensus process.... There was FETCO, and I'm not going to say anything more about FETCO. I e-mailed the clerk this morning a description, both in English and French, of what FETCO is, and there is no need to go into it further because it's going to be available.

The Chair: Mr. Brazier, before you begin, I wouldn't want anybody to get the impression that we were restricting the people who could come before the committee. There was a witness list that was suggested by all members, and so we got in touch with those who were recommended and suggested.

Mr. Don Brazier: Okay. The four employer groups that were part of the consensus process have worked in concert. FETCO was one of them. The second was the Canadian Bankers Association. Mr. Côté's name is on your list, and he's with the Bank of Montreal. The others were the Western Grain Elevator Association and the Treasury Board Secretariat. The representatives from the Treasury Board are here in the audience today. We all worked in concert.

As I said, I'd like to make some comments on the consensus process, then I would ask Mr. Phillips to make some specific comments on some of the points related to the legislation.

The consensus process is the outgrowth of over 20 years of consultation by government with labour and management on legislative and regulatory matters at the federal level. It was used to develop Bill C-12. It has been used to create or amend parts I and III of the Canada Labour Code, countless regulations, and other statutes such as the Non-smokers' Health Act in the late 1980s. The consensus process is an invaluable tool in the development of public policy since it provides a forum for the stakeholders—and in this case employers, employees and the HRDC—to advance their interests in a productive, fact-finding, and non-confrontational way.

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However, to make it work, the parties must approach the process in an open-minded fashion. They must be prepared to compromise, modify their positions, accommodate others in order to address the needs and concerns of others, and where necessary, drop issues in the interests of an overall agreement.

The output of the process represents a balance whereby the interests of all stakeholders are addressed. As you can appreciate, this process can work only if there is trust and commitment among the stakeholders. This means that once the overall consensus has been reached, all parties must accept it, and the compromise and trade-offs that went into developing it. To attempt to obtain through other means changes a stakeholder could not obtain through the process itself would upset the balance that has been reached, seriously undermine the process, and probably ensure that the consensus process could not be used in the future.

Therefore, we strongly recommend to the committee that they consider amending the bill only in those areas to reflect where consensus was reached but where the bill in its current form does not reflect such consensus. Mr. Phillips will talk about this.

I'll make just a couple of comments. The parties, the stakeholders, held 15 meetings. They met for 46 days, from February 1994 to July 1995. There were 207 proposed amendments made to the code. The CLC brought in 124; 62 came from HRDC; and 21 from the employers. Consensus was reached on all but 10 issues, so I think you can see this was very much a product of consensus.

I will now pass it on to Mr. Phillips.

The Chair: Mr. Phillips.

Mr. Harry Phillips: Good afternoon.

Before getting into specific issues, I'd first like to commend the presentation made yesterday by the Canadian Labour Congress. We agree with many of their recommendations, but there are some concerns we feel we need to raise.

First of all, going into the recommendations, the first one deals with the appeals process—and I get the sense that perhaps you're going to get tired of hearing the particular issues, because we all seem to be saying the same thing.

There was an agreement during the discussions on the appeals process to have a two-tier appeal mechanism. From what I've seen from the presentations you've already received, that mechanism has already been explained, so I won't go into the details.

Our concern is that under the current bill, there is no mechanism for a further appeal of an appeals officer's decision. If that appeals officer makes an error, our only recourse is to go to the Federal Court, and that's something we would like to try to avoid.

Our first recommendation would be that the bill be amended to reflect the original consensus, or failing that, we would support the recommendation made by the CLC yesterday to delete the references to appeals officer and replace them with references to the CIRB.

With regard to the definition of health, we would support an amendment to the definition of health so that it reflects the original consensus, and the wording contained in the submission by the Canadian Labour Congress yesterday reflects that consensus.

Regarding the reporting of contraventions, the intent behind the recommendations to amend this section of the code was to ensure that all employees understood they had a responsibility to report not only hazardous conditions—“hazardous circumstances” are the words used in the current bill—but that they also had an obligation to report to their employer circumstances that could be interpreted as contraventions of the act or the regulations.

Somehow this recommendation was misunderstood by the drafters of the bill, and we now have two distinct paragraphs, one of which is viewed by the employee representatives as being undesirable. Although we, the employer community, see nothing wrong with the way it's currently presented in the bill, we do support the consensus process and in good faith we have to suggest that an amendment be made to reflect the original consensus. Therefore, we would concur with the CLC's recommendations that proposed paragraphs 126(1)(g) and 126(1)(j) be amalgamated.

Regarding medical examinations and tests, we were somewhat surprised by the presentation of the congress on this issue, because originally this was a full-consensus item. The consensus was to make it mandatory for employees to take all prescribed medical examinations and tests. Of course, prescribed means detailed, as in regulation.

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However, the intent of this section was changed during the drafting of the bill. There are no penalties associated with this clause; therefore, if an employee refuses to participate, nothing can be done. We therefore see this as a meaningless clause in the bill and we would support the recommendation of the Canadian Labour Congress to remove it in its entirety.

When I say that, I'm talking about proposed paragraph 126(1)(k). We do not support the removal of proposed subsection 139(1), which would allow the minister to undertake medical surveillance programs.

Moving to the issue surrounding pregnant and nursing employees, the intent behind this recommendation was simply to bridge a gap that was created by part III of the code. The intent was to allow a pregnant or nursing employee to seek a medical opinion, without loss of pay, as to whether or not her work may be hazardous to herself, the fetus, or her child. The intent is that once this opinion has been obtained, part II of the code would no longer play a part in the situation, and the resolution process for the employee would be what was described in a letter from Madame Nicole Senécal, who was then the assistant deputy minister of labour branch, dated July 12, 1996, and addressed to Ms. Louise Hall of the Public Service Alliance and to me.

This letter outlined that the resolution process could be sought either through part III of the code, a collective agreement, or the terms and conditions of employment. We would therefore support an amendment to Bill C-12 to reflect the intended resolution process.

Regarding disciplinary action, we support an amendment to proposed section 147.1(1) so that it reflects the original consensus. The wording of the original consensus was contained in the submission yesterday by the Canadian Labour Congress.

Another issue I feel you haven't heard about is one dealing with health and safety representatives, specifically proposed section 136(1). During the discussions on this section dealing with the health and safety representatives, the intent was simply to change the triggering mechanism for having a representative from five employees or more to fewer than 20 employees. Somehow, again, during the drafting of the bill, other wording of this section was changed, which now would lead us to believe that an employer would be prohibited from establishing a health and safety committee voluntarily, even though they're not required to do so by the code.

The current version of the code allows this, and we would therefore recommend the wording in this section be changed back to the original wording as it is currently seen in part II of the code—other than, of course, the change reflecting the number of employees.

There were a couple of other comments presented by the Canadian Labour Congress yesterday that we feel we have to make reference to.

One was under the heading of “The consensus agreement on new regulations”, which was item 7 in the CLC presentation. We believe the current provisions of the code that allow the Governor in Council to make recommendations is perfectly acceptable. The approach now being presented by the congress was never raised at subcommittee discussions, nor was it ever discussed with us. We would therefore urge that you reject this recommendation under that heading—actually, all of the recommendations under that heading.

Similarly, the issue of working alone was never formally presented to us as an item for discussion when we were dealing with proposed changes to the code, and we strongly object to that recommendation.

We believe that with the amendments mentioned by us we would have a piece of legislation that would work well in today's modern workplace and has the support of the workplace parties. To make any amendments beyond what was discussed by the parties affected by the legislation would, in our opinion, in effect create a piece of legislation that does not have the full support of everyone. We encourage this committee to recommend only the amendments that will return the bill to the consensus agreement, and to put forward a recommendation to Parliament that this bill be passed into law without further delay.

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Thank you.

The Chair: Thank you.

Now, for your comfort and everybody else's comfort, I think one of the things the committee wants to do is get the legislation back to the House. Then the House will do what it will with it, but we intend to give the House all the information it needs to make its decisions in the way it feels is most appropriate. I think there's probably a desire on the part of members in the House to do the right thing.

Mr. Bennie, I know you're going to be patient because you spoke already, so I will go to Mr. Anthony Pizzino from the Canadian Union of Public Employees.

Mr. Anthony Pizzino (Director, Health and Safety Branch, Canadian Union of Public Employees): Thank you, and thanks for the opportunity to be here today.

I will be brief because I think everything I was going to say has already been said. I will be providing the committee with a written submission outlining all the details. So I guess we can make it seven for seven on health, if I could; it's already been said.

CUPE fully supports the recommendations presented by the Canadian Labour Congress and also the presentation today by the Public Service Alliance and the Canadian Auto Workers, just so that's clear.

I just want to talk briefly about the section on pregnant and nursing employees. It is a very important amendment to the code. We represent a majority of women employees, both in the federal sector and provincially as well. Our membership is made up mostly of women, and we see this as a very important, progressive, and necessary piece of the legislation.

On the new regulations, I just want to reiterate not only the importance of the violence prevention regulation that's going on now, the consultation process, and the prevention program, but also the very pressing need to enact ergonomic protection for workers. We see the Canada Labour Code as a lead piece of legislation in Canada, and having a regulation on ergonomics would certainly establish the standard for that particular hazard being faced by workers everywhere.

The issue of the administration of the code is something I hope will get some scrutiny as well. We don't feel that the federal government can stand up and say they have the absolute best enforcement of the legislation, as it is now. There are not enough safety officers to administer the code, and we hope that will be looked at as well.

There was consensus with the employers on the issue of assurances of voluntary compliance, and I expect the submissions of the Public Service Alliance and the Canadian Labour Congress have dealt with that. It is something we discussed with the employers, and I'm quite certain we reached consensus on the fact that they ought to be abolished.

There are two final points I would like to speak on. First, the fact that the new legislation provides for a strengthened internal responsibility system means there will be more self-sufficiency on the part of employees and employers to deal with health and safety issues. One of the key areas will be the right to know and the right to obtain information. Canada was really a leader in the 1980s in providing that information free of charge to workers and employers across Canada. That lead organization was the Canadian Centre for Occupational Safety and Health.

Until about the 1990s, that was the case, but when funding was cut to the centre, they were put in a position of commercializing their products to become self-sufficient. As a consequence, they've had to start charging for materials, in essence selling information to workers and employers in order to protect their own safety and health.

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So we would make a recommendation that additional funding be made available to the Canadian centre. I believe the CLC has dealt with that issue. The recommendation is $1 million in addition to what's already provided by the provinces, in order to support that internal responsibility and the right of workers to obtain information to protect themselves. Organized labour in Canada has supported the centre from its inception, and we hope that will be looked at very seriously.

Finally, CUPE strongly supports the Public Service Alliance in their campaign to provide parliamentary workers with basic health and safety rights. I think it's almost embarrassing that the very workers who work in Parliament are not afforded the protection of the Canada Labour Code, part II. So we support the Public Service Alliance on that.

I heard the chair say that the intent is to pass this legislation as soon as possible. We think it's been a very long and worthwhile process in terms of the consultation that's taken place, and we hope to see the bill become law very soon.

Thank you.

The Chair: Mr. Pizzino, thank you very much. I think the chair said that the committee is anxious to provide the House with all the information it needs in order to do what it feels is right. But I guess we're in the interpretation business as well.

Mr. Bennie is here today representing—

Mr. Jeff Bennie (National Representative, Canadian Union of Postal Workers): The Canadian Union of Postal Workers.

The Chair: These things keep changing on me. Yes, the Canadian Union of Postal Workers.

Mr. Jeff Bennie: That is the union I represent. I do work on behalf of the Canadian Labour Congress from time to time.

The Chair: For all the members around the table, Mr. Bennie was here yesterday as part of the CLC presentation.

Mr. Jeff Bennie: I want to thank the committee for allowing me another opportunity to appear to talk about this very important piece of legislation.

The Canadian Union of Postal Workers represents 45,000 workers, mostly in the postal and other related sectors, and the majority, of course, work for Canada Post. We support the positions of the Canada Labour Congress and the other unions that have appeared today on the issues of the appeal procedure; the definitions of health, medical examinations, pregnant and nursing employees, and disciplinary action; and the need for new regulations, particularly ergonomic regulations in the federal workplace.

I want to talk today about one issue we didn't deal with during the process. With all due respect to FETCO's position, I think it's something that needs to be addressed.

As was indicated in FETCO's presentation, this process started when we made our submissions in 1991-92 on amendments to the legislation. Through the legislative review committee and then a legislative review subcommittee, there were about three years of deliberations and meetings. Finally, consensus agreements were reached in 1995. Well, here we are in the spring of 2000 taking a second kick at the can, trying to get these amendments passed. The amendments were originally put forward in 1997. They didn't make it through the House, and here we are again in 2000 trying to get these amendments passed.

However, the nature of work and the nature of employment in the Canadian workplace has changed over the last decade. We see more temporary workers and more contract workers employed within both provincial and federal jurisdictions. That's particularly true within the workplace I come from, Canada Post, and it's true about other workplaces in the federal jurisdiction. So we have to look at who is covered by part II, who is going to be provided with those basic protections on occupational health and safety.

If we look at the definition of employee in part II of the code, it's very vague. It says an employee is defined as a person employed by an employer. Whether or not that covers a contract worker is not clear, but we have to ensure within the provisions of part II that a contract worker, a dependent contractor, is covered by part II of the code.

If we look at part I of the Canada Labour Code, the definition of employee includes dependent contractor, and it affords a dependent contractor the rights of free collective bargaining and association. But what more basic right is there for a worker than to have their health and safety protected while they're at work?

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We have to ensure that this right is extended to dependent contractors when their sole employer is the employer contracting their work. Therefore, I would recommend to the committee that they forward to Parliament a recommendation that the definition of employee under part II clearly comes in line with the definition that already exists in part I of the code to ensure that dependent contractors are also covered by this basic protection—that is, their health and safety while they're at work.

I thank the committee.

The Chair: Thank you very much, Mr. Bennie. That was brief, and I thank you for it. It certainly made the point very clearly.

I was hoping we would have Madame Lippel here.

[Translation]

She has just arrived. We could give her one or two minutes in order to get prepared.

[English]

It looks as though we will have at least a good hour, maybe an hour and 15 minutes, to get some things around the table. Without trying to predict what will happen, it seems we might have a healthy discussion.

I'm also going to invite all presenters to stick around afterwards. We had already made some provisions for a light dinner for everyone because we anticipated going well beyond our normal time. Then the House in its wisdom changed the schedule for us by calling a vote.

Now, that doesn't mean you have to go without any sustenance. When members leave, please at least avail yourselves of some of the food, which is scheduled to come here at around 5:30 p.m.

I hope you'll accept our hospitality, because if you don't, members of Parliament will show you very quickly what to do with food.

Voices: Oh, oh!

Mr. Brent St. Denis (Algoma—Manitoulin, Lib.): Speak for yourself.

The Chair: Members of Parliament never go anywhere unaccompanied. They always have a good appetite with them.

[Translation]

Ms. Lippel, you're here.

Ms. Katherine Lippel (Law Professor, Université du Québec à Montréal): I think I am here.

The Chairman: Everyone is waiting for you.

[English]

I don't want you to feel nervous about this, but everybody has been waiting, looking at their watch, for about the last half-hour.

Prof. Katherine Lippel: I'm not going to lose any sleep, so I hope you don't either.

The Chair: Madam, you weren't here for the other presentations or to hear my introduction, and the chair is at his most useful when he tells everybody what the rules of the game are.

You have about 10 minutes to give us your presentation. You don't need to read it. We'll read it into the record for you. You can highlight the points you want. Then, because you're our last, we're going to go into questions and answers from members from both sides of the House.

Prof. Katherine Lippel: I just want to confirm that you have received a copy. It was faxed this morning.

The Chair: Yes, I have a copy. I think everybody has one. I read through it very quickly a moment or two ago.

Members have it? Yes.

Statement by Professor Katherine Lippel: I am a professor of law at the Université du Québec à Montréal, specializing in occupational health and safety law.

I am very familiar with the Québec programme for protective reassignment of pregnant and breast-feeding workers as I was called upon to prepare a study for the Ministère de la santé et des services sociaux of Québec on this subject. The results of our research were submitted in a report to the ministry. Subsequently I published, with my research team, a book on the same subject: Katherine Lippel, Stéphanie Bernstein, Marie-Claude Bergeron, Le retrait préventif de la travailleuse enceinte: réflexions sur le droit et la médecine, Éditions Yvon Blais inc.,Cowansville, 1996 (224 pages); see also K. Lippel, Preventive Reassignment of Pregnant or Breast-feeding Workers: the Québec Model, (1998) 8:2 New Solutions 267-280.

I am here in my own name for the purpose of supporting the amendment proposed by Madame Monique Guay: the addition of section 132.1 to Part II of the Canada Labour Code.

The following are some of the issues I intend to raise when I appear before the parliamentary committee on this subject.

1. Why is it important to recognize the right to protective reassignment of pregnant, or breast-feeding workers?

I believe that in order to protect the health of pregnant workers, their unborn children, or children who are nursing it is necessary that workers have the right to be reassigned to tasks that do not present a danger to their health, or to that of the unborn child, or nursing child. If reassignment is not feasible, then the worker should be able to withdraw from work and receive economic compensation (income replacement indemnities).

When obstacles to reassignment imply that the worker must choose between returning to dangerous working conditions or withdrawing from work at her own expense, the programme will fail to achieve the objective of protecting health. Currently, women workers governed by federal labour legislation do not have the right to income replacement once it has been determined that reassignment or task change is difficult to achieve (s. 205 CLC). Thus the workers are forced to make unacceptable choices: either to shorten their maternity leave or to work under conditions that are dangerous to themselves or to their child.

A true right to protective reassignment is important in order to protect the health of the workers, that of her unborn child and that of the nursing child in that: it permits withdrawal from work without penalty if reassignment is not possible; it provides a real incentive to the employer to eliminate dangerous working conditions.

The right to protective reassignment is important in order to promote equality rights of women workers in that it eliminates incentives to discriminate against women during their child bearing years.

The right to protective reassignment is important to promote occupational health of all women workers in that its very existence provides incentive to the scientific community to do research on dangers present in work usually done by women. (For an understanding of the ways the scientific community traditionally ignores women's working conditions see Karen Messing, La santé des travailleuses: la science est-elle aveugle? Les éditions du remue-ménage, Montréal, 2000: Karen Messing, One-Eyed Science: Occupational Health and Women Workers, Temple University Press, Philadelphia, 1998.

The CINBIOSE research group organized a colloquium on the theme of women's occupational health that was held at the Université du Québec à Montréal between March 26 and 28, 1998. Participants emanated from the research community and from groups representing women workers. All were actively involved in studies or activities involving health of women workers. They are specialists in several fields: occupational health and safety, ergonomy, biology, law, sociology, public administration, industrial relations, and intervene both on a pan-Canadian level and on the provincial level (5 provinces). A Swedish expert was also present.

The colloquium was sponsored by the Women's Bureau of Health Canada and the Women's Bureau of HRDC, and followed up from the activities started by Health Canada in collaboration with researchers in 1991. An action plan to promote women's occupation health was adopted by all the participants. Among the recommendations was the following:

Legislation in all jurisdictions, both provincial and federal, should provide for protective reassignment of pregnant or nursing mothers when their working conditions present a danger to their health, or to that of their foetus, or nursing child.

Protective reassignment programs should be modelled on the Québec legislation that provides for reassignment to a task that does not present a danger, or compensated withdrawal from work, as well as the right to return to work. The programs should include, when reassignment is not possible, the right to compensation equivalent to that paid to injured workers during the period of disability.

The programs should be conceived in a way that avoids incentives to discriminate against women workers (at the time of hiring, or with regard to remuneration).

I am in agreement with this recommendation and I believe that the amendment proposed by Madame Monique Guay is a step toward this objective. Ideally, all women workers governed by federal labour law should have the right to protective reassignment. Minimally, those workers who work in a province where they would have access to protective reassignment rights were it not for the fact that they are governed by the Canada Labour Code, should immediately be allowed to have the same rights as their neighbours. The proposed amendment achieves this objective.

What characteristics are important to achieve an efficient system?

Avoid legal wrangling by providing that the personal physician, in consultation with the public health physician, play a determining role.

Avoid incentive to discriminate against hiring women by ensuring the program is financed by contributions from all employers, and not just those who hire women who avail themselves of the program.

Pay the same level of compensation as would be paid to injured workers during temporary disability.

In conclusion, the right to protective reassignment of pregnant workers is not a disguised maternity leave. It is a tool to provide for healthy working conditions and to ensure that women workers need not choose between protecting their health and that of their child, on the one hand, or being able to earn their living and provide for themselves economically, on the other.

Bill C-12 as it now stands does not provide for protective reassignment that includes the right to benefits when reassignment is not available. In failing to do so, it proposes a right that is really an empty shell. For this reason, I support the amendment proposed by Madame Monique Guay.

[Translation]

Ms. Katherine Lippel: I will be making my presentation primarily in French.

The Chairman: No problem.

[English]

Madame Lippel, from the Université du Québec à Montréal, please proceed.

[Translation]

Ms. Katherine Lippel: I will introduce myself very quickly and explain why I wanted to come here. I will not be reading the presentation that I provided. I printed out the English and French versions of this rather summary document, for which I apologize, only this morning. I did, however, want to be available to you should you have any questions on the substance.

I am a professor of law at the Université du Québec à Montréal. I specialized in occupational health and safety law and, among other things, I have been working on the protective re- assignment of pregnant workers for several years. I conducted a study for the ministère de la Santé et des Services sociaux (Ministry of Health and Social Services) and published a book which appears to have been made available to you.

[English]

The Chair: Madam Guay is going to do some advertising for you.

Prof. Katherine Lippel: This is lovely. I appreciate it.

[Translation]

For those who do not read French,

[English]

the summary version is in English at footnote one.

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[Translation]

I will tell you what really prompted me to come and testify here before you. I am interested in being here, but we were informed of this meeting less than 48 hours ago. I will tell you a short story that may explain why I am here before you today.

I am a lawyer and I work as a professor of law. I specialize in occupational health. I am not practising and usually I do not receive any telephone calls from workers. I work with unions or administrative organizations. Approximately two years ago, a worker found my telephone number at the university; she called me and told me the following story. Her story really motivated me. I hope that it will motivate you as well.

I'm talking about a Quebec worker, a flight attendant, who therefore comes under federal jurisdiction, who lost her baby when she was eight months pregnant. She is a unionized worker. According to her collective agreement, certain accommodations were to be made for pregnant workers to ensure that they could remain on the ground during the first three months of pregnancy, because it had been decided that the risk of loosing the baby was much greater during the first three months than at the end of the pregnancy.

Consequently, after eight months of pregnancy, she found herself standing up, working as a flight attendant. She worked on return charter flights between Montreal and Costa Rica. However, there were some problems and one flight took 14 hours. When she stepped out of the plane, her baby was dead.

Nine months later, a long time afterward, she called me to tell me that, first of all, she wanted to tell her story so that somebody would do something. Obviously, you cannot make the baby come back, and that is why there is protective reassignment, but she said, at that time, that if her story could be of any use, she hoped that I would use it.

I am no militant; I am a university professor. Consequently, I did not go any further. When I read Ms. Guay's proposal, I said to myself that this was perhaps an opportunity to remember why it is so important to have paid protected reassignment for pregnant or nursing workers who come under federal jurisdiction.

No doubt you know that protective reassignment for pregnant Quebec workers was applied to federal employees from 1981 to 1988. Not only did this woman have the misfortune of coming under federal jurisdiction, but also, she happened to be a federal employee at the wrong time, because had she been pregnant in 1986, she would have been eligible for protective reassignment.

This is a miscellaneous fact, but I am starting with this because I think it is important. When workers cannot be paid during protective reassignment, they have to make a choice. They try to manage their pregnancy. They may try to save their pregnancy at the beginning because they think that this is the most critical time. However, we are putting workers in a situation where they have to negotiate their own health, perhaps at their own expense, and I find that reprehensible. This is an example that is very eloquent.

These are the reasons why I feel it is important to provide for paid protective reassignment, protective reassignment as proposed by the member of Parliament, Ms. Guay. There is no negotiating power without this access to compensation. It is all for show. There is this illusion of having a right. You have a right until it proves to be invalid and then you realize that you don't have it anymore. In addition, people cannot organize themselves or rely on this right to change, on the one hand and to protect themselves on the other hand, and also to change behaviours at work.

I will not bore you with legislative sections. You already know that section 205 of the Canadian Labour Code provides for protective reassignment, except that no compensation is stipulated. I am here to tell you that I believe that this situation is inadequate.

Why is it important to provide a right to protective reassignment in order to protect the health of pregnant workers? First of all, it enables female workers to withdraw without any financial penalty. If the workers have to leave work early, they will have problems meeting their financial requirements. Protective reassignment would also provide the employer with a real incentive to eliminate hazardous work conditions. I confess that this will take years. This is not the first year that we will see changes in behaviour. However, when legislation such as this one is institutionalized, when there is a penalty and when workers leave with replacement income because of a failure to change their conditions of work, we ultimately witness changes in the workplace. Sometimes, it is simply a matter of providing the pregnant worker with a chair so that she can sit down during the third trimester of her pregnancy.

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Jurisprudence exists. Decisions made by the Employment Injury Board gave seamstresses the right to go to the washroom without permission. This is really what reassignment is all about. We are not talking about taking a paid vacation in Florida. These are really basic issues, and it is quite tragic when you need to have a right in order to obtain these conditions. We are not talking only about unionized workers, but also about many non-unionized workers who avail themselves of this right.

This is important in terms of equal opportunities as well. I am mentioning this although this doesn't always come to mind initially. In the United States, there were what we refer to as fetal protection policies. Employers, in hiring certain female workers, required proof of sterilization. There were the Johnson Controls for women of child-bearing age. In the 80s, when there were toxic substances in the workplace, proof of sterility was required, which obviously created some serious problems for female workers in terms of equal opportunities. These women won their case 10 years later at the United States Supreme Court. It seems to me that there is a much more efficient manner to do things.

I am not a unionist, but I do read case law and I have never heard about a case in Quebec in which there were any sterility requirements. This is because we had foreseen how we could accommodate female workers collectively instead of doing this on a case-by-case basis. The United States loves litigation and there is a lot of case law stipulating that the pregnant worker can demand accommodation under the anti-discrimination legislation. If we were to begin legislating this entire issue here, we might achieve the same results, but a collective solution would be more efficient and preferable in order to maintain harmony in the industry.

Thirdly, I will talk about the importance of having such a right for health reasons. This is something to which we do not give a great deal of thought. The legislation has existed in Quebec since 1981. Most of the sectors that provide protective reassignment are not non-traditional areas. We are talking about very traditional employment sectors: health services, daycare centres, waitresses and probably flight attendants as well, at least in positions where the employee has to remain standing for lengthy periods of time.

We discovered that the institutes responsible for conducting research and for funding occupational health research did not do a great deal of research into the health of women in the workplace until such time as the health of women in the workplace began to cost them a bit of money. At that point, they decided that it would perhaps be a good idea to find out what are the real risks involved in such and such a trade. A perverse effect of this program was that it enabled us to gain much more knowledge about the health of women in the workplace.

I'll spare you all the references and other recommendations made by other groups to get to two or maybe even three points.

First, as you saw in the document, there is a group of researchers recommending preventive reassignment throughout Canada and in all jurisdictions and I agree with that. In an ideal world, the Canada Labour Code would be amended so that all female workers under federal jurisdiction could seek the protection of prevent reassignment as it exists in Quebec.

That said, I support the amendment proposed. That's why we were called here. I think that the female workers in a given jurisdiction whose neighbours to her left and to her right can use prevent reassignment should be able to do so also.

I have two small points to draw to your attention. What are the most important conditions to promote an efficacious regime? You have to avoid referrals to the court for the plans. That was done quite efficaciously in Quebec by giving a lot of power to the referring physician and to the physicians in the community health departments. That gets the lawyers out of the debate. I like them a lot, but I'd rather not see them in cases where you're going to be giving birth nine months later.

Second, you have to avoid the perverse effect this could have on the hiring of female workers. It's very important for the funding of the plan to be ensured collectively by all employers whether there are pregnant workers working for them or not. Otherwise, you're going to encourage employers not to hire pregnant workers. According to the 1998 reports, that represents less than 5% of the premium shared out amongst everyone. Finally, you must provide compensation equivalent to that paid to the victims of industrial accidents.

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In conclusion, I'd like to say I support Ms. Guay's proposal. I'd like to see a right to prevent reassignment for everyone, for all pregnant workers. At the very least, I think we should guarantee that those who had that right from 1981 to 1988 and who lost it because of a constitutional challenge get that right back, and the federal government has the power to do that. We should also point out that prevent reassignment for the pregnant worker is not maternity leave. It's a problem of health on the work site and it's important to keep that in Part II of the Code because that is how we are going to protect the health of our workers, both male and female. That was my last point.

The Chairman: Thank you very much. You have an advantage because you've already seen Ms. Guay's proposal for an amendment. The other members around this table don't know anything about it.

Ms. Monique Guay (Laurentides, BQ): [Editor's Note: Inaudible]

[English]

The Chair: We'll know soon enough. You've turned our disadvantage to advantage. We now know the arguments in favour of listening to it once we get it.

That's the one you're leaving out, right? Okay.

Mr. Johnston.

Mr. Dale Johnston (Wetaskiwin, Canadian Alliance): Thank you, Mr. Chairman.

Thank you all for your presentations.

I'd like to ask questions about the appeal process. Apparently the consultation period took several years and a lot of consensus was arrived at. I'm wondering about the two-tier appeal process. Was that originally agreed to by most parties in the consultation process? If so, I'm wondering why it's not here in the bill. Why do we have a one-stage process?

Would you like to speak to that, Mr. Phillips?

Mr. Harry Phillips: Did you ask whether all parties agreed to it?

Mr. Dale Johnston: Yes. Was it arrived at by consensus?

Mr. Harry Phillips: It was arrived at by consensus between us and the representatives of the employees. HRDC didn't specifically say they agreed with it but they did not disagree. They allowed the conversation and the discussions to go until the very end and then said they couldn't support this.

Mr. Dale Johnston: Did I understand you to say during your presentation that if you couldn't have a two-tier appeals process, you would prefer to have the CIRB as the single appeal?

Mr. Harry Phillips: Yes, with a tribunal of the CIRB, as was described in the congress's presentation.

Mr. Dale Johnston: I don't want to put words in your mouth, but I would assume that's because the CIRB is a quasi-judicial body and you think there's less room for mistakes.

Mr. Harry Phillips: I wouldn't like to say there's less room for mistakes. Our understanding of the way the CIRB works is that if we go in front of a tribunal and there is an error in their decision, we can ask for a review by the full board. That is why we would support that mechanism. Currently under the bill, if the appeals officers were to make a mistake, we have no appeal mechanism other than going to Federal Court. Of course, that's an expensive and time-consuming thing to do and we really don't want to have to be put into that position.

Mr. Dale Johnston: One of the questions I suppose I should be putting to the officials from the department, and perhaps the minister, is whether having the appeals process go through the CIRB would require a change to part I of the code. Could that be done without opening up part I of the labour code?

Mr. Harry Phillips: My understanding of part I is that it wouldn't require a change. The current part II of the code does move some appeals or reviews to the CIRB. Well, in part II it's described as the CLRB, but of course it's now the CIRB.

• 1650

Mr. Dale Johnston: The definition of health is different in Bill C-12 from what it was in the former bill, the bill from April 1997. Do you consider the changes in that definition significant?

Mr. Harry Phillips: To be honest, I can't recall what the definition in Bill C-97 was.

We as the employer community don't really have a concern with the definition as it appears in Bill C-12. However, we have said all along that we will support the consensus, and Bill C-12 does not reflect a consensus.

The Chair: A consensus on the definition?

Mr. Harry Phillips: That's correct, yes.

Mr. Dale Johnston: I think that's all for now.

The Chair: Thank you, Mr. Johnston.

[Translation]

Mr. Bélair.

Mr. Réginald Bélair: I'd like to make a comment rather than putting questions. Yesterday, after the presentation made by the Canada Labour Congress, we discussed several problems that have come up here again today.

I have read the brief prepared by the Public Service of Canada in its entirety. It points out a few concerns that I had about some clauses in this bill. I'm also waiting anxiously to see the amendments Ms. Guay will be tabling before the committee.

There is one thing I very firmly believe we will have to look at seriously: that is the definition of health. You will remember that yesterday I made much about stress at work. Where the workplace environment might cause stress, when does the medical diagnosis come into play? You don't necessarily say anything about that in your presentation, Ms. Turmel, but it is mentioned in the definition of health:

[English]

professional ordinary stress, or something like that. It's subclause 2(5), I think.

[Translation]

That's part of the definition of health.

I consider this brief representative not only of employees in the public service, but of all Canadian workers generally speaking. We will certainly have to review the definition of health.

It was just a comment, Mr. Chairman.

The Chairman: Ms. Turmel, you definitely have an ally. Do you want to react to that presentation? That was not a comment, that was a presentation.

Ms. Nycole Turmel: You will find in the document that you are going to be receiving, in the brief Mr. Bélair mentioned, that we do mention that definition and a recommendation is made to that effect. I think I understood at the beginning that you would also receive that document and consider it.

Mr. Réginald Bélair: I have only one other comment, Mr. Chairman. I must say that the definition set out in the brief is quite different from that in the present bill.

Ms. Nycole Turmel: Yes.

Mr. Réginald Bélair: We will have to look very seriously at this matter. I, for one, am convinced that we should use that definition rather than the one that is in the bill. It is crucial for the whole bill.

Ms. Nycole Turmel: Would you like me to read it out?

The Chairman: No, that is not necessary. I would like to remind all members that we have until Friday to introduce amendments, not only until tomorrow, Mr. Martin, but until Friday. Agreed?

[English]

Mr. Pat Martin (Winnipeg Centre, NDP): Very good. Thank you.

[Translation]

The Chairman: That is all.

Are you through, Mr. Bélair?

Mr. Réginald Bélair: Yes.

The Chairman: Ms. Guay.

Ms. Monique Guay: As you can see, we've been doing our homework. Our amendments are ready and we'll be tabling them by Friday. I was told that we had a bit more time. Maybe we could tweak a few sentences that still have to be corrected. You will find them very interesting. They are the result of a consensus.

• 1655

Our thanks to all the witnesses who came both from the labour community as well as counsellor Lippel. I am happy to have finally met you after having spoken to you over the phone.

We will be tabling the amendments, of course. Mr. Martin will probably also be tabling some. The definition of health is primordial in this bill. We all know now that stress is the disease of the century. If you exclude it from the definition, then the whole bill becomes irrelevant.

I will look at your documents. I did not have the time to read everything yet. We are hearing you all at the same time because we have to go and vote. So, in a way, we are running out of time.

Ms. Walker, I really appreciated your presentation. By having us move around on our chairs, you made us aware of what can cause pain and what can be hard to bear. I found that very interesting.

You know that, according to Statistics Canada, only 49% of women who gave birth in 1998 got maternity benefits. That's a very small number. I think that the bill we have before us gives us an opportunity to get to a point where women will really be treated equally everywhere in Canada. We can use the example of Quebec where, at this point, women under provincial jurisdiction are already protected.

My question is for anyone and everyone who would like to answer. Have you thought about the process that might be used so that all women would be protected equally, both federally as well as by the provincial governments? Could we use workers' compensation?

The Chairman: Ms. Hall.

Ms. Louise Hall (Coordinator, Programs Section, Public Service Alliance of Canada): Of course, we are all interested in the process, although it is not our responsibility to set up the process. However, we would first need the Act to come into force so that people can come up with a process after that.

It would be possible for the Labour Department or Human Resources Development to set up a system or framework which meets that need. As you know, only Quebec has that type of system.

Today, those costs are paid out under Quebec's compensation legislation. How could this take place at the federal level, since the Federal Compensation Act is subject to provincial legislation? And yet, the legislation of most provinces do not provide for these benefits. How can we get around that?

There are two ways: either we create a special system within Human Resources Development, if, indeed, we can trust this department...

The Chairman: [Editor's Note: Inaudible]

Ms. Louise Hall: Yes? Very well. They've made headlines lately, haven't they?

The Chairman: I am here to erase any doubts.

Ms. Louise Hall: Bravo!

Ms. Monique Guay: I still have mine, Mr. Chair.

Ms. Louise Hall: If we amended Bill C-12 and created a system within that department, it would be possible to achieve this. It would also be possible to do so by amending the Government Employees Compensation Act.

Again, since 1980, the Alliance's position has been to endorse a federal compensation system independent of the provinces, which would provide equal rights for all workers. But now, federal workers fall under 10 different pieces of legislation under the terms of the Compensation Act, and the system can be very unfair depending on the province where it applies. We often tell our members to carefully think of where they want to work if they want better compensation in case of a work accident. Therein lies the contradiction.

So we have these two alternatives, and I believe this is what is currently under study. I think other systems have been established within government to raise money. This may help set up a new system.

Ms. Monique Guay: Would anyone else like to say something?

[English]

The Chair: Ms. Walker.

Ms. Cathy Walker: Yes. In our submission, what would make sense for us is if GECA, the Government Employees Compensation Act, were amended along the lines of the Quebec legislation so that it would have very similar provisions and there would be compensation provided.

• 1700

In the alternative, the Employment Insurance Act could be amended so that instead of just employment insurance for unemployment or for sickness, it would also include protective reassignment as well.

[Translation]

The Chairman: Mr. Bélair.

Mr. Réginald Bélair: I agree with what Ms. Guay said and with Ms. Turmel's response. However, it must first be clearly explained how the system works in Quebec. I'm not familiar with it and I don't understand what is at stake. How, exactly, does the system work in Quebec?

Ms. Monique Guay: Well, we have legislation on the protection of...

Mr. Réginald Bélair: Yes, but what is it called?

Ms. Monique Guay: Listen, I'm not an expert. Ms. Turmel could speak to that.

Mr. Réginald Bélair: Yes, Ms. Turmel...

The Chairman: One moment, please. Someone asked whether...

Mr. Réginald Bélair: We don't know what they're talking about. We just don't know.

The Chairman: Wait a moment.

[English]

I agree, Mr. Bélair. I don't think I'm as well versed in the Quebec legislation as I would like to be. Perhaps, Madame Guay, it's fine to ask the question, but maybe we could have somebody pinpoint the difference for us.

Mr. Réginald Bélair: Very briefly.

The Chair: It's not a problem. If we have an expert here...ah, we have one. Madame Lippel. I wonder if we could prevail upon you, Madame, to just spend a couple of moments—not more—indicating the distinction, which would help people like Monsieur Bélair and myself understand just what it is Madame Guay is asking to comment on.

Prof. Katherine Lippel: I can do it very briefly.

[Translation]

I will say it in French. The Occupational Health and Safety Act, not the Government Employees Compensation Act, but the Quebec legislation regulating the prevention of employment injury, which since 1981 gives a pregnant or nursing employee the right to ask to be reassigned to another position which is safer for her own health and that of her foetus or for her nursing infant.

In exercising her right, the worker must first receive a medical certificate identifying the occupational risks which must be eliminated. Her physician must consult with the Ministry of Community Health before signing the certificate. Once the certificate has been given to the worker, she in turn hands it to her employer, which is tantamount to demanding an immediate re- assignment.

If a new position cannot be found for the worker immediately, she has the right to go home and to receive 90% of her net salary until she gives birth. However, if another position is found for her—this can sometimes take a while—that period may be shorter.

The principle is the same for nursing mothers. To give you the whole picture, approximately 90% of the cases deal with pregnancy and birth and less than 10% with nursing because of the nature of the risks.

Mr. Réginald Bélair: It's paid entirely out of the employer's pocket?

Ms. Katherine Lippel: No. It is paid by the Commission de la santé et de la sécurité du travail, but the money comes from a general account. There is no experience rating. The employer does not have to pay. The money comes out of a general account, and it is equal to less than 5% of dues paid. About five cents out of every dollar paid by contributors goes into that account.

[English]

The Chair: I have a couple of other comments, if you could just hold on, Madame Guay. Because we're in a round table, I'm going to be a little bit more flexible in my time, especially since we don't have as many members as we had yesterday.

I have a request for a comment from Mr. Brazier and Madame Turmel, so I'm going to go to them first.

Don.

Mr. Don Brazier: We never made any comment on this issue, neither Harry nor myself. It was not something we expected would get a lot of play, although probably we might have guessed that it would, given the comments that were made when the bill was being debated earlier in the House of Commons.

Opposition with respect to the issues that we think are appropriate in terms of amending the bill was made clear by myself and Harry in terms of discussion. We don't think this is the process. We think it's injurious to the consensus process in the long run if we start introducing new, significant changes to a bill that was developed so carefully by the parties.

However, I think one thing is clearly obvious—

The Chair: If I could interrupt you, with specific reference to the item that was just explained by....

Mr. Don Brazier: I'm specifically relating it to the pay for pregnant women, the specific issue that's come up.

• 1705

One thing that's interesting to note, if I could draw an inference from some of the comments, is that part II of the Canada Labour Code is not the vehicle to address this. I appreciate that there are people here who weren't here yesterday, but there was considerable debate on this issue with the CSN and the FTQ, and neither of those organizations, when asked point blank by members of Parliament how they go about providing this, suggested that part II of the Canada Labour Code be amended.

The specific proposal of Madame Carbonneau was that there be something in the bill that would require the Minister of Labour to discuss with her provincial counterparts some mechanism to provide it.

I'd like to make an observation about the fact that we're spending an inordinate amount of time referring to the legislation in one province. We're a federal state, and the result of that is that we have two levels of government; we have two levels of legislation. There is labour legislation at the federal level and there is labour legislation in individual provinces, which are presumably designed by the people in those provinces to address the issues that are most important. That's why there's such a huge variation in the legislation.

Another way of looking at it is if it only applies in Quebec, that means it doesn't apply in nine other provinces. Why would you look at what's in one province when it doesn't apply in another? I think a more realistic way of looking at it is to try to assess it on its own merits, regardless of whether it's available in Quebec or anywhere else.

There are mechanisms for providing compensation that relate to work-related issues, as was mentioned at length yesterday. One is employment insurance. The government has proposed amendments to the Employment Insurance Act. They came out of the Speech from the Throne. I am also fully aware that there are women's groups that have objected to some aspects of the government's approach to this. Presumably there will be amendments proposed to the legislation. I would suggest that's one vehicle that's available.

The other, of course, would be through the workers' compensation programs in the provinces, presumably in the nine provinces. I think it's open to debate whether or not this fits into the concept of workers' compensation, but I don't think this is the place to debate it.

All I'm trying to say is that really this is not something that fits into, is intended to be, or has historically been covered by part II of the Labour Code. There are mechanisms for providing compensation to people unable to work. I mentioned EI and workers' compensation.

Part III of the code may not provide the compensation, but it does provide the protection to the individual who may have to be off work because of sickness or pregnancy; their job will be protected when they return to work.

The Chair: Thank you, Mr. Brazier.

Let me go to a couple of other comments around the table. We'll start with Madame Turmel.

[Translation]

Ms. Nycole Turmel: The only thing I would like to add is that the booklet we published in English and in French several years ago, entitled Protective Reassignment of Pregnant and Breastfeeding Workers, contains this definition and an explanation of the Quebec legislation, which you will find on pages 19 in French and 18 in English. These explanations could help committee members understand in what circumstances a woman may have the right to ask for protective reassignment or in which circumstances they fall under the Quebec legislation. It may help them better understand Quebec's legislation, but it might not necessarily provide the percentage, as Ms. Lippel mentioned.

The Chairman: Thank you.

[English]

Mr. Pizzino.

Ms. Louise Hall: I just wanted to make a few comments.

The Chair: You've just changed identity.

Ms. Louise Hall: Have I? Who am I now?

The Chair: I know who you are and you know who you are, but Mr. Pizzino thought he was the guy who was coming up next.

Mr. Anthony Pizzino: I think she was before me.

Ms. Louise Hall: I think I was. We're very democratic in the union.

The Chair: There's no TV to capture that, but....

Ms. Louise Hall: I just wanted to follow up on some comments that were made by Mr. Brazier. I think he's quite right when we say there were some consensus items. I think what I'd like to point out to this committee is that it takes so long to get a law passed in the federal system that by the time it happens, many studies have come out, many changes have been made—there's evolution. We all recognize that barriers to women in the workplace have to be removed, and I think we have to progress. This is a chance. When are we going to get another chance? I was part of the first review back in 1979, and it was passed—

• 1710

The Chair: We both had long hair then.

Ms. Louise Hall: Yes. It was passed and proclaimed in 1986, and now here we are. I think we submitted our proposal for amendments in 1991 or 1992, and we started negotiating.... Anyway, it's a long process. All that to say that changes happen, and if we're going to spend the time to pass the legislation, let's make it progressive and let's make it worthwhile rather than coming back to a lot of things that are.... It's going to be dated if we don't upgrade it as soon as we can and as best as we can.

The other issue is that when it refers to part III of the Canada Labour Code, there are difficulties for women. First of all, part III doesn't address health and safety. It addresses maternity in general. It allows for accommodation, but it also allows for leave without pay and benefits. A job is assured but not necessarily the job of that woman. I think there's some unfairness there. Furthermore, for our members under the public service, they would not be covered because they're not yet under the code. They have the Public Service Employment Act. So that's a concern.

I think the other issue of employment insurance...we know there's a surplus there, but it's easy to pick at it. It's not the purpose of it. It's really for maternity leave and to allow women to benefit from maternity leave once they have their child. There are some concerns when we talk about EI, sick leave, and other things. Maternity is not an illness. Maternity is a very normal process and we have to consider it as such. Unless there is an illness around it that requires that these benefits be tapped into, it is not.

I think we have to keep those issues in mind when we say we can't include it at this time. We think it could be done. We think there are ways of setting up a regime so that it could be administered properly, and we think the time is more than ever because we don't know when we'll ever have the time to do this again.

The Chair: That may be fair enough, Madam Hall, but I think one of the questions that came up yesterday, and I think you see it raised again today.... When I read the orders of the day, and when you read the title of the bill itself, it says it's “An Act to amend the Canada Labour Code (Part II) in respect of occupational health and safety, to make technical amendments to the Canada Labour Code (Part I) and to make consequential amendments to other Acts”.

I think the question, without trying to interpret what everybody else is saying, is whether, under this particular act, we are addressing something that goes beyond the scope of the intent of this act. While people yesterday, and perhaps today as well, felt it was worthwhile discussing these things, they questioned whether this was the most opportune place and the most opportune circumstances to deal with it.

I just raise that, not because I'm judging whether it is or it isn't, but it's a question that was asked.

Mr. Pizzino, did you have an observation?

Mr. Anthony Pizzino: I did. This section does something that is long overdue, and that is recognize—and I believe Louise mentioned it—that pregnancy is not a disease, and if there are conditions or situations in the workplace that are a hazard to either the mother or the fetus, those situations ought to be dealt with.

One of the areas that I think it is important to look at—not at how this is going to be done, but really the purpose of this—is, one, to provide that reassignment, but, two, all of the law as written is really a preventive law. So it's not just a matter of exposing one worker after another to the same hazard and then reassigning them, but really to look at prevention, and how you get to the point where you don't have to reassign folks because either their jobs are without risk or there are no hazards to those individual workers. I think it's important to look at that aspect as well, not just how you are going to get it done.

The Chair: I'm going to allow Mr. St-Jean to finish an observation before I go to the next intervener.

[Translation]

Mr. Denis St-Jean (Agent, Health and Security, Public Service Alliance of Canada): I simply want to correct something Mr. Brazier said. At the time they were considering giving women protective reassignment, Quebec lawmakers felt it was right to include it in the Occupational Health and Safety Act, precisely because it was a preventative measure. If we were to include protective reassignment in the federal government's compensation legislation, that would go against the fact that it is a preventative measure.

• 1715

If the political will is there, there is nothing to prevent protective reassignments from being included in part II of the Code and funding mechanisms can be implemented elsewhere than in the Act itself, as Quebec has done. So, in our view, it is clear that protective reassignment is exclusively a matter of prevention and not of compensation.

A point was raised yesterday by the FTQ, which I fully support. If we maintain the status quo, it would simply mean that women would still pay for the fact that they don't have access to protective reassignment. It's all very well and good to discuss grand ideas, but in the meantime, women who are not given the right to protective reassignment under part II of the Code or under the Quebec system will still be the ones who have to pay for the fact that this is not an option at the federal level.

The Chairman: Thank you, Mr. St-Jean.

[English]

We're going to go to Mr. Pat Martin.

Mr. Pat Martin: Thank you, Mr. Chair. And thank you to all those who made representations today, both the employers and the employee representatives. I'm actually quite heartened by the degree of cooperation that I'm sensing on some of the outstanding issues that we thought we would be able to change only by making a formal amendment to the bill.

I'm sensing, and I'm hopeful, that the report that comes out of this committee may be able to reflect the renewed consensus between the employer and the employee on at least some of these issues. With the definition of health, I'm optimistic that we can agree. The amendment I'm going to be putting forward does in fact call for the same language as in the CLC's report. And if the major employer group, the FETCO group, agrees with that, I would certainly hope the government wouldn't stand in the way, would not be the weak link in that tripartite approach to developing good legislation. So I'm optimistic there.

I want to thank the presenter—

The Chair: The committee's the government. If we can get that amendment through the committee, you're away to the races.

Mr. Pat Martin: Bingo. Absolutely. Hope springs eternal.

The Chair: It's about that time of year.

Mr. Pat Martin: That's right.

I'm glad people raised the situation of the Hill employees. They're the only group of workers in Canada I know of who are specifically barred from coverage under any workplace safety and health legislation. I think that's completely unconscionable.

I notice in the booklet, a very convenient book that I hope all the committee members read, that we came so close, just short of royal proclamation, to having these workers covered under at least part III of the Parliamentary Employment and Staff Relations Act, and they would have had some workplace safety and health coverage. I think this committee in this session of Parliament should deal with that once and for all, and call for signature and royal proclamation of that piece of legislation.

In regard to the definition of “employee”, I'm very glad we have here today Jeff Bennie, who is one of the leading authorities on this subject, and who we should recognize. If the definition of employee in part I of the code contemplates the dependent contractor, why then would we have any reason to not have the same apply in part II? It seems like absolute common sense, and an extension of what we know to be true in part I should also apply to part II.

Other than that, I really don't have a lot of comments. What I'm hearing, as I say, is quite heartening. There's a large degree of commonality between all the presentations from the various labour organizations. I'm optimistic that with the cooperation—and very generous cooperation—that I sense from the FETCO employers, we are going to be able to reach consensus at the committee stage and get meaningful changes through, and work towards that ultimate goal of seeing this legislation passed by the end of this session of Parliament. Ten years is long enough.

Thank you.

The Chair: You're quite welcome, Mr. Martin.

I guess there was no question there. So I'm going to go to Mr. St. Denis.

Mr. Brent St. Denis: I have a call coming, Mr. Chair. I wonder if you wouldn't mind passing the ball back to a colleague and coming back to me.

The Chair: Yes. Go ahead.

Madame Guay, you'll take his turn.

[Translation]

Ms. Monique Guay: I have two questions. First, I would like to ask Mr. Brazier and Mr. Phillips whether they truly believe that women are protected under the current legislation. I personally do not believe so, but I would still like to know what they think.

• 1720

As for you, Ms. Lippel, I would like to ask you whether you have found work for people who have run into problems with protective reassignment or with the law itself. Perhaps you can even tell us what it is you teach about this area? Are you involved in it? I would like you to give us other examples of women who have run into problems because their cases fall under federal jurisdiction. Thank you.

[English]

The Chair: Do you want to say something, Madam Lippel?

Prof. Katherine Lippel: I will let Mr. Phillips go first, and then I'll answer whenever you want me to.

The Chair: Thank you.

Mr. Phillips.

Mr. Harry Phillips: I think the question here was do we feel that the women are protected, which is separate, at least in my mind, from the issue that is being discussed. The issue being discussed is should we compensate women who are not at work as a result of their pregnancy?

As far as their protection is concerned, they have the right to reassignment under part III of the code. When the subcommittee was discussing this issue, we saw a gap—and that's why I used the term, it was meant as a bridge—between the right to refuse work that is hazardous to a person and the provisions of part III of the code that allow the employee to obtain a medical certificate. That's why the provisions that exist now in Bill C-12 are there.

As far as payments are concerned, it's our position that part II of the code is not the mechanism to allow payments for a female employee who is either pregnant or nursing. Similarly, we we feel that workers' compensation is not the mechanism for such a payment.

The purpose of part II of the code is to protect persons. The purpose of the workers' compensation legislation is to compensate persons for injury or illness linked with or arising out of their employment, and obviously pregnancy doesn't fall into that category either. It's our position that if the federal government wishes to compensate women who have to leave work because of their pregnancy, it should be done through some other mechanism, and not through part II of the code and not through workers' compensation legislation.

I would like to add that for the vast majority of federal employers, at least it's my understanding that there is no fund, as in Quebec, where it's a portion of the payroll that goes in to support workers' compensation. For the most part, federal employers pay 100% of the compensation.

The Chair: Madam Lippel.

Prof. Katherine Lippel: Perhaps I could answer, because I think there are several interesting points that have been raised and perhaps the way I presented has confused things.

It's very important to realize that you cannot have protective reassignment if you're having a risky pregnancy; you're not even eligible for protective reassignment. What I talk about in the brief and what exists in Quebec is when the workplace conditions create the hazard.

Proposed section 132 in Bill C-12, as proposed, addresses the issue, and therefore it seems to be relevant to part II, because we're talking about when the employment hazards, conjugated with the fact that the worker is pregnant, create a hazard, then what do we do? And what is being proposed in Bill C-12 thus far is: we'll think about it, and while we're thinking about it we'll pay you, but as soon as we're done thinking and we tell you it's dangerous, then you have to go home without pay or you can continue working in a risky spot. That's why I think it's really part II of the Labour Code that is the relevant vehicle.

[Translation]

It is the Occupational Health and Safety Act.

[English]

That is why it's not in our minimum standards legislation. Although I think it would be a nifty solution to use employment insurance premiums as some kind of fund, I think it's essential, if the objectives are going to be met, that you remember the purpose of this is that, when work is risky, it not be the individuals who have to undertake the consequences of that. The reason you want money for protective reassignment is not to pay people's maternity leave, it's so that people have real choices and that therefore there's more incentive to redefine the workplace to eliminate that danger. Right now the incentive is to say, if we tell you it's dangerous, once we're sure it's dangerous, then you have all the freedom to go home without pay if you want.

• 1725

The trouble with this is that if you're working with—I was going to say Atomic Energy, but I'm a lawyer, not a scientist—rayons ionisants, if you're working with lead, if you're working with dangerous products, that means you have shorter time with your baby than if you're working with non-dangerous products, because what happens is you end up taking your maternity leave because you're work is dangerous and not because you're not capable of working. That is why it goes in part II.

In terms of difficulties, Madame Guay asked me if there are difficulties that federal workers encountered. First of all, I'm not a practising lawyer. But when I did the book, I did notice, as did our researchers, that the federal HRDC people weren't using the retrait préventif that is in section 205.

So they're not having difficulties; it's just so redundant they don't bother. This tells me, as a lawyer, that we're not preventing exposure to dangerous substances for pregnant workers, and it's perhaps because it's in part III that it's not working.

The Chair: Okay. I'll come back.

[Translation]

Ms. Turmel.

Ms. Nycole Turmel: I would like to add something. Ms. Lippel was asked whether she represented or was in contact with employees who could claim protective reassignment.

We know. We represent the employees from that sector. We have to deal with those problems on a daily basis and try to help pregnant women in need of protective reassignment. We know because we represent women who work as meat inspectors, who work in laboratories, who are customs agents working in potentially dangerous situations, and women who work in immigration. We therefore know the situation of women who work in different areas which may call for protective reassignment.

As I explained in my presentation, you can compare the situation of women working in a correctional environment, but who fall under provincial legislation and therefore may ask for protective reassignment, with that of women whom we represent and who tell us they have to use up their sick leave, their annual leave and, ultimately, they must take unpaid leave and try to claim employment insurance benefits. If they have to go on extended leave, they automatically find themselves economically disadvantaged and therefore find it harder to raise their family or go back to work. This type of family situation can even have a long-term impact on future generations.

That's why protective reassignment is important. Up until now, only women have been able to bear children. That is not going to change.

The Chairman: Things have changed, Madam.

Ms. Nycole Turmel: But up until now, nothing has changed.

The Chairman: Scientific and medical innovations may bring about change.

[English]

Mr. Brazier.

Mr. Don Brazier: Mr. Chairman, I think all sorts of arguments probably could be made in favour of things like paid sick leave under part III of the Labour Code, or paid family leave. There is no provision for family leave under the Labour Code, but there are all sorts of arguments.

I think what we're dealing with here is a social policy issue; it's not an issue related specifically to the purpose of part II of the code. There's no reason, I suppose, part II of the code couldn't be amended to provide that anything related to a person required to take time off work because they were injured on the job or because it's sickness related should be paid. That's not the way we've done it in the country.

We have provisions already. Society, the politicians, the people who make the laws, have made determinations as to how we deal with these issues. That's why the unemployment insurance, now called employment insurance, provisions were amended many years ago, because they're not just for unemployment through lack of work. They were amended to provide compensation when people were unemployed because of sickness or unemployed because of pregnancy. That's the mechanism we have.

We are debating here a brand-new mechanism to deal with something that is being dealt with in other forums, both federally and provincially. We argue that the structure of the Canada Labour Code is not the appropriate mechanism. This is to deal with the question of safety and health in the workplace. There's no provision in it related to compensation for people who are unable to work.

As I've said, there are mechanisms for that and we all know around the table what they are. I think we have to look at it within that light.

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The provisions related to the pregnancy issue, as Mr. Phillips has pointed out, were specifically put in for a very narrow purpose, which was to cover a gap. They're not there for purposes of dealing with the question of compensation if people are not able to work because of pregnancy and the nature of the work they're doing.

The Chair: Thank you.

I'm going to go back to Mr. Johnston.

Mr. Dale Johnston: Thank you, Mr. Chairman.

I have two questions with regard to proposed section 126 of the bill. Mr. Phillips, in your presentation you said you would like to see paragraphs 126(1)(g) and 126(1)(j) consolidated and paragraph 126(1)(k) removed. Can you tell me why you'd like to see that paragraph removed?

Mr. Harry Phillips: Paragraph 126(1)(k) was one of the very few proposals by the employers. It was to ensure that if through prescription, through regulation, an employee were required to take medical tests, they would have no reason to refuse to do so. In fact, the law would provide that they had to do so. The way it's now being presented in the bill is that if they refuse, there is no penalty attached to that clause. Therefore, in our opinion the clause is meaningless. We know it's causing the employee representatives concern, and in good faith and to try to maintain a consensus, we would agree with them that the clause be removed.

Mr. Dale Johnston: Thank you.

I have one other question that is pertinent to that same proposed section. That puts the onus on an employee to report to the employer certain conditions that are unsafe or hazardous to the health or safety of an employee. I'll put this out to anybody who cares to answer. Do you feel there's sufficient protection from retaliation for that employee once that—

The Chair: Whistle-blower?

Mr. Dale Johnston: Yes, whistle-blower protection.

Mr. Harry Phillips: In our opinion, there's been no problem with that. That clause is currently in the code; it's in the current version of the code. As far as I'm aware, there's been no problem. I may hear a difference of opinion from the employee representatives. When we discussed this, really the discussion was to ensure that employees also reported contraventions. The intent was to simply add that phrase to the existing paragraph 126(1)(g).

Mr. Dale Johnston: Does anybody else care to comment?

The Chair: I don't know if anybody wants to comment, but if you do want to comment you have about three minutes.

Mr. Jeff Bennie: I think I can do it quickly.

The Chair: Okay, Mr. Bennie.

Mr. Jeff Bennie: Presently there's a section in the code, section 147, that basically is a bar on employers disciplining or taking any other form of action against workers for exercising our rights under part II of the code. There have been situations in the past.

One of the places where we find problems with this is with the right to refuse. With certain employers in the federal jurisdiction, workers exercise their right to refuse and the workers are suspended for exercising their right. Subsequently, there have been directions written by HRDC safety officers to the employer saying that was a violation of section 147 and telling the employer to reinstate whatever moneys have been lost, etc., and to remove any documentation from their personal files. So we do have that protection under the code.

Mr. Dale Johnston: In a one-word answer, then, do you feel they have sufficient protection? Would that be yes?

Ms. Nycole Turmel: I think that would depend on the interpretation or the way the employer wants to present it or to use it. We have an example right now with the Canadian Grain Commission in Thunder Bay, where the employees refused to work due to violence and problems in the workplace. It was recognized by health and safety that they were right, and the employer turned around and suspended all the executive in the place.

We are sure we'll win at the end of the day, but at the same time we need to make sure it is publicized and the employer accepts that the employees have some rights.

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The Chair: Surely there's never any protection against somebody who acts against the code as it would exist. The issue surely must be whether there is redress when somebody acts in a whimsical fashion.

Mr. Dale Johnston: What I'm really getting at, Mr. Chairman—and I think you realize this—is whether there is sufficient protection in the code as it is here before you to protect the whistle-blowers. I guess I'm hearing that there is.

Thank you very much.

The Chair: You're right, Mr. Johnston. I thought I heard that there was an affirmative answer to that question.

As you can hear, the bells started about four minutes ago. They're calling us to a vote in the House, and it will take us roughly ten minutes to get there.

On behalf of all committee members from all the parties, I want to thank all of you for having come here and engaged in this round table. I've felt very comfortable and I feel a bit more informed as a result. I think other colleagues feel the same way, so I want to thank all of you.

I hope you will avail yourselves of the committee's hospitality. It's a very light dinner, so you might think of it more as appetizers. You might tease your palate and then go and have a proper meal someplace else.

I want to thank each and every one of you for taking the trouble to come and share your experiences with us. I'm sure you'll see some of those thoughts reflected in the committee deliberations.

The committee adjourns until tomorrow morning.