Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 13 - Evidence - June 5, 2014
OTTAWA, Thursday, June 5, 2014
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-5, An Act to amend the Canada-Newfoundland Atlantic Accord Implementation Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and other acts and to provide for certain other measures, met this day at 8:02 a.m. to give consideration to the bill.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Senate Standing Committee on Energy, the Environment and Natural Resources. My name is Richard Neufeld. I represent the province of British Columbia, and I am chair of this committee.
I would like to welcome honourable senators, any members of the public with us in the room and viewers all across the country who are watching on television. As a reminder to those watching, these committee hearings are open to the public and also available via the webcast on sen.parl.gc.ca. You may also find more information on the schedule of witnesses on the website under "Senate Committees."
I would now ask senators around the table to introduce themselves, and I will begin by introducing the deputy chair to my right, Senator Grant Mitchell from Alberta.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator MacDonald: Michael L. MacDonald from Nova Scotia.
[Translation]
Senator Massicotte: Good morning. I am Paul Massicotte, and I am a senator from Québec.
[English]
Senator Black: Good morning. Doug Black from Alberta.
Senator Seidman: Good morning. Judith Seidman from Montreal, Quebec.
Senator Wallace: Good morning. John Wallace from New Brunswick.
The Chair: I would like to also introduce our staff, beginning with the clerk, Lynn Gordon, to my left and our two Library of Parliament analysts, Sam Banks and Marc LeBlanc.
Today we are conducting our second meeting on Bill C-5, An Act to amend the Canada-Newfoundland Atlantic Accord Implementation Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and other Acts and to provide for certain other measures.
Honourable senators, this bill, whose short title is the offshore health and safety act, was introduced in the House of Commons and received first reading on October 24, 2013. After second reading, it was referred to the House of Commons Standing Committee on Natural Resources, which amended the bill and presented its report to the house on February 12, 2014.
It gives me great pleasure today to welcome in the first segment of our meeting from the Canada-Newfoundland and Labrador Offshore Petroleum Board, Scott Tessier, Chair and Chief Executive Officer, and Susan Gover, Legal Counsel. From the Canada-Nova Scotia Offshore Petroleum Board, we have Stuart Pinks, Chief Executive Officer.
Thank you for being here today. I understand that you each have some opening remarks, and after we will proceed to some questions and answers.
Scott Tessier, Chair and Chief Executive Officer, Canada-Newfoundland and Labrador Offshore Petroleum Board: Thank you, Mr. Chair. Before I turn to my scripted remarks, I would like to offer on behalf of Stuart, Susan and I our thoughts and prayers to those affected by last night's tragic events in New Brunswick.
As the chair mentioned, I'm Scott Tessier. I'm the Chair and Chief Executive Officer of the Canada-Newfoundland and Labrador Offshore Petroleum Board. Thank you for inviting me here today to speak on behalf of the board in support of this very important bill. My remarks this morning are consistent with those made when I appeared as a witness before the House of Commons Standing Committee on Natural Resources on December 2, 2013. I am glad to see the bill has been referred to the Senate.
The C-NLOPB sees Bill C-5 as a very positive development in offshore safety. In particular, we appreciate that the bill reflects the following principles. Occupational health and safety laws for the Newfoundland and Labrador offshore area should be at least as stringent as those for onshore. Joint jurisdiction of both the federal and provincial governments is recognized, and consideration has been given to an effective and efficient use of regulatory resources.
I want to acknowledge the tremendous effort that has gone into this initiative over a number of years by our staff, particularly legal counsel Susan Gover, who joins us today, and our former manager of operations, Howard Pike, who retired this past March. They brought great value to the development of this package through their expertise and advice to government officials.
Bill C-5 is an important piece of legislation in that it extends authority and fundamental principles of occupational health and safety to the offshore within the accord acts. It will provide a comprehensive legal framework to achieve the same protection for offshore workers that onshore workers currently enjoy.
The passage of this legislation would strengthen the way in which we and our colleagues in Nova Scotia conduct offshore safety oversight activities. These amendments create a formal legislative and regulatory regime for offshore occupational health and safety, and a more effective enforcement toolkit for our officers.
One of the significant changes proposed in the bill is that on matters related to occupational health and safety, the C-NLOPB will now report to the responsible provincial minister, the Minister of Service Newfoundland and Labrador. We look forward to formalizing our working relationship with that department through this new reporting arrangement.
The bill also reflects a hierarchy of responsibility in clarifying the roles of governments, regulators, employers and employees. It recognizes that the operator is ultimately responsible for ensuring worker safety in the offshore environment.
Bill C-5 also grants the offshore petroleum boards with the authority to disclose information to the public related to occupational health and safety. The C-NLOPB is committed to the principles of openness, accountability and transparency, and we are also committed to continuous improvement in these areas. The amendments in Bill C-5 will guide the C-NLOPB in our decision-making around information disclosure on matters of offshore safety that are in the public interest.
The C-NLOPB would also welcome the establishment of an advisory committee with representatives from industry, government and the workforce to provide advice on matters related to occupational health and safety.
As well, the new legislation will clarify any jurisdictional uncertainties respecting occupational health and safety matters; in particular, the right to refuse and the requirement for occupational health and safety committees. The C- NLOPB currently administers the provisions of the provincial Occupational Health and Safety Act on behalf of the province. Having these principles enshrined in legislation under the accord will ensure that the board has clear authority to enforce all occupational health and safety requirements.
An important feature of these amendments is that they ensure that the new occupational health and safety regime clearly applies to workers in transit to, from or between offshore workplaces. This would require that the federal Minister of Transportation recommend regulations related to the occupational health and safety of offshore workers in transit.
Transport Canada has regulatory responsibility for vessels and helicopters, but the C-NLOPB has an important role in passenger safety with respect to offshore workers. It is therefore important that the two agencies continue a coordinated approach to safe passenger travel to and from offshore facilities.
Since the crash of Cougar Flight 491 in March 2009 and the establishment of the Wells Inquiry by the C-NLOPB, there have been considerable improvements to offshore helicopter passenger safety. I think it's fair to say that out of those tragic circumstances the C-NLOPB is among the world leaders in this area.
Our actions following the tragedy have captured the interest of offshore regulators worldwide and we've shared our experience and expertise with other offshore regulators in other countries. The proposed legislative amendments in Bill C-5 will further strengthen Canada's leadership in this area.
I will close by saying that the safety of offshore workers is always our top priority. The C-NLOPB welcomes these amendments. We will be ready to implement them once they come into force. I want to thank you again for inviting us here today and giving us the opportunity to speak to this important legislative proposal, and I wish the honourable members of this committee all the best in their deliberations.
Stuart Pinks, Chief Executive Officer, Canada-Nova Scotia Offshore Petroleum Board: Good morning. Thank you for the invitation for the Canada-Nova Scotia Offshore Petroleum Board to appear before this Senate committee regarding Bill C-5, the offshore health and safety act.
The Canada-Nova Scotia Offshore Petroleum Board is the independent joint agency of the Government of Canada and the Government of Nova Scotia, responsible for the regulation of petroleum activities in the Nova Scotia offshore area. In carrying out its legislative mandate, the health and safety of offshore workers is paramount. It is with this in mind that the board is pleased to be able to communicate to the committee the board's support for Bill C-5, as we did previously on December 2 when Scott Tessier and I appeared before the House of Commons Standing Committee on Natural Resources.
While both the federal and provincial governments acknowledge the need for legislative change, the board took interim steps a number of years ago and developed its own set of occupational health and safety requirements based on a hybrid of best practices from existing provincial and federal legislation and regulations. At the heart of these requirements is an internal responsibility system, which, among other aspects, promotes a positive safety culture, the use of best practices, and holds both employers and employees accountable for safety.
Our current health and safety structure ensures that petroleum activities are conducted by regulated entities in a manner in which hazards are properly identified, and the associated risks assessed and then appropriately mitigated and managed.
The board's health and safety team is led by our chief safety officer, Mr. Keith Landra, who, alongside me, is appointed by and reports directly to the board. Reporting to Mr. Landra are several health, safety and environmental advisers, some of whom are also designated as safety officers under the current legislation. One of these safety officers has been designated as a backup to Mr. Landra in his capacity as chief safety officer, should he be unable to fulfill his role at any given time.
As a former chief safety officer with the board myself, I know first-hand the importance of having in place the appropriate organizational structure to assure that our decision-making processes recognize safety as paramount and environmental protection as a close second. I am pleased to say that our board has in place a governance structure to assure that this is indeed the case, and that to this end they have created a separate board committee responsible for oversight of our health, safety and environmental protection mandate. The committee consists of board members with extensive offshore oil and gas expertise and it meets regularly with our chief safety officer ahead of all board meetings and also on an as-needed basis. These meetings are designed to give the chief safety officer regular and direct access to board members in support of his important role, separate from consideration of the other aspects of the board's mandate.
The HSE committee has a number of functions, which include reviewing decisions taken to assure that decision making recognizes the paramountcy of health and safety. The committee also supports the chief safety officer in his role and provides advice as and when necessary.
Another key benefit of the HSE committee is that it acts as a system of checks and balances to ensure that all appropriate policies, systems, guidelines and memoranda of understanding are in place for ensuring regulatory due diligence, and that health and safety efforts are adequately resourced.
While our current occupational health and safety system has served us well, we welcome the changes in Part 3.1. The board staff has been intricately involved in the legislative drafting processes providing advice on an ongoing basis. We are encouraged to see that this legislation contains the legal framework and authority for a modern occupational health and safety regime in the offshore.
We are pleased to see that compliance and investigation powers of our occupational health and safety, operational safety and conservation officers have been modernized and made consistent in the legislation.
Another benefit of this legislation surrounds transparency. As a regulator of a high-profile industry we are frequently challenged with the task of releasing information. These new legislative amendments will ensure that we can disclose information related to occupational health and safety should it be in the public interest.
Lastly, our board feels strongly that each person has a responsibility for the overall safety of the workplace. Owners, interest holders, operators, employers, supervisors, service providers and frontline employees each have individual and shared responsibilities. Because this hierarchy is outlined in this bill, our board can make greater strides in directing and enforcing responsibility.
Furthermore, we are pleased to see that this bill legally enshrines employees' rights to know, to participate, to refuse and to be protected from reprisal. It is our belief that these changes will help to foster a greater sense of safety culture in Nova Scotia's offshore area.
Moving forward, our board will finalize the memoranda of understandings that have been negotiated with federal and provincial governments for the administration and enforcement of Part 3.1 and Part 3 of the legislation. On designated officers will be appropriately trained and we will implement the necessary changes to our policies and procedures ahead of the coming-into-force date for the legislative amendments.
Our HSE committee has proved to be an important function of the board and will continue to provide governance oversight as we move forward in implementing these amendments. Our staff will also work to inform operators and staff of these changes.
Overall, our board welcomes this legislation and looks forward to seeing its benefits become realized. Thank you again for the opportunity to provide the board's perspective on this matter.
The Chair: Mr. Tessier, on page 2 of your brief, the very bottom sentence, it says:
It will provide a comprehensive legal framework to achieve the same protections for offshore workers that onshore workers currently enjoy.
Can you give me an example of how offshore workers were not covered for the 10 years or 15 years that it took to develop this that onshore workers were covered?
Mr. Tessier: Probably the best characterization would be that it formalizes some of the more informal working relationships that we have with provincial occupational health and safety. As Stuart pointed out, the current arrangements do work well, but they've been more or less ad hoc and left to evolve over the years. We've enjoyed a successful working relationship with provincial authorities, but the bill transfers the full suite of onshore health and safety protection and regime to the offshore.
The Chair: I'm still not clear from that answer.
Mr. Pinks: Maybe I can add something to that. Currently the offshore workplace, both offshore Nova Scotia and offshore Newfoundland and Labrador, are not governed in totality by an occupational health and safety act, unlike any other workplace in Canada. What the boards have had to do in the interim, and what the Nova Scotia board has done in the interim, is affix occupational health and safety requirements as a condition of authorization of any activity that takes place.
We have taken what we consider to be the best of a variety of regimes, merged them into one, and enforced them through a contractual arrangement really, pending the legislative changes before us here today.
This bill will now mean that every workplace in Canada is covered by an occupational health and safety act, including the offshore workplaces.
The Chair: Thank you.
Senator Mitchell: It's interesting that both of you refer to what appears to be the same advisory council with representatives from industry, government and the workforce to provide advice on matters related to occupational health and safety. In the case of the Nova Scotia experience that board's been established, but it seems, Mr. Tessier, you imply that your board hasn't been established. You would welcome it. Is it just that Nova Scotia is somehow further ahead, and why are they somehow further ahead in this process?
Mr. Tessier: It's simply a different approach. We've relied on our board and the chief safety officer in that capacity, so we haven't established a separate advisory committee at this point. Having said that, as I mentioned in my remarks, we would welcome the establishment, and we look forward to working with that group.
Senator Mitchell: So it will happen.
Mr. Tessier: Yes, it is required under the legislation.
Mr. Pinks: If I could add — Sorry.
Mr. Tessier: I just wanted to jump back to the chair's original question, because Ms. Gover has nudged me with a specific example, which I think is what you were looking for. Under the new regime, offshore workers would be given, for a specific example, the right to participate in an investigation, which hasn't been spelled out clearly to date.
The Chair: Is that one of many, or is that just one?
Mr. Tessier: One of several, yes.
Senator Mitchell: Mr. Pinks, in your presentation, the second paragraph on page 1, you talk at some length about the fact that at the heart of these requirements is "an internal responsibility system which . . . promotes positive safety culture. . . . ." We spent a lot of time, as a committee, addressing that issue in a recent study that we did, and we met with Mark Fleming, whom you probably know.
Mr. Pinks: Correct.
Senator Mitchell: Professor Fleming gave us great insight into how that's not as obvious an effort — creating the safety culture — as one might consider. It can be quite nuanced and very complex to do that, both structurally and psychologically, in a corporate culture.
When you say "an internal responsibility system which, among many aspects, promotes a positive safety culture," what would some of the aspects that you are referring to there be, and how exactly are you focusing on the development, therefore, of safety culture?
Mr. Pinks: Like you have said, safety culture is a very complex field, and our three boards — the Canada- Newfoundland and Labrador Offshore Petroleum Board, the National Energy Board and the CNSOPB — have actually joined together on an initiative on safety culture that Mark Fleming has been integral in helping us develop. We have, very recently, put out a statement on safety culture. We published a statement on safety culture that really details to regulated entities what we perceive a good safety culture to look like, what the attributes of a good safety culture would look like, and what our expectations are of regulated entities in addressing and constantly improving safety culture.
Having the internal responsibility system, which is at the heart of any occupational health and safety system and which is ingrained in this particular act, in place and understanding the responsibilities of each and every party at the workplace does help to foster that safety culture.
Safety culture is a journey. When people look at most of the major accidents that occur in this industry and other high-hazard industries, safety culture comes forward as one of the key contributors, so regulators around the world recognize the importance of doing more to push industry to do more in developing a safety culture. I think the three boards in Canada are well down that path now of putting forward our expectations.
Senator Mitchell: Mr. Tessier, do you have anything to add to that by way of comparison?
Mr. Tessier: Just to highlight that the boards think of safety both in terms of operational safety and occupational health and safety, and that safety culture encompasses the people, the equipment and the processes involved in offshore operations. The bill is helpful in terms of driving occupational health and safety into the management systems that operators and the boards, as regulators, will use going forward.
Senator Ringuette: A few questions. Did both of your boards get the provincial delegation with regard to the Labour Code and the health and safety measures within those provincial codes?
Mr. Pinks: I'm not sure I understand the question.
Mr. Tessier: This is for occupational health and safety officers?
Senator Ringuette: The provinces are responsible for the Labour Code.
Mr. Pinks: Within their provinces, yes.
Senator Ringuette: Yesterday, we were told that the provinces, with regard to health and safety, were responsible for the offshore safety measures. Have you received, in the past, prior to what we're looking at today, a delegation of authority from the provinces with regard to health and safety issues?
Mr. Tessier: Our safety officers are currently appointed by the board, pursuant to part 3 of the accord acts. In addition to that, they're designated by the Minister of Services Newfoundland and Labrador to administer the provincial health and safety Act.
Senator Ringuette: The board is not responsible, but you have within the board employees that have that delegation of authority from the province?
Susan Gover, Legal Counsel, Canada-Newfoundland and Labrador Offshore Petroleum Board: Where the board is a jointly appointed board, we administer occupational health and safety now on behalf of the provincial minister.
Senator Ringuette: You have received that delegation of authority from the minister?
Ms. Gover: Yes.
Senator Ringuette: From Newfoundland and Labrador.
Ms. Gover: Right, because it is defined as social legislation in the accord act. However, we don't have specifically, in the accord act, provisions that would foster occupational health and safety matters unique to the complexity of the offshore area.
A workplace in the offshore area has several employers and several employees. Normally, in a provincial onshore workplace, you'd have separate occupational health and safety committees for the communication and promotion of safety culture. That may not be the most effective way. Through the joint management, recognizing that the Canada Labour Code also has a role as we do it on behalf of both ministers, in drafting the legislation, they took the best of the three regimes, Nova Scotia, Newfoundland and Canada, because it is not unlikely that workers in marine installations and structures will traverse between the two offshore areas. You want it to have that certainty for workers as well so that they, one day working in the Nova Scotia offshore area and then coming to Newfoundland, would have the same rights and responsibilities.
Senator Ringuette: Construction sites also have multi-employer health and safety committees.
Ms. Gover: Right.
Senator Ringuette: This is not unique.
This new measure also includes the responsibility for transportation safety that is under the current responsibility of Transport Canada, and I'm referring to the unfortunate incident with the helicopter. The safety of transportation relies on Transport Canada.
Ms. Gover: That's correct.
Senator Ringuette: You will be receiving the responsibility for transportation also?
Mr. Tessier: The board has responsibility for the safety of offshore workers and Transport Canada is responsible for the regulation of the safety of airframes and vessels.
Senator Ringuette: I'm talking about the transportation, the —
Mr. Pinks: The helicopter itself?
Senator Ringuette: Yes.
Mr. Pinks: That remains with Transport Canada.
Senator Ringuette: That will remain under Transport Canada?
Mr. Tessier: Yes, for the aircraft safety.
Mr. Pinks: For the aircraft safety.
Senator Ringuette: Okay.
Mr. Pinks: The safety of the passengers that are on that helicopter, travelling to and from the offshore workplace, will be covered under this act.
The Chair: Senator Ringuette, I'm sorry; can I put you on —
Senator Ringuette: I certainly would like more clarification. This is getting fuzzier all the time.
The Chair: I have a full slate, but I will put you on second round, if that's okay.
Senator Seidman: Thank you very much. Mr. Pinks, if I could please ask you a question about something you referred to in your presentation. You said that your decision-making process recognizes that safety is paramount and that environmental protection is a close second.
It is an interesting juxtaposition, given the responsibilities of the board. What I would like to ask you, if you could tell us, please, is: Are there competing demands here? Is there a conflict situation of some sort between the safety piece of your mandate and the environmental protection piece of your mandate?
Mr. Pinks: Stepping back slightly from that, the board's mandate, as currently structured, is fairly broad. We're responsible for the health and safety of offshore workers, environmental protection, local industrial benefits, resource conservation, and data collection and dissemination. Our mandate is broad. We recognize that the safety of people is absolutely paramount, as is environmental protection. We have put in place a decision-making process that recognizes those as paramount.
To your specific question regarding health and safety, and the environment, if we were faced with a situation where a person's life was in danger or we had to attend to a spill and attending that spill would put somebody's life in danger, we would err on the side of protecting life. If the safety risk can be mitigated and managed appropriately, then environmental protection remains paramount.
Senator Seidman: My second question is to Mr. Tessier and Mr. Pinks. It's my understanding from Bill C-5 that the boards are able to undertake research and commission studies related to occupational health and safety, injury, illness causes and preventive measures. I'd like to know if the boards perform this research activity under the current regime. Will this be a change? What is the decision-making process to determine the areas that you might study?
Mr. Tessier: I can give one specific example of work undertaken by the C-NLOPB subsequent to the Wells inquiry. We undertook a number of research initiatives related to the human factors in offshore survival, and the use of wave height technology in offshore helicopter travel. Certainly, we have undertaken some relevant R&D pre-Bill C-5.
Senator Seidman: That's relevant. Is your research reactive to a given situation, or do you do preventive research?
Mr. Tessier: The examples I gave were in response to the Wells inquiry. Those were admittedly reactive. We do more proactive types of initiatives with respect to personal protective equipment and that sort of work.
Senator Seidman: I ask because this committee undertook a study during the crisis in the Gulf. One area that I pursued consistently was R&D and whether the boards were encouraged to be proactive not only in how they develop oil offshore and get the oil out of the sea, but also how they protect their employees — in other words, to do R&D on these very aspects of safety.
Mr. Tessier: Yes. I'd add that we certainly encourage the offshore operators, the industry, to be proactive in that regard. The Atlantic Accord has provisions to create incentives for that type of behaviour through research and development credits available and vetted through the boards.
Mr. Pinks: Significant amounts of money are put aside by industry in accordance with the legislation for research. In Nova Scotia, an example on the proactive side goes back to safety culture. Dr. Mark Fleming has been involved in industry-funded research on safety culture and how to measure and advance safety culture in an offshore workplace.
Senator Black: I thank you all for being here and thanks for the contribution that you make.
For the record, I'd like confirmation of whether both of you are able to confirm for us that with your current health and safety provisions, which will be augmented by these amendments, one would hope, we will be able to create the safest offshore working environment in the world.
Mr. Pinks: That would certainly be our goal. Looking at the track record of the offshore industry in Canada and comparing it statistically to other jurisdictions around the world, we have a good track record. If you compare the offshore industry to onshore industries in a number of different sectors, you'll find that the safety performance is better in our workplaces than in a number of workplaces in other industries onshore.
Will legislation guarantee that you'll never have an accident? No. But certainly it gives us the tools to continually drive improvements in health and safety performance.
Senator Black: Mr. Pinks, where would you suggest there might be possible room for improvement today?
Mr. Tessier: Let me back up one second before I go to the areas for improvement. Stuart and I both participate in the International Regulators Forum that meets annually, where we sit with eight of our counterparts from around the world. Canada should be quite proud of our participation — and we really do punch above our weight at that table. We can't ensure that Canada's offshore is the safest in the world as the ultimate responsibility is with the operators. It's really up to the operators to ensure that they have the safest possible operations in the world.
Senator Black: You regulate.
Mr. Tessier: We provide the oversight of operator activity. That's right.
Senator Black: You have a meaningful role in ensuring that.
Mr. Tessier: Yes, absolutely. I'd agree with that.
In terms of room for improvement, our Chief Safety Officer and I have identified several areas where there's room for improvement on the part of the operators with respect to safety. There's a concerning trend in the number of what's referred to in the industry as "dropped objects," falling objects. Training and competency are certainly areas of concern. Rigs are being built faster than people are being built to occupy them, so it's hard to keep up with the training and competency demands.
In Newfoundland, we have several older facilities, so aging facilities has been an area of concern. We can improve in terms of global standards. There are both opportunities and challenges in the push to global standards, and there's always room for improvement with respect to information-sharing so that when an incident happens with one operator, that needs to be better communicated throughout the community locally; and it's simpler than ever to do it globally as well. Those are five areas we've identified where there's room for improvement.
Senator Black: Can you assure us that you're aggressively moving forward on those areas for improvement?
Mr. Tessier: Absolutely. We're tackling them on a daily basis. We just had a very successful safety forum with operators and the workforce that focused exclusively on the training and competency challenges faced in the offshore.
Mr. Pinks: Scott referred to the International Regulators' Forum, of which we're active members with 10 countries from around the world with offshore jurisdictions, including major jurisdictions like the U.K., the United States, Norway, Australia and others. We're a small jurisdiction, so it's useful to us to be able to look at global trends rather than just local trends because problems that exist around the world are most likely to appear in our jurisdiction, and because of the small amount of activity, we may not have noticed them directly. We're working with our partners, if you will, from the IRF, and safety culture is one of our top priorities.
The whole matter of well control is really about incident prevention. The Macondo accident in the U.S. in the Gulf of Mexico was a well-control incident. In hindsight, it should never have happened. We need to focus our internal resources on making sure that operators prevent those types of incidents from occurring. An awful lot of work is being done around the world that we're learning about and bringing into our jurisdiction to make sure that well-control incidents don't occur or, if they should occur, they can be immediately brought under control and not lead to the type of catastrophe that we saw in the Gulf.
Another area that is front and centre not only in our area but also around the world is workforce engagement. It's making sure that we, as regulators, industry and workers all have a part to play in assuring safety. We've pointed out to the industry in Nova Scotia, and continue to do so, that we want more workforce engagement. When they come to us looking at possible changes in approaches to the way they do things, we ask if they've talked to their workforce and whether it has bought into this.
Scott mentioned training and qualifications. That's an area of high priority, making sure people are appropriately trained and competent to do their work, and likewise adoption of global standards.
We never seem to run out of work to do. It's an area where we just strive for continuous improvement.
Senator Massicotte: My question has been answered.
Senator Wallace: Gentlemen, my understanding is that Bill C-5, among other things, would provide new powers to the offshore board safety officers. Perhaps either or both of you could comment on those new powers and how you would see them impacting safety and offshore operations.
Mr. Pinks: One of the significant changes is order-making capability for safety officers, both the occupational health and safety officers and the operational safety officers that currently exist in the legislation. To issue an order right now, the bar is fairly high. They can issue an order to cease operations if the continuation of such operations is likely to result in serious bodily harm, but that's a fairly high test. There are safety infractions that we will find, or our officers will find when they're offshore, that need to be corrected, but they aren't likely to lead to serious bodily injury. We have mechanisms now of dealing with that through audits, inspections and follow-ups, but now we can actually issue orders to address those situations.
Other legislation is coming through as well — they changed its name. Is it the energy security act? Is that the name of it now?
Ms. Gover: Yes; Bill C-22.
Mr. Pinks: It's Bill C-22, which includes administrative and monetary penalties. When it comes into law, it will give us another tool for enforcing compliance.
Mr. Tessier: What Stuart has described is an entirely new tool kit available to our safety department, our safety officers, with respect to enforcement, order-making and warrants. It's a new game.
Senator Wallace: In reviewing Bill C-5 and the material behind it, I found it confusing, seeing there's this reference to occupational health and safety issues and operational issues, trying to distinguish between the two; where federal and provincial responsibility lies with each; and how Bill C-5 would impact that. I'd be interested in any comments you might make about this. At least in my mind, there seems to be an ambiguity between occupational and operational safety issues. Have you encountered that as being an ambiguity? If so, how would Bill C-5 clarify that?
Mr. Pinks: It's difficult to completely separate the two, namely, operational safety from occupational health and safety. That was one of the big challenges at the onset of writing this legislation. We've ended up with the best of both worlds.
Officers at our board, depending on their training and their competencies, could be appointed both as an operational safety officer under Part 3 of the legislation and also as an occupational health and safety officer under Part 3.1, which now gives that officer the ability for whatever situation they see. It takes away the argument of whether it is operational safety or occupational health and safety, because they can exercise their authority under either or both at the same time.
Senator Wallace: The impact, then, of Bill C-5, in clarifying that. It would enhance safety and offshore operations, is that right?
Mr. Pinks: It would take away any challenges such as, "Wait a minute. You're operating on one side of the fence or the other." We can operate under both.
Senator Wallace: Sometimes the most challenges arise and delays take place in —
Mr. Pinks: If you ended up in a prosecution, for example, you're dealing with legal interpretations.
Mr. Tessier: You're absolutely right. It is a complex jurisdictional field. Senator Ringuette's questions about aircraft travel, in particular, highlight an area that's even more complex with respect to who does what. The bill is helpful in terms of better defining, clarifying and confirming the roles and responsibilities among agencies.
Senator Patterson: Thanks to the witnesses for being here. I'd like to welcome Mr. Tessier back to Parliament Hill.
We've talked about the relationship with provincial occupational health and safety regimes and how that's changed through this bill. I'd like to ask about the Canada Labour Code. Following the enactment of this bill, how will the Canada Labour Code apply, if at all, to occupational health and safety in the offshore area? I'm asking because Bill C- 5 proposes certain amendments to the Canada Labour Code. I'm curious why that's in there and if the Canada Labour Code does apply now under this bill to occupational health and safety in the offshore.
Mr. Pinks: The actual Canada Labour Code does not apply in the offshore. This bill is the Canada Labour Code, if you will, that's applicable to the offshore.
Mr. Tessier: I think the way forward is that the federal Minister of Natural Resources would consult with the federal Minister of Labour on matters with respect to Bill C-5.
Senator Patterson: I guess it's fair to say the committee was quite overwhelmed with the size of this bill and its technical nature — 263 pages, I think it is, with appendices. You've got a new regime now that will apply to the board and to all your employees. Does this require that employees of the board be given an orientation on the new regime? Are you taking steps to do that, assuming the bill will soon be law?
Mr. Pinks: We have initiated internal training for our officers in the new provisions. Having said that, you're right; it is a complex, lengthy bill. However, the majority of the provisions that are in there are reflective of the current regime that we are currently enforcing in the offshore through our administrative route in the absence of this legislation. The impact of the changes is not substantial, but there is still a familiarization and training required to make sure that people fully understand the meaning of each of the provisions.
Mr. Tessier: A lot of what's in the bill is a codification of current practice. I think senators should take heart by virtue of the fact that we are working well with other agencies to do what the bill spells out, but it does require that formalization through the new legislation.
[Translation]
Senator Boisvenu: First off, thank you very much for your testimony. Bills are passed because a problem exists that requires a solution. Do you have any statistical data on the number of incidents annually? I speak here of incidents with an effect on health and safety. How many lost days do they represent? We adopt bills because we want to improve a situation. Do you have any data on the matter?
[English]
Mr. Tessier: I didn't come equipped with statistics. I can certainly provide those.
As an observation, the lost time injury rate, for example, of the offshore compared with other industries in Newfoundland and Labrador, is quite favourable. However, in light of the inherent danger in the work, there's a continual push to get to zero with respect to incidents and accidents.
Beyond that, I didn't bring statistics. I don't know if my colleague has any. We can certainly provide that information. We have a fair amount of that type of information available on our website and we can provide something specifically tailored for the committee.
Mr. Pinks: I could do the same thing. I have some limited information with me. In 2012-2013 — we run on the same fiscal year as the government would run, so that's April 1 to March 31 — there were four disabling injuries in our offshore.
When we say a disabling injury, that's often a restricted work case. Somebody maybe has hurt their hand and is moved from a position of working on the rig floor to maybe an office position, or they've hurt their back and have to take on a job that doesn't involve lifting, something like that. It could include a lost-time incident, but the majority of disabling injuries tend to be what we call restricted work cases.
In 2013-14, from April through December, we had two disabling injuries. I don't have the latest statistics with me, but we could certainly make those available. They are on our website.
Mr. Tessier: I guess we'll both be tabling our annual reports in Parliament this month, and there should be some good information in there that will be of interest as well.
[Translation]
Senator Boisvenu: Does this bill seek to harmonize actions taken by the federal and provincial governments or to improve the health and safety of workers? That is unclear to me. You say there have been four incidents; that seems to me a small number for an industry with such a high level of risk. Deep-sea drilling is done under difficult conditions. Four incidents is relatively little when compared to what we find in the mining sector on the mainland. I am trying to grasp the objective of this bill. Is its goal to harmonize federal and provincial actions or to improve workers' health and safety?
[English]
Mr. Pinks: If I go back to one of my earlier statements, the accord acts are joint federal-provincial legislation. It was determined, a number of years ago, that there was not legal certainty around occupational health and safety act requirements, whether provincial legislation applied, when it applied and when it didn't apply. It was determined there needed to be an occupational health and safety act specific to the offshore workplaces so that they had the same protection that workers have on our job sites across Canada, on federal lands and within the provinces themselves. One of the purposes of this legislation is to bring legal certainty.
I think that, in the amount of effort that has gone into preparing this legislation, the people who have been involved have been able to look at the Canada Labour Code, provincial legislation, what things have been done in other parts of the world, and build something that is state of the art and helps to continue to drive continuous improvement.
Yes, the offshore workplace is a high-hazard industry. The safety performance has been good. The attention to safety has been good, but we're not going to stop the fight to continuously improve. Any disabling injuries are really too many.
[Translation]
Senator Boisvenu: Has this bill led the board to increase its bureaucracy, meaning to increase resources? Are there costs stemming from this bill?
[English]
Mr. Tessier: No, I don't see incremental costs for our activities. As I mentioned in response to Senator Patterson, it really does codify a lot of what's already being done. We welcome the clarity and the certainty that the bill provides. It formally empowers the boards to do what we're doing, and it's good governance from that perspective.
Senator MacDonald: This takes me back to my first job interview after university, occupational health and safety at the Department of Labour in Nova Scotia. I got shortlisted, but I didn't get the job, the first of many professional disappointments.
I have just a couple of quick questions. There's an assumption that the safety demands in the offshore in Nova Scotia and the offshore in Newfoundland will be, by nature, identical. Are they? Is there anything distinctive?
Mr. Pinks: The safety demands?
Senator MacDonald: Are, by nature, identical, but is there anything distinctive about safety issues or safety requirements of demands off of Newfoundland that wouldn't exist in Nova Scotia, or vice versa?
Mr. Pinks: The safety risks that are posed can, in a lot of cases, be installation specific. So the safety issues that may come up, even within the Nova Scotia area, on a drilling installation may be different from those on a production installation, and may be different between the two different types of production installations, especially if they're using completely different technology and equipment.
Senator MacDonald: That segues into my second question. The offshore in Nova Scotia is a pipeline. When Sable comes to the end of its lifetime, they will have to break all of that infrastructure down, which I'm told will be a very expensive undertaking. Are all of the concerns that would arise from the dismantling of this infrastructure addressed in this legislation? Is it forward-looking enough?
Mr. Pinks: This legislation really applies to any type of work or activity in the offshore. It's really around responsibilities for safety and how safety is appropriately managed, if you will. It's not activity specific.
Senator MacDonald: I understand that.
Mr. Pinks: Would it cover the decommissioning and abandonment of the Sable facilities? Absolutely.
Senator Ringuette: Mr. Pinks, could you clarify your earlier declaration that Transport Canada is responsible for the safety of vehicles, but that you are responsible for the safety of passengers? Isn't that supposed to be one and the same? The vehicle is supposed to be safe for the safety of the passengers.
Mr. Pinks: The certification of the helicopter and the pilots and the maintenance of that helicopter is the responsibility of Transport Canada. For the passengers who are travelling offshore, who are sitting on that helicopter, we have a responsibility for making sure that the operators and the contract provider — the helicopter service provider — appropriately trains those people to travel in a helicopter, that they're appropriately fitted with protective equipment, for example, helicopter transportation suits, emergency breathing apparatus, that type of thing.
Senator Ringuette: That should be part of — and it is anywhere else — the responsibility of Transport Canada. If you take any kind of commercial flight, before the flight takes off, the flight attendant has the responsibility for giving the passengers the safety measures for on-flight. I believe that you're being given responsibility that is way beyond what should be required of the board.
This brings me to my second question: All of these additional legislative responsibilities and powers also entail a certain liability if you don't fulfill those responsibilities in the case of an incident. How are you covered in regard to potential liabilities?
For instance, let's go to the helicopter issue and my previous question, and let's look at the incident in Newfoundland. It was a vehicle safety issue. How can you determine if the passengers were well informed before the flight took off? You cannot dissociate the two. That's why I'm saying that, if this bill was meant to provide clarification for such events, I'm sorry, gentlemen, but what I'm seeing is that it's creating more fuzziness with regard to the responsibility of the different entities. I don't see how we can make any amendments to this bill. Are you ensuring that you'll be covered if there is an incident and you become the liable entity?
Mr. Tessier: I will take a crack at this one; and Susan can fill in the blanks for us with respect to liability.
The amendments in the bill ensure that the new occupational health and safety regime clearly applies to workers in transit to or from offshore platforms. Our board perhaps has taken on responsibility in that regard following Cougar Flight 491 because the provisions in the Atlantic Accord enabled the board to launch the inquiry that was led by Judge Wells, whom you will hear from perhaps on this bill.
Transport Canada remains the regulator of passenger crafts — helicopters and offshore supply vessels, air or marine, transporting workers to offshore installations. Transport Canada approval is required for promulgation of regulations with respect to occupational health and safety on passenger craft. That remains with Transport Canada.
The bill sets out duties that are relevant and within the control of an operator and employer with respect to the transport of workers and the rights and duties of an employee with respect to such transit.
Again, regulations made with respect to passenger safety on passenger craft will be made on the recommendation of the federal Minister of Transport, in conjunction with the Ministers of Natural Resources and Labour. Provincially, that's the Service Newfoundland and Labrador Minister.
Susan, can you provide some colour with respect to liability?
Ms. Gover: I'll give it a try. The board is appointed by the ministers to act on their behalf. It is a delegation through the legislation. In terms of liability for board members and staff, there are indemnities in the legislation that are not new in this bill.
In terms of accountability, the board can never be a position of having accountability without authority. As Senator Black noted earlier, it's the operator's responsibility, but we regulate the operators. The operators are responsible for their workers at all times from the moment they leave to go to work till the time they're safely back on land. We regulate the operators.
In an inclusive safety culture, the transport of workers is one of the key pieces that the operator is responsible for. Instead of operators having two regulatory frameworks, one being for passenger craft, to have the wholesome and holistic approach to employee safety from the time they leave to go to work till the time they're safely back at home, my understanding was that the ministers accountable wanted that single accountability, which is not inconsistent with the Hickman report into the Ocean Ranger inquiry where there were multiple regulators. Their recommendation was that a single-point regulator was the best model for the offshore industry.
Senator Ringuette: She answered with regard to accountability and my question was: Are you covered in the case of liability?
Ms. Gover: Liability in what respect? The individual staff are all covered as agents of the Crown. We are a government agency. I don't know if that's the context of liability that you are looking for.
The Chair: I think we will move on to Senator Wallace.
Senator Wallace: Aside from safety issues that relate to the transport of workers to and from the platforms, which Senator Ringuette has thoroughly covered off. what would you see as the most significant impacts that C-15 would have on the platform operators current safety obligations?
Mr. Pinks: The bill, given what we have had in place at both boards in terms of requirements for occupational health and safety, as Scott has said, really codifies a lot of what we're already doing. There won't be any significant impact on the day-to-day operations.
The impact would be legal certainty and much better mechanisms for enforcement if the boards had to take up enforcement actions.
Senator Wallace: At the operational level, it does not enhance what exists. It simply brings it together in a more comprehensive and cohesive way. It won't change the safety elements of what exists operationally today.
Mr. Pinks: No. The boards have been making sure that, even in the absence of such legislation, there is an appropriate occupational health and safety regime in place.
Mr. Tessier: Flip it on its head and say it removes a potential challenge for operators of our authority in that regard. It closes that potential loophole. In the preface to your question, you mentioned Bill C-15.
Senator Wallace: Yes. It's C-5.
Mr. Tessier: Wanted to be sure we weren't missing that.
Senator Wallace: Thank you.
The Chair: We understand that there's already legislation in place in both Nova Scotia and Newfoundland and Labrador that mirrors what we are dealing with here.
What you are hearing from senators is about the length of time it took. I have heard two time frames, one being 15 years and one being 10 years, to develop this proposed legislation. We are looking to the future. Will Quebec's legislation take another 10 or 15 years to get done?
The question I had of officials who testified Tuesday was: If they drill in deep water in the Beaufort, it will be covered by the statutes that Canada has now. Does that mean they will not have the same health and safety, and operational coverage that this bill would afford Newfoundland and Labrador? We were told no, there will be no more Newfoundland and Labrador or no less. It will be exactly the same as what you would have with what's in place federally.
That raises the question: Why did we spend 10 years to do what we're doing today? I am not trying to discount what took place; I know there are nuances. What we're trying to say is that there must be a simpler, quicker and better way to respond to what we're talking about as health and safety and not take 10 or 15 years to figure out how we're going to do it.
That's a little bit of where we are coming from. We know that if other provinces and territories do some of this, then maybe those governments will be faced with the same thing. We need to learn from some of these things that we're doing now to actually look after the health and safety of the workers, because that should be paramount.
I thank all three of you very much for your testimony. We appreciate it.
We are continuing our consideration of Bill C-5, the offshore health and safety act, and I'm pleased to welcome by video conference Kyle Buott, Secretary-Treasurer for the Nova Scotia Federation of Labour.
Welcome, Mr. Buott. Before we begin with your opening remarks, I would like to mention to my colleagues that the Newfoundland Labrador Federation of Labour were also invited to appear but have chosen to submit written evidence. Once the clerk receives this, she will distribute it to all committee members.
Once again, welcome. Please proceed with your opening remarks, after which we will go to questions and answers. The floor is yours, sir.
Kyle Buott, Secretary-Treasurer, Nova Scotia Federation of Labour: Thank you, senator.
Good morning. I am the Secretary-Treasurer of the Nova Scotia Federation of Labour representing 70,000 unionized workers across the province in both the private and public sectors. I'm also a member of Unifor, Canada's largest private sector union and the largest union in the energy sector.
Thank you for the opportunity to present at today's hearing on Bill C-5. This legislation is the result of years of work by workers and our communities to improve workplace standards and health and safety rules to prevent loss of limb and life in the offshore. While overall we are pleased that there will finally be legislation specifically governing the offshore work environment, which is one of the most challenging and dangerous work environments, we are disappointed that the government has decided to not fully implement the Wells inquiry recommendations.
The Nova Scotia Federation of Labour spoke to the Commons Committee on Natural Resources in December 2013 in a joint presentation with the Newfoundland and Labrador Federation of Labour and Unifor. Lana Payne, Regional Director for Unifor, spoke on our behalf.
There are three key points that I want to raise today: the need for an independent safety authority to enforce the legislation; the right to refuse unsafe work; and, finally, the need for increased worker participation in this process moving forward. These are the same points that we raised with the Commons committee in 2013.
I also want to take a moment to acknowledge the 17 victims and their families who were impacted by the March 2009 crash of the Cougar helicopter, Flight 491. It is always disappointing that it takes a tragedy for government to take health and safety for workers seriously. In Nova Scotia we know this too well, having been through the Westray mining disaster and seeing the changes that brought to occupational health and safety rules.
My first point is around the need for a powerful, independent safety authority for the offshore.
Commissioner Wells recommended the creation of an independent safety authority that would be in charge of both safety and environmental regulations in his inquiry into Cougar Flight 491. Unfortunately, this is lacking from the legislation before us today. While this safety regime will help protect workers' rights and lives, an independent safety authority would be far more likely to succeed in this goal. Safety and environmental regulations must be separate from the management of offshore oil and gas industry management.
Interestingly, there are several other countries that already do this and there are models available to us. Norway, the United Kingdom, Australia and even the United States have moved to create an independent body to handle safety issues in offshore industries that is not tied to the industry itself and their management.
Such a safety authority must include tripartite cooperation to prevent incidences. Commissioner Wells highlighted in his report the need for worker engagement in this process. In the case of a unionized workplace, this must include the union as the collective voice of the working class. Such a structure would lead to lower risks for workers and their families.
Commissioner Wells wrote:
. . . that kind of effective leadership can only be achieved through the full participation in the safety process of all concerned entities, including the workers themselves.
The lack of independence from the oil and gas industry management gives workers little faith that our concerns can be addressed through this process. A fully independent safety authority would be in a much better position to restore the faith of offshore workers in this new safety regime.
My second point is with regard to the right to refuse unsafe work. The Federation of Labour is very pleased to see strong language in Bill C-5 regarding the right to refuse. This is language that we have been demanding for decades from our politicians.
No supervisor, boss or manager has the right to endanger workers' lives. While the right to refuse unsafe work is increasingly known to the public, there is still a long way to go to empower workers to be able to make that decision and exercise their rights. In many industries, younger or newer workers will not utilize their right to refuse, as they are concerned for the repercussions it might cause.
In Nova Scotia, for example, in November 2013, we had a 21-year-old young man fall six storeys to his death on a construction site due to lack of safe working conditions. This company had three previous safety violations all for the same reason, and yet this young man did not feel he was in a position to exercise his right to refuse unsafe work.
There is a long way to go, and increased education, especially in the offshore industry on the right to refuse unsafe work, is key to creating a safe working environment. The best way to do this is through an independent safety authority with the ability to do educational work.
Also, while Bill C-5 does contain strong language on the right to refuse, this is at the same time the government is weakening the right to refuse in Bill C-4. Bill C-4 changes the language which is reflected in Bill C-5. In Bill C-5, the language states that an employee has the right to refuse if "they have reasonable cause to believe that the activity constitutes a danger to themselves or another individual." However, in Bill C-4, the government is changing this language and for most other federally regulated workplaces it redefines "danger" as "posing an imminent and serious threat." These moves weaken the right to refuse at the federal level and they are deplorable.
Finally, there's one other issue related to the right to refuse. In Canada that right to refuse has always been considered an individual right, not a collective right, that workers can exercise. This prevents workers from collectively exercising their rights and using the strength that comes in numbers to help prevent injury and protect those who may be intimidated from exercising their right to refuse. The labour movement has long argued that the right to refuse unsafe work should be a collective right, able to be exercised by workers and their unions to ensure a healthy and safe workplace for all.
The final issue that I want to raise with you today is around worker participation in the health and safety process. Bill C-5 creates a stakeholder advisory council. It is imperative that worker representatives on this body be appointed by the workers themselves, not by their employers. If the employers are allowed to handpick which workers sit on such an advisory committee, it will seriously undermine the faith workers have in such a process.
We would recommend that in a unionized workplace the union be responsible for appointing their representatives. This can be done either through amending the legislation — I understand that is probably difficult at this point — or through the proposed advisory committee's mandate, when that is formed.
Commissioner Wells highlighted that:
. . . transparency and involvement of workers and the public are the hallmarks of the total system.
We can't forget that point. Increasing workers participation in creating a culture of safety is key to preventing situations like Cougar Flight 491. The people who are most impacted by these decisions must be at the table, otherwise nothing will ever change.
To conclude, the Nova Scotia Federation of Labour is pleased that we will finally have legislation governing offshore health and safety instead of the patchwork system of regulations that existed previously. This clarity will bring renewed confidence to workers in the sector and fewer sleepless nights for their families.
At this point, however, the Senate has an opportunity to further improve this legislation, to amend it to create an independent safety authority, as has been done in other countries, to oversee this work. The failure to do so will only produce more problems down the road. An independent safety authority, complete with worker participation and involvement, can help mitigate one of the most difficult work environments on the planet. The Federation of Labour encourages you to make this change, as was recommended by the Wells Commission, to further improve health and safety for offshore workers across the country.
Thank you for your time.
The Chair: Thank you very much for your presentation. We will move to questions.
Senator Mitchell: Thank you very much, Mr. Buott. You focus on some extremely important issues, about which I, for one, need some clarification.
I think we're all sympathetic to the issue of the definition of "danger." My understanding is that danger hasn't been defined in this case.
I would just like you to clarify further how it is that you would have it defined in a way that would be different — and I don't mean to be difficult in this at all, quite the contrary — than what I think you are referring to in Bill C-4, where it says "posing an imminent and serious threat."
How would you see "danger" defined in a way that would meet your concerns about that issue?
Mr. Buott: It is actually well defined in Bill C-5. That meets our concerns in that piece of legislation, where it says, "an employee has reasonable cause to believe the activity institutes a danger to themselves or another individual."
The change is to make it into the language of "posing an imminent and serious threat" as opposed to "reasonable cause to believe." That's the difference that I'm trying to home in on.
Senator Mitchell: I see, so it is a conflict between Bill C-5 and Bill C-4.
Mr. Buott: That's correct.
Senator Mitchell: So Bill C-5 would be okay. We pass it, and it is okay until C-4 gets passed. Then, all of a sudden, it gets changed back. Am I missing something here?
Mr. Buott: At this point, our understanding of the legislation is that Bill C-5 would take precedence in the offshore itself. Bill C4 changes the regulation in other federal sectors.
Senator Mitchell: Okay, I get it. You are happy with it on the offshore. You would like to see it everywhere.
Mr. Buott: That's correct. It is the way it is in other areas right now.
Senator Mitchell: That's great. Thanks for clarifying that for me.
The other question is about this distinction between an individual right to refuse to work in a certain circumstances and a collective right. Is it not a subject of collective bargaining? At least for union workers, you could bargain that right collectively? Are you saying it needs to be just a matter of rights for all workers? When you use the word "collective," I hope you can see where I'm coming from in this question.
Mr. Buott: Yes, and this part is quite confusing to a lot of folks. Right now, the way the legislation works is that it allows workers to exercise this on an individual basis, as opposed to doing it as a group. What that means is that it allows employers to target workers who exercise that right, instead of targeting and disciplining an entire group. It really comes down to the repercussions people face when they decide to exercise their right to refuse.
Senator Mitchell: I have other questions, but I know there's a list. So I will go on second round.
The Chair: You can proceed.
Senator Mitchell: Oh, can I? Okay.
You referred to the idea of a separate safety officer. That's been decided against. That's the 29(a) recommendation, and one of the features of that or the implications of that, in your mind, would be that an independent safety officer might be more inclined to be in a position to do the education that is necessary to address some of the issues you talk about but, more generally, to create the safety culture.
Is it entirely inconsistent that the way the safety officer has been integrated into these organizations would mean that that kind of education just couldn't be done? Is there some reason why you believe that that kind of a safety officer structure would be anathema to doing that kind of education? Is it just intransigence that's inherent in that kind of organizational structure, or what exactly is the impediment?
Mr. Buott: We would argue that the current boards are far too close to the management side of the oil and gas industry. There is not a huge amount of worker participation in that process and we are concerned that the influence the oil and gas industry may have over these safety boards would compromise their ability to actually implement and enforce safety programs. That's why, in other jurisdictions like Norway and the United States, they have moved to a fully independent process that has no connection to the industry itself.
Senator Mitchell: Of the advisory boards, one has already been established, and one will be. You are making the point — that is a strong point or at least a strong concern — that industry would choose the workers and that these would not be independently chosen by the labour side. Is that a given, or is it the case that the bill doesn't provide for you to have that right?
Mr. Buott: The bill doesn't make it specific. We do believe that it could be accomplished through the committee's mandate, when that is established. For us, it is absolutely key. It doesn't need to be appointed necessarily by their union, but it needs to be selected by the workers themselves and not by their employer.
Senator Mitchell: These have been very clear points. Thanks a lot.
[Translation]
Senator Boisvenu: I would first like to thank you for your presentation. Correct me if I am wrong, but it seems to me your brief is very focused on the right to refusal, the centerpiece of your presentation as I see it. Has the application of this principle met with a lot of resistance from employers in the oil extraction business? Is it a part of their culture?
[English]
Mr. Buott: A big part of it is the isolation that workers face in the offshore. They're away from home. They're away from other social supports that they may have, and that means that their employer has huge control of their lives while they are on a rig or while they are offshore. The impact of that is some level of intimidation to exercise your specific rights. That is where our concern is coming from.
Like I said, we are actually very happy with the language that is in Bill C-5 on this question of the right to refuse, but the question of enforcement comes back to the need for an independent safety authority that is not influenced by industry and not influenced by employers. That is why we keep coming back to that point. If we have rights, they have to be enforced. They can't be enforced when the employer has too much sway over the process.
[Translation]
Senator Boisvenu: Is your union's advisory committee active? Is this an effective way of changing this culture of precaution or prevention and making the workers more responsible for their own safety by refusing, for example, to work under high-risk conditions?
[English]
Mr. Buott: We have certainly found that the mandatory labour management meetings and mandatory JOSH committees, joint occupational health and safety committees, have been quite useful at working through these problems before they become much larger. This advisory panel will be key to continuing to adjust to changes in the industry as it moves forward. In Nova Scotia, we are moving towards a new period of exploration on the offshore. This could result in new projects moving forward in the next few years, and we want to make sure that an advisory committee is in place with workers who are elected by their fellow workers, not by their employer, to make sure that any changes in the industry take into account what workers concerns are.
[Translation]
Senator Boisvenu: I want to congratulate you. You are an excellent communicator.
[English]
Senator Black: I'm intrigued by your concept of an independent safety authority. My specific question is: Can you help me understand what issues this authority would address that are not currently addressed?
Mr. Buott: It's not so much what's not being addressed; it's the question of the overall process. We don't believe that the existing boards are independent of the influence of the employers and of the oil and gas companies. That gives us a lack of confidence in their ability to address concerns brought forward.
Senator Black: I want to understand what you just said. Please go ahead.
Mr. Buott: We want to make sure that that independence is not in question and that there's not a perception that there's a revolving door between the industry and the safety authority that governs them. That's why other countries have gone down this road. I believe the U.K. was the first to do it in the 1980s in response to a disaster in the North Sea, followed by Norway in the 1990s, the United States in 2011 and Australia in 2005. These boards are entirely separate from the industry. There's no revolving door of personnel between the two groups. That is absolutely key to making sure we have a safe work environment.
Senator Black: The underpinning to your argument is that you believe the Canada-Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board are somehow too heavily influenced by the energy industry?
Mr. Buott: That would be the crux of my argument, yes.
Senator Black: I see. Then I would reject that. Thanks very much.
Senator Ringuette: Yes, I concur with Senator Boisvenu that you are well-articulated and have a wealth of knowledge of the field.
You said that Commissioner Wells specifically recommended an independent safety authority for the offshore. We were told yesterday that all stakeholders were consulted before and during the drafting of Bill C-5. Were you consulted? Did you strongly argue the need for an independent safety authority?
Mr. Buott: Yes, we were consulted in the process. In terms of the federation, we got into it by the time it had initially been introduced. I know that my union, Unifor, has been involved in that process for a longer period as they represent about 700 workers in the Hibernia project off Newfoundland. We've been involved in this since prior to Cougar Flight 491 and, of course, have been mobilizing in communities around this issue. Our focus on the ground in Newfoundland, and to a lesser degree in Nova Scotia, has been to follow this issue quite closely with the need for independence of the board.
Senator Ringuette: One of my colleagues earlier questioned a previous witness regarding this dual responsibility of operational safety and occupational safety. We heard that the holistic approach was better. This leads to my other question: Do you have labour representatives on other operational and safety advisory boards in Newfoundland and Labrador, and in Nova Scotia?
Mr. Buott: In other sectors, it's quite common for us to have representatives. To be honest with you, I'm not sure of the exact structure for the offshore sector at the moment. I could follow up on that information for you.
Senator Ringuette: We're talking about occupational safety, so absolutely you should have a representative there. Regarding operational safety, if it's as per the opinion of the boards that were in front of us a few minutes ago who say they need a holistic approach, then labour should also have seats and representation on the operational safety side of the advisory council. That's my spin — what is good for one should be good for the other too.
Mr. Buott: I would certainly agree with that; and I'll follow up to see about the operational side.
Senator Patterson: I have one question following Senator Black's exchange with you about the need for an independent authority and your concern about the energy industry and development pressures influencing the board.
Would you agree, sir, that in fact it's not only workers but also the industry operators who have the big interest in safety? We have only to look at the BP story in the Gulf and what happened to their stock, image and public relations catastrophe as a result of that tragic event to know that industry is also motivated to be concerned about safety in the interests of effective operations that don't lead to human and economic costs. Would you agree that there is interest in safety on the part of the employer that's as valid as the concerns that you eloquently express on the part of the workers?
Mr. Buott: I would agree that employers have an interest in safety. Unfortunately, as we see in the BP case, that's usually related to their profit margins and stock prices, as opposed to the workers' interest and safety, which is related to their lives and their ability to provide for their families.
There have been great, incredible strides in the last 30 years in occupational health and safety. Many employers have become fantastic employers when it comes to occupational health and safety issues. Some of them continue to be cited repeatedly, year after year, with the same health and safety violations. Our regulators seem somewhat unable to actually deal with it.
To this day, no one has been convicted under what we call the "Westray act," that allows us to charge employers when they have negligence causing death in the workplace. No one has gone to jail for that. We have a long way to come.
In the example I gave you from Nova Scotia, the construction company had three previous safety violations. The regulators were getting around to dealing with it; but in the meantime, a 21-year-old kid fell six storeys to his death.
Yes, employers have an interest in safety; but I think workers have a much greater interest in their own safety. It is the employers' legal responsibility to provide that safe workplace. A bill like this is about helping to hold employers to account and about creating a framework to make sure that those rules are enforced.
The Chair: Thank you, Mr. Buott, for your presentation. It was very clear. Everybody understood it fairly well, and we had the answers we wanted. We appreciate your time this morning.
(The committee adjourned.)