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SOCI - Standing Committee

Social Affairs, Science and Technology

 

REPORT OF THE COMMITTEE

Thursday, November 28, 2013

The Standing SenateCommittee on Social Affairs, Science and Technology has the honour to table its

SECOND REPORT


Your committee, which was authorized to examine the subject-matter of those elements contained in Divisions 5, 10 and 11 of Part 3 of Bill C-4, A second Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures, has, in obedience to the order of reference of Tuesday, November 5, 2013, examined the said subject matter and now reports as follows:

Introduction

Your committee heard testimony on Divisions 5, 10 and 11 of Part 3 of Bill C-4, the Economic Action Plan 2013 Act, No. 2, over the course of three meetings. These divisions relate to the Canada Labour Code, the National Research Council Act and the Veterans Review and Appeal Board Act, respectively.

Division 5 proposes to amend Part II of the Canada Labour Code, which contains the provisions on Occupational Health and Safety. Briefly, Division 5 proposes a new definition for “danger”; to eliminate “health and safety officers” and “regional safety officers” and transfer their duties and responsibilities to the Minister of Labour; and, to enhance internal resolution mechanisms for employee complaints of workplace hazards.

Division 10 proposes to amend the National Research Council Act to add the position of Chairperson to the Council and to reduce the number of members from 18 to 10.

Division 11 proposes to amend the Veterans Review and Appeal Board Act to reduce the number of members on the Board from 29 to 25.

Summary of Testimony

  • Division 5 – Canada Labour Code: Occupational Health and Safety

The changes proposed to the Occupational Health and Safety section of the Canada Labour Code would change the definition of danger and would transfer to the Minister of Labour those duties and responsibilities currently delegated to health and safety officers and regional safety officers. Officials assured the committee however that the proposed wording reflects a preferred delegating model and that the reliance on health and safety officers and regional safety officers would not change. However, the committee heard from some witnesses that the Minister is not viewed as an independent expert and the proposed change jeopardizes the impartiality of investigations.

With respect to the proposed change in the definition of “danger,” the committee heard from some witnesses that the new definition ignores the fact that many substances are dangerous not because they result in an immediate illness but rather because they can produce illness following chronic long-term exposure or because they are particularly toxic to vulnerable populations such as pregnant and nursing women. Other witnesses suggested however that the concept of danger would not effectively change since there are no proposed changes to the provisions regarding hazardous substances, or to those for pregnant and nursing employees.

The proposed amendments in Division 5 would introduce additional requirements in the process that is followed when employees make a complaint or invoke their right of work refusal due to a perceived danger. In this regard, the committee was told that the proposed changes to the process include an emphasis on written reports, where currently much is accomplished verbally, and introduce an additional step in the role of the internal resolution process that is used to resolve complaints. These changes were described as positive changes that strengthen the process by supporters of the amendments and as detrimental changes that will intimidate workers and introduce unnecessary delays by those witnesses who do not support the proposed changes. The committee was told that proposed changes to the internal resolution process also include removal of the provision that requires the employer to stop any activity that has been found to be dangerous until it can be rectified, so as to protect all employees. The committee heard that this deletion could remove assurances that employees will be protected. Several witnesses testified that none of the changes proposed would impact an employee’s right to refuse work due to a perceived danger. However, it was noted that there is no right to appeal should the Minister decide that no investigation is required in a work refusal instance.

With respect to the purpose of the proposed changes, many witnesses referred to statistics that were provided by the labour program of Employment and Social Development Canada which indicate that about 80% of work refusal cases, that are not resolved internally by the employer and require investigation by safety officers, result in a finding of “no danger.” Although several witnesses questioned the source of these figures, departmental officials acknowledged that some form of health and safety actions were undertaken for a portion of these cases. It was suggested that refining the definition of danger may reduce the number of unnecessary claims.

  • Division 10 – National Research Council Act

The changes proposed to the National Research Council Act include the addition of the position of Chairperson and a reduction in the number of Council members from 18 to 10. The committee was told that the proposed structure, that is, having both a President and a Chairperson, is similar to the model in place at the Natural Sciences and Engineering Research Council. Further, it heard that the Council could operate efficiently with the reduced membership, possibly more efficiently, and that it could still achieve gender balance as well as satisfactory diversity of technological knowledge and adequate provincial and territorial representation.

  • Division 11 – Veterans Review and Appeal Board Act

A single change is proposed to the Veterans Review and Appeal Board Act which would reduce the number of members of the Board from 29 to 25. The committee heard concerns from some witnesses regarding the functioning of that Board at the present time and that the proposed reduction in membership is unlikely to improve the situation. While some testimony suggested that more members, not fewer, are required in order for the Board to meet demand, the committee also heard that a smaller Board has worked efficiently in the past but that administrative support for the Board now has too much influence on operations. All witnesses who did not support the proposals voiced the concern that the reduced membership would in practice be even lower given the pattern of recent years of failing to fill all vacancies. It was suggested that savings from the unfilled positions is being used to increase the administrative support. The committee was told by the Chair of the Board however that applications for review have declined by 25% over the last five years and that a full complement of 25 members would be sufficient to meet the workload.

Workload of the Board was described as being around 4,500 cases per year, of which 3-4% are for reconsideration of appeal decisions. While the Board has established a target of six weeks for reviews, there is no service standard for appeals or reconsideration requests. The committee was told that although reviews and appeals are being heard with little or no delay, requests for reconsideration have become backlogged. In fact, the Board resolved only 8 of almost 200 cases in the last year. It was further suggested that this backlog will continue to grow. This concern is based on a finding in a recent report by the Veterans Ombudsman that found a large proportion of Board decisions that were reviewed by the Federal Court were ruled to have resulted from errors in law or fact or because principles of procedural fairness had not been observed. The committee was told that the backlog is a priority for the Board and that it is currently focussing on clearing the pending cases.

A concern was also raised about the increasing dependence on video and tele-conferencing. The committee heard that although this may be a preferable format for some veterans it can be detrimental and not in the best interest of the veteran since these matters are often better dealt with in person. The concern was raised that there will not be as much regional representation with fewer members on the Board and that the reliance on video and tele-conferencing will continue to increase.

Committee Observations

Your committee has undertaken to study the amendments to the Canada Labour Code, the National Research Council Act and the Veterans Review and Appeal Board Act proposed in Divisions 5, 10 and 11 of Part 3 of Bill C-4, the Economic Action Plan 2013 Act, No. 2. It is disappointed that these issues have been brought forward in this way and were not the product of a consultative process. Your committee would also like to express its disappointment that ministers would not appear to explain the need for the proposed changes in divisions 5 or 11. It is hopeful that future requests for ministerial input will be accepted.

Specifically, with respect to the proposed amendments, your committee offers the following observations.

  • Division 5 – Canada Labour Code: Occupational Health and Safety

Your committee agrees that the proposed changes appear to strengthen the process of resolving instances of work refusal due to complaints of danger. It supports the added requirements for written reports and agrees that employees would retain their right to work refusal and would continue to be protected with respect to hazardous substances, including protections for pregnant and nursing employees. Some members are concerned about the change in definition of “danger” and suggest that there may be too narrow and restrictive. They point out that the current definition was the result of considerable consultation and that changing it without input from interested parties could be problematic. With this in mind, your committee suggests that the operation of the amended Canada Labour Code should be evaluated and we would welcome a report on this issue within twelve months. In particular, some members would like to verify that the work of health and safety officers has been re-focussed on prevention activities.

  • Division 10 – National Research Council Act

Your committee is supportive of the creation of the position of Chair on the Council and appreciates the distinction between the roles of the President and the Chair. It trusts that appropriate diversity of members can be retained in terms of industrial sector representation, linguistic profile, gender, regional representation and technological expertise.

  • Division 11 – Veterans Review and Appeal Board Act

Your committee shares the concern raised regarding the backlog of requests for reconsideration. While it is encouraged by the assurance of the Board that it has prioritized these cases, members are concerned given the large number of cases in backlog.

With respect to the delays experienced by our veterans in having their cases heard, your committee was pleased to hear that the Board has established a service standard for reviews and it encourages it to adopt service standards for the appeal and request for reconsideration processes as well.

Your committee commends the use of new technologies such as videoconferencing and teleconferencing as options available to the Board when hearing cases. It is hopeful that they are always used in the best interest of the veteran. Despite testimony that veterans view the technologies positively and that they are always given the option to have cases heard in person, we ask assurance that veterans are not pressured to opt for video or tele-conferencing and that their choice will not have any bearing on the timeliness of their hearing.

Finally, your committee is concerned that the Board has not had a full complement of members for several years. It is strongly recommended that a full complement be established and maintained, using all available options, in order that the Board can fulfil its mandate efficiently.

Respectfully submitted,

KELVIN K. OGILVIE

Chair


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