Gerry Massing has become a regular contributor to our Blog. In this article, Gerry summarizes recent changes to the Workers Compensation Act that will have a real impact on your business. I have known Gerry for almost 40 years as he and I locked horns on a file dealing with a WCB matter very early on in my career. Gerry has recently retired from the WCB where he has been senior legal counsel in its litigation department. Gerry will continue to practice in the area of WCB law and related aspects such as judicial review applications, etc. He has a strong interest in providing training on claims matters, health and safety matters, assessment matters, policy matters and appeals. If you have any WCB matters requiring advice or wish to explore an enhanced WorkSafe training program please feel free to contact me at firstname.lastname@example.org and I will put you in touch with Gerry.
Recommendations in a report to the government following the explosion and destruction by fire of two sawmills in British Columbia (the Macatee Report) resulted in amendments to the governing legislation. The Workers Compensation Amendment Act, 2015 (Bill 9) is the most recent legislative implementation of these recommendations. WorkSafeBC and the government both accepted the Macatee recommendations. Most of the changes took effect on September 15, 2015. A provision for citations of the employer will be implemented in 2016.
Among other things the Macatee Report noted that
- WorkSafeBC needs greater access to health and safety and enforcement expertise,
- the Prevention investigations, penalty processes and appeals took too long, and
- some employers were able to avoid paying assessments including health and safety penalties and continue their business operations without remedying unsafe conditions.
Bill 9 implements tools for improving enforcement and addressing those concerns.
PAYMENT OF ASSESSMENTS
The worker’s compensation system pools the cost of claims in the workplace. The collective liability of all employers is adjusted by placing similar employers into groups and the groups of employers into similar risk categories to provide rate categories that reflect relative risk. Collecting the assessments owing from the employer who owes them rather than their unpaid debt being added to the base cost of other employers also enhances equity between employers.
The amendments provide additional tools to promote that equity. The Workers Compensation Act permits the board to seek an injunction stopping an employer from continuing to operate if they do not pay their assessments. This is generally a remedy of last resort and has not been used frequently by the board.
The Workers Compensation Amendment Act, 2015 (Bill 9) expands this tool by detailing when a President, Director, officer or their equivalent or a person performing similar functions in an incorporated business can be prohibited by the court from continuing an industry or an activity in an industry until the assessments are paid. It remains to be seen what the board and the courts will consider amounts to continuing an activity in an industry but the potential could be quite broad.
QUICKER RESOLUTION OF HEALTH AND SAFETY RISKS
Bill 9 also legislates measures to speed up health and safety enforcement and provide a new layer of response to what might be considered less serious violations of the health and safety regulation.
1. Incident Investigations:
A preliminary investigation and report of an incident must be completed within 48 hours of the incident. Any proposed corrective action must be undertaken without delay and a report provided to the health and safety committee or posted as soon as practicable. The board describes the purpose of this report as follows:
Employers must identify what interim corrective action they plan to take between the date of the incident and the time the full investigation report is due, which is 30 days from the incident. During that interim period, they must take all actions reasonably necessary to prevent a recurrence of the incident. If an employer is only able to identify some, or only able to identify in broader or more general terms, the unsafe conditions, acts or procedures that significantly contributed to the incident, the interim corrective action may include a full or partial shutdown of a workplace, removing equipment, or reassigning workers.
While this investigation is preliminary in nature the measures required to ensure safety can be extensive. The immediate need to protect the safety and the desire to provide continued employment and business continuity will require a thoughtful and informed response.
A full investigation and more formal report must be undertaken immediately upon the conclusion of the preliminary report and completed within 30 days of the incident. The board has the discretion to extend the due date for the full investigation. The Bill does not provide for an extension of time on the preliminary report.
2. Compliance Plans:
A compliance plan developed in collaboration with the board allows a solution to be developed rather than having an order imposed. The compliance plan is at the board’s discretion provided certain conditions are met. The conditions are that the violation is the first one under that regulation, no immediate risk exists and an agreement is considered appropriate. The health and safety committee or worker safety representative is provided with a copy.
3. Enforcement Responses:
The Bill provides for a “summary” penalty of up to $1000.00 for a violation which is much lower than the maximum amounts available under the regular process now in place. The implementation of these employer citations is planned for 2016. Theoretically, these citations can be decided and appealed more quickly than the current process for determining penalties for health and safety violations.
Also regarding enforcement, the appeal period for Prevention decisions has been shortened to 45 days from 90.
4. WorkSafeBC’s board of directors is expanded to include one new member with law or law enforcement experience and one with occupational health and safety experience based on recommendations from community organizations in those businesses.
WorkSafeBC has published primers on these topics at: http://www.worksafebc.com/regulation_and_policy/legislation_and_regulation/new_legislation/bill_9/default.asp
Bill 9 expands the statutory tools to address incidents more quickly and to provide for quicker incident investigations, lower penalties on a “summary” basis, and compliance agreements. Where financial sanctions are not sufficient, injunctive relief can be sought against some corporate decision-makers as well as the employer. Equity in relation to insured risks is increased by injunctive relief as a result of increasing the limitations on continued business operations in the event of failure to pay.
The Board reports that the majority of the Macatee recommendations have been completed. Bill 9 is the most recent implementation of those recommendations. Some work towards full implementation remains but Bill 9 has brought the full implementation much closer.