NRGO Committee Meeting

STANDING COMMITTEE ON NATURAL RESOURCES AND GOVERNMENT OPERATIONS

COMITÉ PERMANENT DES RESSOURCES NATURELLES ET DES OPÉRATIONS GOUVERNEMENTALES

EVIDENCE

[Recorded by Electronic Apparatus1]

Thursday, May 11, 2000

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[English]

The Chair (Mr. Joseph Volpe (Eglinton—Lawrence, Lib.)): Colleagues, ladies and gentlemen, I call the meeting to order.

We'll resume our hearings on 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.

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We have with us two groups of people. There was a series of others who had been contacted at the request of members of Parliament around the table, but they declined the invitation. I think, however, we'll probably have a thorough examination of the issue with the witnesses at hand.

We're pleased to have with us this morning the medical consultant for occupational health from Direction de la santé publique de l'Outaouais, Dr. Luc Bhérer. He is from from the Association des médecins du réseau public en santé au travail du Québec. Never let it be said that we will not have the point of view from those on the east side of the river. I think we have ample witnesses giving us an illustration of the way things function or ought to function. We're pleased that they came to join us this morning.

Dr. Bhérer, without further ado, let me just tell you that we accord you about 10 minutes to speak and then there will be questions back and forth. You have the enviable position of being there by yourself, so you may have questions from all the members here. I don't know how long that will take. By the way, Dr. Bhérer, you'll probably find that other members will come in a little later on as the relative whips will be moving members around the buildings.

For colleagues around the table, Dr. Bhérer has a mémoire. Unfortunately it's only in one language, so it will not be distributed as per our convention, but it will be available for everyone. Once it gets translated, it will be made available to all members.

[Translation]

Dr. Bhérer, you have the floor.

Dr. Luc Bhérer (Medical Consultant, Occupational Health, Head of the Occupational health services clinic, Outaouais Public Health Division, Association des médecins du réseau public en santé au travail du Québec): May I address the committee in French?

The Chair: Yes.

Dr. Luc Bhérer: I would like to begin by thanking the committee for giving the Association des médecins du réseau public en santé au travail du Québec the opportunity to speak to you about the matter at hand. I represent this association as well as researchers in the area of social and preventive medicine and professors at Laval University.

In the text, there is a small typo that I would like to point out to you so as to ensure that everyone has a good understanding of the short brief I am tabling with you.

For the past 20 years, a number of public health physicians have been working actively with attending physicians to apply the right of pregnant or nursing workers in Quebec to cease work on precautionary grounds. The relevance and importance of this protective measure for the health of women workers are undeniable, as has become clearer and clearer to us over time. While pregnancy is not an illness, it is nonetheless a very demanding life experience physiologically, biologically and socially, as well as a particularly vulnerable period for the child. Application of this provision in Quebec's Occupational Health and Safety Act has been an opportunity for a number of public health physicians in Quebec, attending physicians, and the workers themselves, to respond more closely to developments in knowledge about the effects of different working conditions on the health of pregnant workers and unborn or nursing children.

The analysis of a very large number of applications—roughly 20 000 per year throughout Quebec—has enabled us to observe that the work done by many women is very demanding and that a number of working conditions need to be modified because they represent a danger during pregnancy. In a study of some of the spin-offs of precautionary cessation of work, based on data observed in Montreal, Allison D. McDonald reached the following conclusions: precautionary cessation of work may make it possible to avoid, in Quebec, at least 340 foetal deaths—the case of six pregnant workers out of every 1 000—and this is where the typo is—and 110 premature births—the case of two pregnant workers per 1 000, every year. These gains, as Allison McDonald explains, are to a great extent achieved by the elimination of ergonomic constraints, which are by far the most frequent on-the-job problem.

There are still too few employers who have reorganized working conditions in a way that would enable pregnant employees to continue to work in optimum conditions. The challenging economic times of the past few years have often increased workloads while at the same time decreasing job and social security for many women.

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Between 1981 and 1991, 85% of women workers who received a medical certificate withdrew from their employment, although the Act's primary aim is to enable them to keep working. In certain sectors of activity, however, the picture is beginning to change and re-assignment is more common. We believe that application of the right of precautionary cessation may have contributed to these improvements. Since 1992, the rate of reassignment has gone up steadily, reaching 27,9% in 1998; a re-assignment sometimes lasts up to the time of delivery, sometimes for 25 or 30 weeks. We have also observed that precautionary cessation is utilized as it should be by a larger proportion of women as the level of difficulty of working conditions increases. This does not seem to be the case when precautionary measures apply only on the basis of a medical recommendation to stop work or on the bargaining power of women represented by labour unions.

The signatories to this brief have for a long time hoped that all workers in Quebec would be able to benefit from the same rights and the same protection during pregnancy. Too often, we have been forced to observe that because of a lack of provisions protecting both their health and that of the unborn child, their right to work and their income, many women workers must continue working in conditions that pose a risk to their health or that of their unborn child just because they work for an establishment under federal jurisdiction. But heavy lifting is not less dangerous for a baggage handler at the Kuujjuaq airport than it is for a cook in a Quebec City restaurant. As matters now stand, the former will be obliged to work as long as she can or as long as she has not developed complications, while the job responsibilities of the second can be lightened from the beginning of her pregnancy or she can cease to work. Neither can afford to be deprived of income for several months, especially at a time when she is expecting a child. It is difficult to understand how this discrimination can exist between residents of the same province, especially when the health of pregnant workers and their unborn children is at stake. We are not very familiar with the situation in other provinces, but it seems to us indispensable that all developed societies adopt measures to protect the health of pregnant workers and their babies and that women not be penalized occupationally and financially by the exercise of their right to such protection.

In our opinion, clause 132 of Bill C-12 is much too timid and will not protect the workers who need protection most. In the absence of adequate income and employment guarantees, along with the benefits that go with them, only women earning higher incomes, or with employers who have more manoeuvring room for modifying their duties, will be able to allow themselves the luxury of adequate protection for their pregnancy and their health—but at their own expense. But the most dangerous working conditions usually accompany the lowest wages, which will considerably limit the preventative scope of the Bill. Also, it would be very surprising if, with such weak provisions, employers and federally chartered enterprises went in for adequate re-assignment in any large numbers, or any more rapidly than provincially chartered enterprises have done over the past 20 years. If our reading of clause 132.(3) is correct, most workers will have to resume their dangerous work once their physician has come to a decision, because there is no provision protecting either their income or their job is they cease to work because their employer decides he cannot eliminate the risk or assign them to other duties.

With respect to nursing mothers, we believe that an extension of maternity leave is more appropriate and needed more urgently than specific protection for nursing.

We make the following recommendations. Clauses 132.(1), (2), (4) and (5) should be passed as they stand, but should specifically target pregnant workers. Clause 132.(3) should be replaced by provisions requiring the employer to eliminate the danger or re-assign the worker to duties that do not pose a risk. A complementary clause should provide for the protection of workers' income: will the employer pay them directly, will they be paid by the Commission de la santé et de la sécurité du travail with reimbursement provided by the federal government or will there be some other provision making it possible to achieve the same result?

The Chair: Thank you. Madam Guay, you have written a paper on this issue.

Ms. Monique Guay (Laurentides, BQ): Will you allow me to ask questions?

The Chair: No, the first turn will go to Dale Johnston.

Mr. Dale Johnston (Wetaskiwin, Canadian Alliance): Go ahead, please.

The Chair: He is a very gallant gentleman. Madam Guay.

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Ms. Monique Guay: He is very kind. We work with gentlemen here.

The Chair: They are from the West.

Ms. Monique Guay: Some of them.

Mr. Bhérer, thank you very much for having come to meet with us this morning. You have presented to us a viewpoint that completes the representations we have already heard and that committee members will I believe take note of.

Clause 132.(2) of the Bill reads as follows:

(2) The employee must consult with a qualified medical practitioner, as defined in section 166, of her choice as soon as possible to establish whether continuing any of her current job functions poses a risk to her health or to that of the foetus or child.

I would like to know if, in your opinion and in that of your association, a general practitioner who is not specialized in the area of occupational health and safety would be able to make as good a diagnosis as you, who are a specialist in work-related health problems or illnesses.

Dr. Luc Bhérer: Indeed, in order to be able to evaluate the risk, one must have a good knowledge of the work place environment, of the organization of work and in fact of all the determining factors in the workplace. This is why the Quebec legislator provided that it would be up to the attending physician, the one who has been following the pregnancy, to complete the certificate and consult the physician designated by the director of public health, an appointee with the necessary resources to allow him or her to qualify the workplace with a view to making appropriate recommendations based upon the workplace and upon the literature, that is constantly changing. Obviously, we are dealing here with very specific literature and it is in my opinion difficult for a doctor, alone in his or her office, to evaluate all of the dangers pregnant women could be exposed to.

Ms. Monique Guay: And to in fact come to a decision regarding the precautionary cessation of the worker.

Dr. Luc Bhérer: Yes.

Ms. Monique Guay: The Bill is silent as to the means put at the disposal of this physician in order to determine the health risks in the workplace. The physician is left to his own devices. Furthermore, the Bill is silent as to the physician's access to data held by the employer. In such circumstances, will the physician be in a position to carry out his work properly?

Dr. Luc Bhérer: Indeed...

Ms. Monique Guay: You have probably worked on occasion with general practitioners. You are a specialist in the area of precautionary cessation. Could you give us a comparison of the two?

Dr. Luc Bhérer: The practice of a medical practitioner who does obstetrics is already very demanding because he is called in at any hour of the day or night for deliveries. We would simply be increasing his workload if we were to ask him to phone the employer in order to obtain information, especially if it is a small business that, contrary to large corporations, does not have occupational health resources and has not carried out an analysis of the various jobs. This is generally the situation that you find in smaller establishments.

Ms. Monique Guay: We know that precautionary cessation decisions must be made quickly because of the possible danger to the child. Are you better able than general practitioners to reach a quick decision in such cases?

Dr. Luc Bhérer: Yes, absolutely. However, making a decision is one thing, making the right decision is another. To make the right decision, one must have the right information, which means rapid access to information. One must also have a thorough knowledge of the scientific literature available on these issues.

Ms. Monique Guay: One must truly call upon specialists in this field.

Dr. Luc Bhérer: It is for this reason that we believe that by consulting a physician who has acquired this expertise, the attending physician will be in a position to sign a precautionary cessation certificate that is well-founded, appropriate and relevant.

Ms. Monique Guay: I would like to ask one final question, Mr. Chairman.

You work in Quebec and you have a good knowledge of the work situation in the province as well as of the provisions of the Act relating to precautionary cessation. You have said that you are not very knowledgeable about the situation in the other provinces. Do you not believe that in the context of our study of Bill C-12 we have here an extraordinary opportunity to be pioneers at the federal level by passing a solid bill that will truly protect women in the area of occupational health and safety?

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Dr. Luc Bhérer: Absolutely, especially since the worker will not be faced with choosing between staying home without pay or returning to work in order to survive. Yes, this is an opportunity that should not be missed.

Most of the elements are in our view perfectly adequate and as a matter of fact we are recommending that they be maintained. If we were to give employers the complete freedom to decide what to do... We see that in Quebec there are not many of them that practice this even though they do not have the choice. This is why too often workers choose precautionary cessation so as to not burden the employer who has a lot of things to do also.

Ms. Monique Guay: Thank you very much.

The Chair: Thank you, Madam Guay.

Mr. St-Julien.

Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.): Doctor, what worries me is that on page 3 of your brief you talk about a baggage handler working at the Kuujjuaq airport. Could you tell me for which company she works? I know the answer, but I would like to have confirmation.

Dr. Luc Bhérer: In an airport. I imagine that it is the Kuujjuaq airport.

Mr. Guy St-Julien: Yes, but the airport belongs to Air Inuit, and there is another airline, First Air.

You state that a baggage handler employed at the Kuujjuaq airport will have to work as long as she can or as long as she has not developed complications, whereas everything will work out just fine for the cook working in a restaurant in the South. What leads you to make this statement? That is what I would like to know.

Dr. Luc Bhérer: In fact, the ergonomic constraints are the same for the pregnant woman working in a restaurant, who must move about sacks of potatoes, to give you an example, or buckets of various products, and for the baggage handler in an airport.

If a physician establishes that these activities constitute excessive constraints, the outcome will not be the same for the woman working in an establishment under federal jurisdiction and the woman working in an establishment under provincial jurisdiction. The latter will be granted a precautionary cessation whereas the employee of a federal establishment—if our interpretation of the clause in the Bill is correct, as I explain further down in the text—will have to decide between staying at home without pay or continuing to work until the constraints have a negative impact on her pregnancy. She might lose the baby, have premature contractions or encounter any kind of pregnancy complication. Various complications might occur.

Mr. Guy St-Julien: Do you have examples of situations that have arisen in Kuujjuaq?

Dr. Luc Bhérer: No.

Mr. Guy St-Julien: Fine.

Dr. Luc Bhérer: It is just an example.

Mr. Guy St-Julien: You talk about a restaurant in Quebec City. In my view, there are restaurants under federal jurisdiction in Quebec.

Dr. Luc Bhérer: It would be the same example...

Mr. Guy St-Julien: It is vice versa.

Dr. Luc Bhérer: Yes, yes. In fact, in an establishment under provincial jurisdiction, it would be precautionary cessation that would apply. If Bill C-12 in its present form is applied in an establishment under federal jurisdiction, the treatment will be different. In most cases, the burden would in the final analysis be placed on the women alone.

Mr. Guy St-Julien: If I am concerned with what you have said about Kuujjuaq, it is because it is in my riding. It is 2 000 kilometers from here. My riding is the largest in Canada. Why take an example in a remote community like Kuujjuaq? The situation could be the same for a baggage handler in the Quebec City airport.

Dr. Luc Bhérer: Absolutely. In fact...

Mr. Guy St-Julien: This is important, because I find...

Dr. Luc Bhérer: You are right.

Mr. Guy St-Julien: It is important to know this, because this is mentioned in your brief... I spoke with someone from Kuujjuaq this very morning when I was not aware of this. I will tell them this afternoon that mention was made of the fact that there might be such problems at the Kuujjuaq airport. I however do not believe it is the case because there is a hospital...

This is important. Ms. Guay wishes to say something, but I find that this is important in remote areas. It is important, whether you are in the deep Quebec, the average Quebec or central Quebec. In my opinion, when you give an example, you should be precise.

Dr. Luc Bhérer: Yes. As a matter of fact, I must tell you that I am not the main author of the text. We were several to contribute to its drafting. This example was to my mind more of an illustration of the situation but perhaps it was indeed ill-considered. It could have been the Quebec City airport, where the situation is absolutely the same. As to the restaurant...

Mr. Guy St-Julien: I find it ill-considered. To finish up with this issue of Kuujjuaq, Mr. Chairman, I would like to say that the federal government and the provincial government are fiduciaries of the James Bay and Northern Quebec Agreement with the Crees, the Inuit and the Naskapis. The governments of Quebec and Canada are fiduciaries most particularly in Nunavik.

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I agree with you that you have no precise example. I see the list of doctors. In your opinion, there are not more problems in remote areas than in the South, am I right?

Dr. Luc Bhérer: The problems are the same.

Mr. Guy St-Julien: Perfect. Thank you, Mr. Chairman.

Dr. Luc Bhérer: The problems are the same for pregnant workers. Wherever they are, be it in Kuujjuaq, in Quebec City, in Sept-Îles or in Hull, they are exposed to the same risks because the constraints are the same.

Mr. Guy St-Julien: That is what I wanted to hear.

Dr. Luc Bhérer: Absolutely.

Ms. Monique Guay: In Regina.

Mr. Guy St-Julien: No, no. That is really what I wanted to hear.

Dr. Luc Bhérer: Absolutely.

Mr. Guy St-Julien: I appreciate the fact that you have mentioned Regina and another province of Canada. Thank you, Ms. Guay.

The Chair: Thank you, Mr. St-Julien. Thank you, Madam Guay and thank you Dr. Bhérer.

[English]

You've given us yet another perspective on this particular issue. I thank you for it. Merci.

We're going to suspend for about one minute while we get the departmental officials up at the table. I think they're here already.

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The Chair: We'll reconvene the meeting, colleagues.

We welcome to the table representatives from the Department of Human Resources Development Canada. We're joined by Mr. Warren Edmondson, who is the assistant deputy minister for labour; Mr. Gerry Blanchard, the director general of operations, labour; Madame Michèle Beauchamp, program analyst for operations, labour; and Mr. Rick Seaman, program analyst for operations, labour.

Lady and gentlemen, thank you for joining us as we wind down our hearings on Bill C-12. I know you're familiar with the procedures of how we get things going. My understanding is that Mr. Edmondson will be addressing the issue or issues, as the case may be. He'll do that for about 10 minutes, and then we'll go into questions and answers.

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I'm sure, individually and collectively, you have been following some of the hearings and are probably very familiar with some of the issues that have been raised. It's up to you; I haven't read your brief, but if you want to address them during your presentation, that's fine. Otherwise, you'll have ample opportunity as we go into questions and answers.

Mr. Edmondson.

Mr. Warren Edmondson (Assistant Deputy Minister, Labour, Department of Human Resources Development): Thank you, Mr. Chairman and members of the committee. We are very pleased to be here. This legal project has been the subject of consultation between us and our workplace partners for some time, and we are most pleased to be here today before the committee.

Our minister, the Honourable Claudette Bradshaw, as you know, is very disappointed that she is unable to be here and meet with you today. I will speak to you on her behalf about Bill C-12.

Mr. Chairman, you've already introduced the labour program officials, but I will perhaps do it one more time and explain the roles the officials have in the labour program within the Department of Human Resources Development.

Mr. Gerry Blanchard is the director general of operations. It is Gerry's responsibility to oversee the administration of part II of the Canada Labour Code at the headquarters and regional levels, right down to the level of the health and safety inspectors across the country.

Both Michèle Beauchamp and Mr. Rick Seaman are program analysts in operations, and have followed very closely the developments of the legislation, or proposed legislation, since its inception. They have been very closely connected with our workplace partners.

My officials, who are very familiar with the technicalities of the legislation, and I will be very pleased to do our very best to answer any questions you may have.

Bill C-12 is a very important piece of legislation in that it signifies the Government of Canada's commitment to ensure a healthy, safe working environment for Canadians. In the minister's view, this bill addresses an issue that is primarily a human concern, and also an economic concern.

In federally regulated workplaces alone, between 30 and 40 workers die on the job every year. Another 60,000 suffer occupational injuries or illnesses. This represents more than one million person days lost annually, costing over $350 million in lost wages, medical aid, rehabilitation, and disability pension payments. Significantly more work days are lost annually in Canada because of injuries than due to strikes or lockouts.

Occupational injuries and illnesses cost the Canadian economy about $5 billion a year. That is a staggering financial burden, but it says nothing about the anguish and grief endured by those who lose loved ones at work, or by those who lose limbs or suffer respiratory diseases because of workplace hazards.

The occupational health and safety problem must be faced and we must face it together. That is to say, governments, employers, unions, workers, and health professionals must jointly attack this issue.

[Translation]

The Bill is the second of the government of Canada's three-phase reform of the Canada Labour Code. The significant amendments to Part II of the Canada Labour Code communicate this government's belief that initiatives which promote a healthier and safer working environment, which foster sound labour management relations and which encourage employee involvement in decision-making, constitute not only good social policy, but also good economic policy.

As committee members can appreciate, occupational health and safety issues are highly complex. Part II of the Code sets out a legislative framework for addressing those issues for employees who are within the federal jurisdiction, approximately 10% of the Canadian workforce.

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[English]

This workforce is critical to the economy of the country, as it represents a core infrastructure that provides for key economic linkages, both nationally and internationally. Under part II, the federal jurisdiction includes the federal public service; certain crown corporations; and industries declared by Parliament to be for the general advantage of Canada, such as grain handling and uranium mining, as well as industries that are international and interprovincial in scope, such as rail, road, and air transportation, pipelines, shipping, longshoring, banking, and telecommunications.

Part II of the code defines the duties of both employees and employers. It also establishes three basic employee rights in the area of health and safety. They are the right to know about hazards in the workplace and ways of dealing with them; the right to participate in correcting those workplace hazards; and the right to refuse dangerous work. Part II also sets out the processes and procedures to be followed in exercising those basic rights.

The last significant amendments to part II occurred in 1985. Since that time, both the Government of Canada and the stakeholder groups have identified areas of part II where changes need to be made. The resulting amendments were formulated first to ensure that part II continues to do what it is supposed to do; namely, to protect workers; second, to align part II with occupational health and safety legislation in other jurisdictions; and third, to modernize the approach to occupational health and safety regulation.

In the bill, five features are particularly important. First, as a result of the bill, local health and safety committees will be mandated to conduct regular workplace inspections and will be given increased powers in dealing with complaints. This means parties will be able to identify and solve problems quickly, as they arise.

Second, a management and an employee member of the committee will be empowered to investigate any unresolved complaint. If they find a violation of the code, they will ask the employer to give a written assurance of compliance. If they find an immediate danger, they will take the necessary action to stop the activity. If they cannot agree on a solution, a government health and safety officer will be asked to intervene.

Third, a health and safety policy committee at the corporate level will be required for enterprises with 300 or more employees. This committee will address a range of issues, such as injury prevention initiatives and awareness activities.

Fourth, the government is committed to helping establish family-friendly workplaces. The bill provides additional protection for pregnant and nursing employees. If an employee has reason to believe that an activity or condition, such as exposure to a chemical will adversely affect her, her fetus, or her child if she is breast-feeding, she will be able to withdraw from that work until she has had an opportunity to consult a doctor.

Fifth, the bill provides for regulations that will require every employer to develop, establish, and monitor, in consultation with the workplace health and safety committee, a prevention program appropriate to the size of the workplace and the nature of the hazards.

These are all important changes. They reflect the Government of Canada's commitment to occupational health and safety and its confidence in the willingness and ability of labour and management to solve their problems and issues in a mutually beneficial manner.

In closing, Minister Bradshaw wants to emphasize that the labour program took its consultative obligation in the drafting of the bill very seriously. In fact, the consultative process begin in 1993. Since then, information has been shared freely amongst stakeholders so the best possible solution could be found. This type of consultation is essential to ensuring that the needs and concerns of all stakeholders are met. The participation of both labour and management in the consultative process promotes a more effective voluntary compliance with the regulations.

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The stakeholders included all of the relevant agencies of the Government of Canada, the major labour organizations, and the major employers and employer groups. For the over 200 amendments proposed, the rate of consensus was over 95%. On behalf of the minister, I commend the parties for persevering throughout the process and for adopting a cooperative stance, and I thank them for their contribution to the legislation you have before you today.

The minister believes the bill is an important step in reducing the occupational health and safety problem this country faces. Let the workplace be what it is supposed to be: challenging, interesting, meaningful, and conducive to good health.

Thank you, Mr. Chairman. We'd be most pleased to do our best, as I said earlier, to respond to your questions.

The Chair: Thank you very much, Mr. Edmondson.

I'll go to the opposition members first. Mr. Dale Johnston.

Mr. Dale Johnston: Thank you, Mr. Chairman, and thanks to the department for the presentation.

In proposed section 146.3 of the bill, the two-step appeal has been removed. It also explains the duties of the appeals officer, but I couldn't find how the appeals officer is selected. Is he appointed by the minister on an ad hoc basis, or is this a permanent, salaried position? Could you enlighten me on how that's arrived at?

Mr. Warren Edmondson: The appeals officers are public servants and are appointed in accordance with the Public Service Employment Act.

Mr. Dale Johnston: Okay. And I'm sure there are public appeals officers and public safety officers around now, so would this mean an addition to the staff that's already there or an enlargement of their duties?

Mr. Warren Edmondson: I don't believe it would mean an addition to the staff. Certainly it's not the intention of the bill to add staff. It would simply redefine the role of what is presently referred to as the regional safety officer and rename that person or those persons appeals officers. The quasi-judicial function they exercise presently would continue.

There is an amendment in the legislation, which I'm sure my colleagues can elaborate on, that would to some extent enlarge the responsibility of the appeals officer in that he or she would be required to assess situations of no danger as well as those where danger exists.

Mr. Dale Johnston: This seems a fairly good spot to raise the concerns we've heard from both labour and management about the removal of the second stage of the two-stage process. What we've heard, or at least what I've concluded from testimony we've heard up to now, is if one of the stages is going to be removed, they would just as soon it be the appeals officer and have the appeal go directly to the CIRB. Would you care to comment on that possibility?

Mr. Warren Edmondson: Certainly we've heard from our workplace partners from both business and labour, to date at least in our consultations, a suggestion that there be a two-stage process. In other words, the appeals officer would represent a first stage of appeal, and the labour board, the CIRB, would be a second review process, if you will.

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We had some difficulty with that for two reasons, really. One, considering the fact that the appeals officer, what was the regional safety officer, was determined many years ago, in the late 1980s, to be a quasi-judicial tribunal, and the labour board also being another quasi-judicial tribunal, we had difficulty seeing the advantage of having a second quasi-judicial tribunal review the decisions of a first. In fact we could see likely the reluctance of the second quasi-judicial body to even consider those issues.

Secondly, it seemed to us that would be relatively inefficient and could result in delays. That was probably one of the principal reasons we had difficulty with the proposal.

In addition—and I'll ask Mr. Blanchard perhaps to give some of the statistics in a minute—this function has existed for about fifteen years, and the history is that it has worked, certainly in our opinion, relatively well, in that very few of the decisions of the regional safety officer have been overturned by the Federal Court. Perhaps Mr. Blanchard could just elaborate a little bit and give you some of the numbers, which would give you an indication of the history of the effectiveness of that role.

Mr. Gerry Blanchard (Director General, Operations, Labour, Department of Human Resources Development): Yes. Over the past, say, ten years, about 1,800 directions have been issued by our officers. Out of those, up to 1999, there have been about 179 appeals. Out of those, fifteen have gone to Federal Court, and in only two was the reason of the appeals officer reversed. So the process is working well.

There's a question also of the capacity to react fairly quickly. The turnaround time for appeals is good, based on the process that has to be followed, as in any other quasi-judicial process, but there's also that possibility of being able to react quickly if you have to. This appeals officer can literally get on a plane and go to a place if there is a work stoppage of that nature.

So we're averaging about 25 direction appeals per year, and only about 10% are ever appealed further to the Federal Court.

Mr. Dale Johnston: One of the concerns we heard during testimony was that the way it's set up now, your only course of appeal is through the Federal Court, and the expense, time, legal opinions, and so forth that are required to go to the Federal Court seem to be concerns of everybody involved. So how do you react to the suggestion that, rather than the appeals officer, you simply appeal it to the CIRB in the first place?

Mr. Warren Edmondson: Your question seemed to have two parts to it, I think. What was the first part again? I'm sorry.

Mr. Dale Johnston: The concern is that the way the legislation is written, your opportunity for appeal is really through Federal Court if you're unhappy with what the appeals officer has come up with, and there are concerns about the cost of legal advice, the time, getting a court date, and all of those things that go with fighting any kind of case in court. So what, if any, is your objection to the suggestion that the parties appeal directly to the CIRB in the first place?

Mr. Warren Edmondson: Let me say we're certainly empathetic to the concerns of both labour and management, in that we all want an efficient and effective process and would as soon have workplace safety issues dealt with quickly and by people who understand the technicalities of some of the situations they face. Whatever quasi-judicial tribunal would be responsible for hearing these complaints would conceivably be subject to the Federal Court reviewing those decisions should one of the parties feel that the quasi-judicial body felt that tribunal exceeded its jurisdiction or made an error in law, whether or not the decision-making rested with the current appeals officer or whether on the fact they'd found themselves at the CIRB. So I'm not sure there's any way to avoid the Federal Court as an appeal process.

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To answer your second question, the function is presently housed within the department. The role of the appeals officer, the evolution of the role into what the courts consider to be a quasi-judicial tribunal, exists in its present capacity. Whether or not it was situated in the department or whether or not it was administratively moved to the CIRB probably wouldn't make that much difference. But I think simply removing the process from the department over to the board would really be an administrative matter, not necessary a legal question.

If consideration is being given to eliminating the role entirely and transferring the responsibility to a labour board and having the members of the labour board, including vice-chairs, assume that responsibility, there are probably some legal ramifications that would and could impact on part 1 of the Canada Labour Code, which is the industrial relations part that sets up the labour board. Bear in mind also...it's a little more complex in that public servants are also covered by part II of the Canada Labour Code. However, public service industrial relations is covered by the Public Service Staff Relations Act, which has its own tribunal, the Public Service Staff Relations Board.

Questions would have to be decided on whether or not both boards would actually play a role, and both boards are constructed differently. The CIRB is a representative board, in that labour and management nominate representatives to that board, whereas the Public Service Staff Relations Board is not.

So it is not as simple as it may appear on the surface to in effect transfer that responsibility to the boards. However, an administrative transfer of the function from the department to the arms length board—in other words, remaining intact and having these people staff the board—is probably a little more easily accomplished.

The Chair: Thank you, Mr. Edmondson.

Mr. St-Julien.

[Translation]

Mr. Guy St-Julien: I will ask my first question. You have been in consultation for several months. Have you consulted the unions? Have you consulted the CSN in Quebec?

[English]

Mr. Warren Edmondson: My understanding is the CSN has been.... By the way, this process has gone on over a period of seven years, and there has been extensive consultation. Certainly the CLC and the CSN are major partners. The federal employers, I believe the Canadian Bankers Association.... My colleague tells me that the CSN was consulted through the Canadian Labour Congress—

Ms. Michèle Beauchamp (Program Analyst, Operations, Labour, Department of Human Resources Development): It would be up to the CLC to decide what unions will be consulted.

[Translation]

Mr. Guy St-Julien: I am asking...

[English]

The Chair: Let me ask the question I have and then—

[Translation]

Mr. Guy St-Julien: Yes or no.

[English]

The Chair: —I will defer to my colleague here. Was the CSN at the table?

Mr. Warren Edmondson: Was the CSN physically at the table?

Mr. Rick Seaman (Program Analyst, Operations, Labour, Department of Human Resources Development): The point of consultation with the unions was with the Canadian Labour Congress, and the principal players around the table at that time were representatives of the CAW, Canadian Union of Postal Workers, and a representative from the Public Service Alliance. They were the principal players, but under the umbrella of the Canadian Labour Congress, of which the CSN is a member as well.

Mr. Warren Edmondson: The answer to your question then, Mr. St-Julien, would be that the CSN was not directly at the table.

• 1155

[Translation]

Mr. Guy St-Julien: The CSN tabled a brief before the committee this week. I hope you will apprise yourselves of it. It contains good recommendations and it is important. It deals as much with Bill C-12 as with pregnant workers and their safety. The CSN makes recommendations but does not agree with certain clauses of Bill C-12. I would like you to familiarize yourself with their position and to tell the committee which things in there could be changed.

I will now come back to your brief. On page 3, you talk about two members of a committee. You talk about small businesses in remote regions. Will your bill apply to aboriginal reserves and to the territories?

[English]

Mr. Warren Edmondson: Yes, it would apply to the first nations reserves, which are presently covered by part II of the Canada Labour Code.

[Translation]

Mr. Guy St-Julien: Fine. Thank you very much.

The Bill increases the powers of the occupational safety and health committee in the sense that this committee could resolve problems as they arise without public representatives intervening as much as previously.

I have two questions. To what extent will the new powers resemble those provided in provincial occupational health and safety legislation? Secondly, would it be appropriate to abolish some of the powers envisaged and to add others?

[English]

Mr. Warren Edmondson: I will invite my colleague, who is much more knowledgeable with respect to provincial legislation and the practices of safety officers across the country, to respond. However, I would again remind members of the committee that what you have before you is in very large part a document that reflected the consensus of the business and labour groups across the country who supported in fact the role of the health and safety officers, the inspectors, the regional safety officers, as you see described in the bill.

Perhaps Mr. Seaman or Mr. Blanchard could comment.

[Translation]

Mr. Gerry Blanchard: If I understood the second part of your question correctly, I believe you stated that we had increased certain powers and that we had removed others. The short answer to that is that we have not removed any powers; we have increased the powers of occupational safety and health committees. I do not believe that we have eliminated any powers whatsoever, but we have granted new ones: the power to participate, the power to obtain information and the power to intervene in the workplace.

I did not get the first part of your question, dealing with the provinces or provincial agents.

Mr. Guy St-Julien: To what extent will the new powers resemble those that are presently set out under provincial occupational health and safety legislation?

Mr. Gerry Blanchard: There are a lot of similarities between the various legislative measures pertaining to occupational health and safety because we work in cooperation with our provincial colleagues. We have committees that meet to discuss what will be done, because the actions of one will have repercussions on those of the other.

Overall, the powers are very similar. I have not done an analysis of the powers of the various provinces, but I would go so far as to say that the new powers that will be established in the Code will be at least comparable if not superior to those that already exist. For example, I believe they would be about equal to those of the CSST in Quebec.

Mr. Guy St-Julien: Have you consulted with the provincial governments?

Mr. Gerry Blanchard: Yes. In matters such as this, we often talk to our provincial colleagues in order to hear their opinion, to learn from each other and to know what works and what does not work. In the area of occupational health and safety especially, we compare our data quite often.

Mr. Guy St-Julien: Have you consulted the medical associations, the medical consultants and the medical examiners of the provinces?

Mr. Gerry Blanchard: Our consultation process consists in bringing together around a table the unions and the employers. Often, to defend one point or another, they consult physicians or submit summary briefs for discussion. If there is something new on the market, we can make comparisons. We can make comparisons with the legislation in place in other countries, etc. All of this is taken into account when we discuss the different parts of the code or the different regulations.

Mr. Guy St-Julien: In closing, there are associations of physicians in the provincial public occupational health networks, be it in Quebec or in Ontario. Have you had the opportunity to consult with them? They are the ones who are working in the field and who meet with the patients. There are certain things the woman patient will tell her doctor because of the promise of confidentiality. I find this important.

• 1200

We would much appreciate having a list of the consultations you have had throughout the country. You say that you have been consulting for several years. It is important that we know what is going on. If I go back home into the deep Quebec and the doctor tells me that we are on the wrong track, we are far from any major urban centre. We are far from Ottawa.

[English]

Mr. Warren Edmondson: We can certainly provide you with a list of the people and the organizations we consulted.

The Chair: Would you give that to the clerk, please?

Mr. Warren Edmondson: Yes, we can do that. Thank you, Mr. Chairman.

It's important to understand what has been a tradition going back to the Department of Labour, when it existed, and remains a tradition within Human Resources Development Canada. That is, we consider our immediate workplace partners, the major employer organizations and the major unions, to be key players in our consultation exercises, as we do the provinces, which we consult through an organization of deputy ministers, by the way, on a regular basis.

There is an occupational safety and health subcommittee of deputy ministers, which meets twice a year—in fact more often in some cases—to compare legislative initiatives, to compare experiences, to look at best practices. As a matter of fact, at one time we even attempted to rationalize occupational safety and health legislation in the country, because it makes some sense to see, to the extent possible, whether we could simplify regulation of safety and health across the country.

So that level of consultation exists, but we rely heavily on our business and labour partners also to consult with their constituent organizations and perhaps doctors and doctor organizations. They're quite capable of representing their respective points of view and bringing those to the table. They're quite sophisticated in their ability to consult and to develop their positions. I can't speak for them. Certainly they've been here over the last day or two. Maybe they would have elaborated as well on whether they had opportunities, for example, in the case of either the CSN or the CLC, to consult with medical practitioners in order to enhance the point of view that they would have brought to the table.

[Translation]

The Chair: Thank you.

Madam Guay.

Ms. Monique Guay: I would like to begin by thanking you for having come here today. We obviously would have liked to have met with the minister, but unavoidable circumstances do arise.

I have several questions to ask you. Obviously, 15 years to revise an act is a long time. It was high time this got under way, and I hope that we will not have to wait another 15 years, because things change very quickly. New things are happening constantly. There are new illnesses and we never know what to expect next. Therefore, let us hope that this type of review will be done a little more regularly, perhaps every 5 years instead of every 15.

Earlier on, my colleague, Dale, asked you a question about the appointment of officers. I would like you to look at the Bill, because your answer did not convince me. Section 137.(1) says:

...five members to be appointed by the Minister to hold office during pleasure.

Section 140.(1) says:

The Minister may designate as a regional health and safety officer [...] any person who is qualified...

Section 145.1(1) says:

The Minister may designate as an appeals officer for the purposes of this Part any person who is qualified to perform the duties of such an officer.

You are telling us that this will not be the case, that it will come under the Public Service Employment Act, but it is not written into the Bill. The Bill clearly states that these appointments will be made by the Minister, and my fear is that these appointments will be interpreted as political in nature. Adjustments will therefore have to be made somewhere. If you are really saying that these people will be hired under the Public Service Employment Act, then this will have to be stipulated in the provisions I have just mentioned that state that these appointments will be made by the Minister. It is there in black and white.

Mr. Gerry Blanchard: The first section you mentioned was proposed section 137.(1), am I correct?

Ms. Monique Guay: Section 137.(1) of the Bill.

Mr. Gerry Blanchard: Very well.

Ms. Monique Guay: I also mentioned sections 140.(1) and 145.(1) and there are others as well. I did not mention all of them.

Mr. Gerry Blanchard: Very well. Proposed section 137.(1) applies to a very special case, that of the Coal Mining Safety Commission. It is true that in that case it is the Minister who will be making the appointments.

• 1205

Ms. Monique Guay: In the case of the appeals officer, the Bill says:

The Minister may designate as an appeals officer for the purposes of this Part any person who is qualified to perform the duties of such an officer.

If I understand correctly, the Minister is being given all of the powers. She will be able to appoint the appeals officers as well as...

Mr. Gerry Blanchard: Which clause is this?

Ms. Monique Guay: It is section 145.1(1) of the Bill.

Mr. Gerry Blanchard: When we answered Mr. Johnston's question, we spoke only about the appeals officer. We are dealing in fact with the regional safety officer, a position that already exists. This person is a civil servant working for the department.

Ms. Monique Guay: You are therefore telling me that under the Bill the Minister will be able to make appointments. That is what you are telling me.

Mr. Gerry Blanchard: No, no.

[English]

Mr. Warren Edmondson: If I may, Gerry, I think in proposed section 145.1, the minister makes a designation. We consider a designation not necessarily to be an appointment, a Governor in Council appointment, which I think is what you're referring to.

The Chair: So what do you mean by designation?

[Translation]

Ms. Monique Guay: It is the same thing.

[English]

The Chair: I guess that's the point. What's the difference between a designation and an appointment, if the minister is doing both?

Mr. Warren Edmondson: I guess I'm subject to the lawyers and the drafters maybe advising me otherwise, but the intent clearly is that somebody designated would be simply somebody identified to assume that role, as opposed to....

Mr. Dale Johnston: For that specific case.

Mr. Warren Edmondson: For that specific case, that's right.

Mr. Gerry Blanchard: There's no change with the present legislation.

Mr. Warren Edmondson: It's an empowerment, as opposed to an appointment. I guess it's a subtle difference. I am an employee, and I would be—

The Chair: It's not for me to try to find the explanation, especially because I'm not a lawyer. But I guess both my colleagues on the left side of the table have asked that question in a similar fashion, so if you can help the chair out it might clear things up for at least one person at the table.

When the department thinks in terms of a designation, does the department think in terms of designating someone who is already a member of the public service or a member of the department with the appropriate professional expertise, or does the department think in terms of identifying someone from the field, with or without pertinent expertise, who the minister directly must then, through an Order in Council, appoint to do a specific task? Which of the two is it?

Mr. Warren Edmondson: It is the former.

The Chair: Now, is there something wrong with making the legislation a little clearer, so that those of us who are from the laity would understand that designation really involves the devolving of authority from the minister, through the deputy, to the appropriate departmental officials for the tasks at hand?

Mr. Warren Edmondson: Mr. Chairman, I would see no difficulty, if required, in seeing if we could clarify in more succinct language what the intent of the minister is.

The Chair: Okay. I hope my colleagues on the left feel comfortable with that. That might be something that Mr. Reed, who is the vice-chair here, and you, through the appropriate parties, may offer up in consideration when we go to clause-by-clause.

If that's fair enough, Madame Guay, please continue with your line of questioning.

[Translation]

Ms. Monique Guay: I simply wanted to clarify that. I believe that this will be important in the future, especially if we continue to review the legislation only every 15 years. I believe we must take advantage of every opportunity to choose the proper terminology. As a matter of fact, we will be moving certain amendments to this effect. We will be tabling them with the committee shortly. I know, Mr. Volpe, that you are waiting impatiently .

Over the last few days, we have met various stakeholders, various witnesses. We have seen virtually all of the unions, including the CSN that was present and that, as Mr. St-Julien mentioned, tabled an excellent brief. The FTQ came, as well as the Canadian public service. Earlier, we heard from a medical practitioner specialized in the area of precautionary cessation. We also heard an expert on precautionary cessation from the University of Montreal who has as a matter of fact written an excellent book that is available in the Library of Parliament.

• 1210

The majority of these people shared with us their concerns regarding precautionary cessation. We know that the provision of Quebec's Occupation Health and Safety Act dealing with precautionary cessation goes much further than clause 132 of the Bill we have before us. Among other things, mention is specifically made of the reimbursement of costs incurred in the establishment of the existence of a risk for the pregnant or nursing woman.

These costs are not covered by the Régie de l'assurance-maladie du Québec. They are the responsibility of the worker. It is clear that this measure will discourage certain workers from invoking clause 132 of the Bill. Would it be possible to make some changes to this clause?

[English]

The Chair: It always takes a little while for the translator to catch up. It's okay.

[Translation]

Ms. Monique Guay: I speak too fast.

[English]

Mr. Warren Edmondson: What you have before you is proposed legislation that represents the results of extensive consultation between unions that represent workers across Canada and employers—which in many cases are national—who employ people across the country. It is not only a consensus, but I think reflects what is progressive, in our viewpoint, and moves a long way from certainly where we were, since the legislation did not contain similar provisions in the past.

I guess the short answer is what you have before you is the result of extensive consultation and extensive deliberation.

[Translation]

Ms. Monique Guay: I understand your answer, but you have not answered my question. You have not told me if you would be prepared to accept certain amendments so as to improve the Bill.

Over the course of these meetings with all of these witnesses, we have been told that proposed section 132 does not go far enough. The second thing is the disparity—and I will mention Quebec as an example—between Quebec workers under provincial jurisdiction and Quebec workers under federal jurisdiction, who will not have the same rights in the area of precautionary cessation and who will not have the same compensation if they cannot be moved to another job.

In a way, what I am saying is that if we were able to improve the Bill and to set an example for the rest of Canada, then perhaps in the future that would force certain provinces who are not taking on their responsibilities towards pregnant and nursing women to follow in the federal government's footsteps and become leaders. I am therefore asking you once again if the government might be open to certain amendments.

[English]

The Chair: I'm not sure that's a question the ADM can answer, Madame Guay, because that's a political question. But it's not up to me to make that decision for them. I think it probably is an important question to ask our colleagues around the table. The bureaucracy would probably be a little remiss.... I think they take direction—at least in theory, at any rate. They take direction and will make adjustments as they go along—unless this department's a little different from the others.

You're not in the habit of giving directions to the political branch, are you, Mr. Edmondson?

Mr. Warren Edmondson: Heavens, no.

The Chair: Never. It ain't so.

Mr. Warren Edmondson: Thank you, Mr. Chairman. That's probably the kind of answer I would have given. I don't think I can comment on that.

I think my earlier response is probably as far as I can go at this point. It is progressive. It is not necessarily identical to what you'll find in the province of Quebec. Nor is it identical to what you'll find in other provinces across the country. It is a significant improvement. It's the result of a very elaborate and extensive consultation. It is the conclusion that we and the minister have reached and the minister has brought through the parliamentary process.

• 1215

The Chair: My colleagues haven't asked this question, but since you touched on the issue, colleagues from both sides of the table have heard in the last couple of days that there have been some pretty good consultations and collaborative efforts to achieve the draft as it exists. In fact, you pointed out that over the years some 95% of all the amendments have found consensus amongst the three parties. Yet I think the last number we had was that seven out of seven interveners found that there was a little bit of a surprise in one of the draft amendments, and that was specifically related to the definition of health.

Is there a reason you achieved 95% agreement and then, when it came to this definition, some of those people felt surprised?

Mr. Warren Edmondson: The definition of health is probably not the only area where we find ourselves in disagreement with labour and management at this point. I'll allow my colleagues to elaborate a little bit, but I think there are really two reasons for that. One is a drafting issue. As you know, often we will reach agreement in principle on the substance of an issue with the people we consult, but when it comes to the actual drafting of legislation, of course we must comply with the drafting rules and consult with Justice in order to reflect what we believe is a substantive intent in appropriate legislative language.

The Chair: Is anybody here from Justice now?

Mr. Warren Edmondson: There actually is somebody from Justice here.

The Chair: He won't identify himself. Then he won't have to answer the question.

Mr. Warren Edmondson: That is one part of the issue. I think there's another piece that relates to the question of stress, which, as I understand the testimony of some of the witnesses, was another issue that concerned particularly the labour movement and perhaps the employers as well.

From our vantage point, when we came to drafting the bill, we had some difficulty with the language proposed. Not only was it not appropriate legal legislative language, but it would have given our inspectors in the field a responsibility to evaluate stress and inappropriate levels of stress, which would be a very difficult, if not impossible, task for them to do.

The Chair: Is that on the basis of a lack of expertise?

Mr. Warren Edmondson: Exactly.

I can perhaps allow my colleagues, who were much more deeply involved in the consultations than I was, to elaborate further.

The Chair: It's a very simple question. Before you address the question, I have to ask you to identify yourself and your title and your department and so on, for the record.

Mr. Jean-Pierre Aubre (Counsel, Labour Group, Department of Human Resources Development): My name is Jean-Pierre Aubre. I'm legal counsel for the labour program at HRDC and I'm a direct employee of the Department of Justice.

The Chair: So you heard my question, then.

Mr. Jean-Pierre Aubre: I heard the question.

The Chair: Why is it that from the point of view of Justice, the definition does not reflect what the others have suggested was the agreed-upon definition? Secondly, does it make a substantive difference in the legislation?

Mr. Jean-Pierre Aubre: I can properly address the first part, your first question.

I hesitate to call what has been put forth a definition. The wording that had been suggested through the consensus of the parties emanates from an ILO convention. According to my colleagues, who are specialists or experts in legislative drafting at Justice, the manner in which this statement is expressed is not conducive to it being called a definition because it does not really define anything.

• 1220

Basically, they took the wording of that statement, which read:

The term “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 indirectly related to safety and hygiene at work.

Some of those elements, such as the wording, are not found in the existing legislation. I'm sure you would agree, Mr. Chairman, that unless you totally rewrite a statute, you have to incorporate into the existing statute that is being amended wording that is consistent with existing wording in the legislation. That was the first part. For instance, if you are speaking of hygiene at work, the word “hygiene” is found nowhere in the existing legislation.

Secondly, I actually went back to the legislative drafters yesterday to reconfirm their position. Basically, as it is spelled out in the proposed statement, it is not a definition that would be enforceable. What they attempted to do, more or less, is take the pith and substance of what's being said and transfer it into legislative wording that would have been acceptable to incorporate in the statute.

I don't know if I've answered your first part, but the second part of your question related to a change in substance that would probably relate to ordinary workplace stress. That part would not come from me.

The Chair: I thank you for that explanation. I don't know whether my colleagues were happy with it, but I didn't ask it on their behalf; I asked it on mine.

We've gone through everybody at the table, but I think Mr. Johnston wanted to add something else.

Mr. Dale Johnston: Yes, I did, Mr. Chairman. Thank you for the opportunity.

I just wanted to make a brief comment on Mr. Edmondson's explanation about the appeals process. I thought it was a good explanation, but I have a bit of a problem. Because there was extensive consultation and a lot of the bill was arrived at through that consultation and through consensus, I'm really puzzled as to why there's so much resistance to the whole process. You can comment on that if you like.

Mr. Warren Edmondson: Resistance on our part or resistance on the part of the—

Mr. Dale Johnston: Whatever. There's dissatisfaction by both labour and management.

Mr. Warren Edmondson: I will say that it's not entirely clear to me either, to be quite frank, why labour and management both are seeking a second stage of appeal. I really can't speak for them, but my interpretation of the discussions I've had with them is that what they were trying to do and what they would like us to do is, to the extent possible, keep these issues away from the Federal Court. We would like that as well. We would all like to have a process that is what I would call efficient and that is fairly responsive, and also to ensure that we have the technical expertise available to make these kinds of decisions.

I believe what they might have been looking for was only one quasi-judicial process and possibly the capacity of the department to do its own internal review of directions of safety officers. The problem with that is that the internal review was viewed finally by the courts as being a quasi-judicial process. So you either end up with two quasi-judicial processes, which I tried to explain earlier does not make a lot of sense to us, or you end up with one. Then the question is about where it resides. Does it reside, as it presently does, in the appeals officer process, or does that process become eliminated, and does it reside then in one of the labour boards or in some other place?

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As I think I explained earlier, doing that other than administratively has some legal complexities associated with it in that we really touch on two jurisdictions, public service and private sector.

From our point of view as well, we share their concerns in wanting to have an appeals process that works and is effective, but we really never did get together on the identification of the problem.

As Mr. Blanchard explained earlier, the history of the appeals officer process suggests that there really have not been that many problems with it in that we haven't had numerous decisions of the appeals officer referred to the Federal Court, with certainly only two in its history overturned by the Federal Court. So we were somewhat reluctant to fix it if it didn't appear to be broken.

Mr. Dale Johnston: My only comment to that is that since the legislation seems to be written for harmonious reasons between labour and management, perhaps that would be a good area to clarify and clear up.

I also would like to touch on the point the chairman raised about the definition of health. What I guess I heard Jean-Pierre say was that he did not think that the definition of health, as it shows up here in the bill, would be defendable in a court.

Is that what I heard you say?

Mr. Jean-Pierre Aubre: Pardon me?

Mr. Dale Johnston: Did I understand you to say that, in your opinion, the definition of health in Bill C-12 is not defendable and would not withstand a court challenge? Did I understand you to say that?

Mr. Jean-Pierre Aubre: No, I didn't say that.

Mr. Dale Johnston: Then in your opinion it will?

Mr. Jean-Pierre Aubre: I think so.

Mr. Dale Johnston: Okay.

Mr. Jean-Pierre Aubre: Basically, what I said was that what had been suggested, that I read from the statement from the ILO, is not one that could be defensible.

Mr. Dale Johnston: Oh, okay.

In the code, for companies of less than 20 employees there is a requirement on them to have a health and safety representative. For companies with more than 20 there is a policy committee, and with over 300 there is a requirement for both a health and safety committee and a policy committee.

That seems to me like a bit of duplication. Could you explain the rationale behind that?

Mr. Warren Edmondson: Actually, I'm not sure your numbers are right in terms of the requirements of the legislation.

Mr. Dale Johnston: Correct me, then.

Mr. Rick Seaman: The intent of your question is correct, yes, that for workplaces with 20 or more employees there shall be a safety and health committee. That's been established. That's the way it is now. That's typical in most jurisdictions. For smaller workplaces there'll be a safety and health representative. Again, that's a model that's been followed for a number of years.

In this legislation what's new are the recommendations of the parties to establish a policy health and safety committee. Your question is on whether that is redundant.

The responsibilities of each of the committees are defined within the legislation. You'll find that although they're complementary, they are mutually exclusive. It's not a question so much of redundancy. The parties, in making their recommendations, have basically stated that there are issues that health and safety committees at the local level in the corporation have difficulty coping with. An example could be a delivery truck for some transport company. The health and safety committee decides there's a problem with the gate or the mesh in the back. The company has to change the way they purchase their trucks or the design of their trucks.

The local health and safety committee in that particular town is going to have an awfully hard time getting that decision upstairs. That's what the policy, also known as the corporate health and safety committee, looks at—the broad issues, the global issues, the umbrella issues. There's a certain amount of synergy in that, but that's what they do, and that's the position that's been taken by the people who have made those recommendations to us.

• 1230

Again, the duties of the committees are clearly outlined in the legislation. They're drafted in such a way that they don't overlap. They do tend to complement, and redundancy is not foreseen.

Mr. Dale Johnston: I have one final question. A very brief answer is perhaps all that's required.

How did they arrive at the magic number of 300 employees? Was that something that was arrived at through consensus, or did you just pluck that one out of the air?

Mr. Warren Edmondson: I believe it was consensus. The benchmark was one that seemed to make sense to the parties and to ourselves in view of the mix of both private and public sector organizations that the code regulates.

Mr. Dale Johnston: Okay.

Thank you, Mr. Chairman.

[Translation]

The Chair: Mr. St-Julien.

Mr. Guy St-Julien: I would first of all like to ask you what year precautionary cessation was set out in the federal charter and in the Canada Labour Code.

[English]

Mr. Warren Edmondson: I believe 1993 is the appropriate response.

[Translation]

Mr. Guy St-Julien: You are right, it was in June 1993. I remember, because I participated in the establishment of precautionary cessation. It all began in Val-d'Or with the case of pregnant woman whose application was refused by Voyageur in Abitibi.

I would like to have further details. In what year did your consultations begin?

[English]

Mr. Rick Seaman: The consultation to amend part II of the Canada Labour Code commenced actively in 1993, with the parties.

[Translation]

Mr. Guy St-Julien: Thank you. Ms. Guay asked you a good question earlier. We talk about drafting rules, but in my mind, the best thing that could happen for women would be to have rules protecting pregnant women. You know that in a small company, anywhere in Canada or in Quebec, when there is a problem, women will often not say a word to their boss.

Allow me to get straight to the point. As far as the political side is concerned, I can say that I understand. You will apprise yourselves of the briefs that have been tabled here from the beginning. Check and see what is going on.

My concern is with the 5%. You say that you have 95% consensus, but it is the 5% that worry me. Associations of medical practitioners, the FTQ, the CSN and others have appeared before us here. I am telling you to prepare your draft for the Minister, because often, on the political side...

I will ask you the same question: what is happening in the field? Drafting rules do not worry me very much. What I am interested in are the rules protecting pregnant women. That is what is important. I am here today thanks to a woman. And that is very important. Tell that to the Minister. You have seen briefs. There are amendments to be made; get them ready.

What we have to do is to find the right solution. Fifteen years from now, we may no longer be here. Ms. Guay asked you a very good question. We do not always agree, but this time, Mr. Chairman, we must find the solution, not in 15 years, 15 months or 15 days, but between now and next week. You must tell the Minister that there are problems somewhere.

This is important. I know that you are not going to give me an answer, but that is my message to you. We must establish real rules to protect pregnant women once and for all.

The Chair: Mr. Aubre will have a lot of work to do during the weekend, because it will be up to him to suggest something.

Mr. Guy St-Julien: Yes, for the protection of women. I could not care less about the drafting! It is pregnant women we must protect. Canada is large. Quebec is large. I am warning you. I know that you are serious people. Think about your mothers, because that is what is important.

Here now is my last question. You talk about businesses with 300 or more employees. What criteria have you based this level on?

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Mr. Gerry Blanchard: As Mr. Edmondson explained, this is based on a consensus within the group. The groups studied the activities of various companies. One of the reasons why we wanted a committee at the national level is that there are different working environments within companies. A large corporation will often have several establishments. At some point, there will have to be some coordination of all of this in the policies, etc. It is upon these criteria that we based ourselves.

Is there a specific reason why we set the number at 300 instead of 295? It is a number that all three sides agreed upon. It was based upon the limits within which we thought a small committee could be efficient. You need some coordination of a committee given that the company may have four or five workplaces as well as four or five committees.

In the example given, the local committee could solve the problem of the safety of the truck on its own, but that may only be appropriate for that specific case, whereas if there were a national committee, the company would be able to say that in its next order of trucks it will try to solve the problem everywhere.

Mr. Guy St-Julien: Will small groups be given incentives? It is not always easy for small companies with three or four employees. Will incentives be granted to these groups?

Mr. Gerry Blanchard: The small groups?

Mr. Guy St-Julien: Small groups of employees. You talk about companies with 300 employees, but what about the small groups of five to ten employees?

Mr. Gerry Blanchard: With regard to groups of five to ten employees, the act says that they will be entitled to a health and safety representative. When there are 20 or more employees, there must be a committee. Whether there are two, three or four employees, they will have the same access to health and safety officers.

Mr. Guy St-Julien: Will they be encouraged to set up committees? They might say that they do not have money. Will there be measures to encourage them to set up such committees?

Mr. Gerry Blanchard: In cases where there are 20 or more employees, they will not have the choice.

Mr. Guy St-Julien: Fine. And when there are fewer employees?

Mr. Gerry Blanchard: When there are fewer than 20 employees, we cannot force them to set up a committee.

Mr. Guy St-Julien: Mr. Chairman, this will be my last question.

I know that you have done good work. Between now and next week, so as to ensure that we have perfectly efficient protection rules, ask the pregnant women in your departments what is happening right now. Thank you.

The Chair: Thank you, Mr. St-Julien.

Madam Guay.

Ms. Monique Guay: I will try to be brief. Thank you, Mr. St-Julien.

I would like to remind you that the Liberals voted in favour of the bill that was passed June 1st, 1993 and that had been tabled by Mr. Gilles Duceppe, from the riding of Laurier—Sainte-Marie, who is leader of the Bloc Québécois. There is therefore some openness somewhere.

I would like to underscore two or three small things. There is something I do not understand. You say that there is a broad consensus, but for several days now, we have been hearing witnesses tell us the opposite. They are not saying that they disagree, but they believe that there are changes to be made to the Bill. When I hear say that there is perfect consensus, I tell myself that this is not true because people have told us the opposite here. I do not want to play partisan politics. These are people who truly want this bill to protect pregnant and nursing workers. The Bill does not go far enough in their minds and they have suggested amendments.

You will have all of the briefs at your disposal. Study them. As my colleague explained, it is essential that we take advantage of this opportunity to improve the bill, especially with regard to the definition of "health". Certain witnesses have told us that we were talking about normal professional stress and that they do not know what we mean by that. Could you answer this question?

I will now move on to something else. The young doctor who was here earlier representing the Association des médecins du réseau public en santé au travail du Québec stated that the Bill does not stipulate that the young woman who must undergo an examination to determine if there are risks for her health must see a practitioner specialized in the field of occupational health and safety. She might consult a general practitioner, but a general practitioner is not a specialist. She may therefore be placing her foetus at risk. That is one other thing that we have been asked to clarify in the bill.

I would therefore ask you to explain what normal professional stress is. Furthermore, I would like you to do your homework. You can be sure that we will be doing ours and that we will be suggesting amendments that I imagine, Mr. Chairman, the committee will be discussing here very soon. Thank you.

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Mr. Gerry Blanchard: I will try to answer your questions. I believe I know the reason why this notion of normal stress is mentioned and I can guess at the interpretation that will be given of it. I do recognize that it is not a simple thing. I believe that what is meant by this term is the stress that is an integral part of the execution of certain tasks. By their very nature, certain professions, such as that of policemen, are a source of stress.

Ms. Monique Guay: But this is not normal stress.

Mr. Gerry Blanchard: No, we are talking about

[English]

“effects of ordinary work place stress”.

[Translation]

By saying "the effects of ordinary work place stress are not considered to be a physical disease or infirmity or a mental illness", we are making room for other types of stress. This is a definition that could lend itself to interpretation. I believe the intent was to define that stress which is considered normal in the execution of certain tasks or in the exercise of certain professions.

Ms. Monique Guay: I agree with you that this definition can be interpreted in different ways. If an employer, a medical practitioner or a health and safety officer declared that it was not a case of ordinary work place stress, than the employee would not be entitled to compensation. We therefore must make certain changes in view of improving this aspect.

I do not like this definition of ordinary work place stress. Air traffic controllers come to mind. We cannot talk of ordinary work place stress in their case, even though their stress is linked to their work. It would perhaps be appropriate to redraft this definition. It might be preferable to talk in the Bill about stress linked to a worker's job. You have done a good job and I wish to assure you that you will be able to count on our support for any improvements to the Bill that you will propose.

[English]

The Chair: Everybody will be able to get on overtime. I'm not going to go into overtime, but I do want to ask Mr. Aubre one more question, if I could.

The CLC presentation, I think it was, suggested that there had been a consensus on proposed section 147.1. I don't know if you have that bill before you. This deals with disciplinary action. I'm going to read their recommendation:

An employer may, only after all of the investigations and appeals have been exhausted by the employee under Sections 128 and 129, take disciplinary action against any employee who the employer can demonstrate has willfully abused his/her right to refuse.

Now, as it reads, proposed subsection 147.1(1)—and by the way, they wanted to restore this particular definition—says:

If an employee exercises rights under section 128 or 129 while knowing that no circumstances exist that would warrant it, the employer may, after all of the investigations and appeals have been exhausted by the employee under those sections, take disciplinary action against the employee.

Now, as the resident expert from the justice department, would you please explain to me why some people would think the current reading in the draft is not as good as the consensus agreement?

Mr. Jean-Pierre Aubre: Sections 128 and 129 of either the existing code or the proposed legislation allow for an employee to exercise the right to refuse work that the employee considers dangerous. Obviously that right has to be exercised in good faith. If you do not exercise this in good faith—and I'm oversimplifying it, if you like—that means you're abusing your right. In other words, you're refusing to work while knowing that you have no reason to exercise that right to refuse.

At that point in time, it is still an exercise of a right to refuse, although abusive. There are a number of avenues of redress provided under the legislation.

At some point in time a safety officer may be called in to consider whether or not there was validity to that exercise. They may issue some sort of decision that may amount to being a direction to the employer to do something, or come to a conclusion that there is no danger. That in itself is also reviewable, with regard to what was discussed earlier on, by the regional safety officer, who it's suggested will become the appeals officer.

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Those are the types of appeals or avenues of recourse that have to be exhausted prior to an employer having the right to impose disciplinary action.

All of the recourses against the refusal have to be gone through, at which point of time, when they've been exhausted, if there's found to have been no validity to the exercise of that right of refusal, an employer then could impose disciplinary action.

The Chair: Okay. Let's suppose for a second that the chair understood all of that.

Voices: Oh, oh!

The Chair: What is the difference between the one that's being asked for by the federal employers, who supported the restoration of consensus to the amendment, which I read to you, and what you already have? They both go through the process that says you have to exhaust all the avenues before you can do anything, and somebody has to demonstrate a wilful intent to abuse. What's the problem?

Mr. Seaman.

Mr. Rick Seaman: Mr. Chair, the initial recommendations coming out of the group put an awful lot of emphasis on the fact that when discipline occurs, and that discipline is appealed to the CIRB, for example, or the PSSRB, the onus of proof is on the employer to prove that the employee abused their right.

When you look at proposed section 147.1, that onus is not there, and that's what's giving rise to concern. That onus is found in proposed subsection 133(6), where it talks about the CIRB's review of these discipline cases. It says that the burden of proof lies on the party alleging the contravention.

So it's just two different sections. It's split. Again, it's a case of drafting. It looks to some people like a single idea, and it looks to some other people like an abuse of rights here and then how to handle it over there.

The Chair: Okay. Thank you very much.

Gentlemen and lady, thanks a lot. You've been more than forthright in your responses to us. I think my colleagues are satisfied that they asked all of the questions they wanted to ask of the department. I took note of all the issues that have been raised, and you've addressed them, so for that I thank you as well.

I'm going to tell colleagues that we expect to go to clause-by-clause on Tuesday morning. I'm going to have a good lunch available in case we get taken beyond the time required. We're going to bill the department for the lunch, and hopefully we can finish that by the time it needs to be done Tuesday. There's no end to the time limit, but that's when I plan to start.

Mr. St-Julien.

[Translation]

Mr. Guy St-Julien: You asked us if we were satisfied. I think we will be on Monday. I was wondering if the officials might be present next week.

[English]

The Chair: I've already asked the minister's assistant, I guess, to make sure we have appropriate representation from the department and from the justice department so that as we sit in deliberation of the clause-by-clause, if need be we'll refer to some of the experts from the department.

I'm not sure this means they all have to be here, Mr. St-Julien, but together with the minister and her staff and the ADM, I think they will decide what the appropriate representation will be, just as long as we're able to refer to somebody, as I did a moment ago, when Mr. Seaman directed me to proposed subsection 133(6) to complement proposed section 147.1.

[Translation]

Mr. Guy St-Julien: Am I to understand that there is a possibility that officials from the department might table certain amendments next week?

[English]

The Chair: I'm not going to make a prediction on anything that's going to happen.

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I want to remind members of two last things before I let you go. Today by 3 p.m. I have to have the list from your parties of proposed witnesses for Bill C-11, and tomorrow by 3 p.m. your list of amendments for Bill C-12. Merci.

The meeting is adjourned to the call of the chair.