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Policies Workers Compensation Act Contents

Policies relating to the OHS Provisions of the Workers Compensation Act

Division 1 Interpretation and Purposes
D1-107-1 Application of the Act and Policies
D1-108-1 Application of Part 3 – Where Jurisdictional Limits Exist

Division 2 Board Mandate
D2-111-1 Assignment of Board Authority
D2-111-3 Board Approval
D2-111-4 Partners in Injury and Disability Prevention Program ("Partners
Program")

D2-113-1 Varying or Cancelling Previous Decisions or Orders

Division 3 General Duties of Employers, Workers and Others
D3-115-1 Employer Duty Towards Other Workers
D3-115-2 Employer Duties – Workplace Bullying and Harassment
D3-115-3 Employer Duties – Wood Dust Mitigation and Control
D3-116-1 Worker Duties – Workplace Bullying and Harassment
D3-116-2 Worker Duties – Wood Dust Mitigation and Control
D3-117-1 Supervisors
D3-117-2 Supervisor Duties – Workplace Bullying and Harassment
D3-117-3 Supervisor Duties – Wood Dust Mitigation and Control
D3-118-1 Multiple-Employer Workplaces
D3-119-1 Owners
D3-121-1 Directors and Officers of a Corporation
D3-123/124-1 Overlapping Obligations

Division 4 Joint Committees and Worker Representatives
D4-125-1 When a Committee is Required
D4-132/133-1 Procedures and Resolving Disagreements
D4-134-1 Time Off Work
D4-135-1 Educational Leave
D4-139-1 Worker Health and Safety Representative
D4-140-1 Participation of Worker Representative in Inspections

Division 6 Prohibition Against Discriminatory Action
D6-150/151/152-1 Scope
D6-153-1 Investigation of Complaint
D6-153-2 Remedies

Division 8 Miscellaneous Authority
D8-160-1 First Aid Equipment – Special Rate of Assessment

Division 9 Variance Orders
D9-166-1 Information Required
D9-168-1 Consultation on Application

Division 10 Accident Reporting and Investigation
D10-172-1 Major Release of Hazardous Substance
D10-175-1 Preliminary Incident Investigation, Report and Follow-Up Action
D10-176-1 Full Incident Investigation, Report and Follow-Up Action

Division 12 Enforcement
D12-186.1-1 OHS Compliance Agreements D12-187-1 OHS Compliance Orders
D12-188-1 Orders – Contents and Process
D12-191-1 Stop Work Orders
D12-195-1 Orders – Cancellation and Suspension of Certificates
D12-196-1 Criteria for Imposing OHS Penalties
D12-196-2 High Risk Violations
D12-196-3 Transfer of OHS History
D12-196-4 Non-Exclusive Ways to Impose Financial Penalties
D12-196-6 OHS Penalty Amounts
D12-196-7 OHS Penalties & Claims Cost Levies – Effect of Application for Stay at Review Division
D12-196-8 Penalties – Payment of Interest on Successful Appeal
D12-196-9 Penalties – Prosecution Following Penalty
D12-196-10 OHS Penalties - Due Diligence
D12-196-11 OHS Penalty Warning Letters
D12-196.1-1 OHS Citations
D12-198-1 OHS Injunctions

Miscellaneous provisions relating to Part 1 of the Act
D24-2-1 Imposition of Levies – Independent Operators
D24-73-1 Claims Cost Levies

Policies Workers Compensation Act Part 3 Division 1 - Interpretation and Purposes

Policy Item D1-107-1
RE: Application of the Act and Policies

BACKGROUND
1. Explanatory Notes
Decision-making at the Workers' Compensation Board is governed by the Workers Compensation Act.

Section 82(1)(a) of the Act authorizes the Board of Directors to set and revise the Board's policies. These policies are of broad general application and provide further direction to Board officers in dealing with individual matters.

Section 99(2) of the Act requires the Board to make decisions based upon the merits and justice of the case, but in so doing to apply a policy of the Board of Directors that is applicable in the case.

The purpose of the POLICY in this Item is to provide direction regarding the interaction between the application of the Act and the policies made under the Act and the consideration of the individual circumstances of the case.

The POLICY does not comment on documents issued under the authority of the President/Chief Executive Officer of the Board. That is a matter for the President/CEO to address.

2. The Act
Section 82(1)(a):

The board of directors must … set and revise as necessary the policies of the board of directors, including policies respecting compensation, assessment, rehabilitation and occupational health and safety ….

Section 99(2):

The Board must make its decision based upon the merits and justice of the case, but in so doing the Board must apply a policy of the board of directors that is applicable in the case.

POLICY
In making decisions, Board officers must take into consideration:

  1. the relevant provision or provisions of the Act;
  2. the relevant policy or policies in this Manual; and
  3. all facts and circumstances relevant to the case.

By applying the relevant provisions of the Act and the relevant policies, Board officers ensure that:

  1. similar cases are adjudicated in a similar manner;
  2. each participant in the system is treated fairly; and
  3. the decision-making process is consistent and reliable.

Section 99(2) of the Act provides that:

The Board must make its decision based upon the merits and justice of the case, but in so doing the Board must apply a policy of the board of directors that is applicable in the case.

In making decisions, Board officers must take into account all relevant facts and circumstances relating to the case before them. This is required, among other reasons, in order to comply with section 99(2) of the Act. In doing so, Board officers must consider the relevant provisions of the Act. If there are specific directions in the Act that are relevant to those facts and circumstances, Board officers are legally bound to follow them.

Board officers also must apply a policy of the Board of Directors that is applicable to the case before them. Each policy creates a framework that assists and directs Board officers in their decision-making role when certain facts and circumstances come before them. If such facts and circumstances arise and there is an applicable policy, the policy must be followed.

All substantive and associated practice components in the policies in this Manual are applicable under section 99(2) of the Act and must be followed in decision-making. The term "associated practice components" for this purpose refers to the steps outlined in the policies that must be taken to determine the substance of decisions. Without these steps being taken, the substantive decision required by the Act and policies could not be made.

References to business processes that appear in policies are only applicable under section 99(2) of the Act in decision-making to the extent that they are necessary to comply with the rules of natural justice and procedural fairness. The term "business processes" for this purpose refers to the manner in which the Board conducts its operations. These business processes are not intrinsic to the substantive decisions required by the Act and the policies.

If a policy requires the Board to notify an employer, worker, or other workplace party before making a decision or taking an action, the Board is required to notify the party if practicable. "If practicable" for this purpose means that the Board will take all reasonable steps to notify, or communicate with, the party.

This policy is not intended to comment on the application of practice directives, guidelines and other documents issued under the authority of the President/Chief Executive Officer of the Board. The application of those documents is a matter for the President/CEO to address.


EFFECTIVE DATE: March 3, 2003
AUTHORITY: ss. 82(1)(a) and 99(2), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION: This policy applies to decisions on or after March 3, 2003.

Policy Item D1-108-1
RE: Application of Part 3 - Where Jurisdictional Limits Exist

BACKGROUND
1. Explanatory Notes
The Canadian Constitution, the Workers Compensation Act and other federal and provincial legislation place certain limits on the Board's authority to take measures to prevent workplace injuries and illnesses.

In some cases, the Board may be totally excluded from inspecting certain types of operations. These include operations covered by Part II of the federal Canada Labour Code, mines covered by the provincial Mines Act, and railways covered by the provincial Railways Act.

In other cases, the Board may not be excluded from a particular type of operations, but certain equipment or activities may be covered by a statute or regulation administered by another agency.

These limits are largely matters of general law over which the Board has no control. They are also too complex to state in this Item.

The purpose of this Item is to provide general guidance on how Board officers will exercise their powers in situations where it has been established that there are jurisdictional limits on those powers.

2. The Act
Section 108:

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

(b) every employer and worker whose occupational health and safety are ordinarily within the jurisdiction of the Provincial government, and

(c) the federal government, every agency of the federal government and every other person whose occupational health and safety are ordinarily within the jurisdiction of the Parliament of Canada, to the extent that the federal government submits to the application of this Part.

(2) This Part and the regulations do not apply in respect of

(a) mines to which the Mines Act applies,

(b) [Repealed]

(c) subject to subsection (3), the operation of industrial camps to the extent their operation is subject to regulations under the Public Health Act.

(3) The Lieutenant Governor in Council may, by regulation, provide that all aspects of this Part and the regulations apply to camps referred to in subsection (2)(c), in which case this Part and the regulations prevail over the regulations under the Public Health Act to the extent of any conflict.

[Note - As of the date of this policy, the federal government had not submitted to the application of Part 3 of the Act under section 108(1)(c). Nor had the Lieutenant Governor in Council made regulations relating to camps under section 108(3).]

Section 114:

(1) Without limiting section 8.1, the board may enter into agreements or make arrangements respecting cooperation, coordination and assistance related to occupational health and safety and occupational environment matters with the Provincial government, the government of Canada or the government of another province or territory, or an agency of any of those governments, or with another appropriate authority.

(2) In relation to an agreement or arrangement under subsection (1), the board may

(a) authorize board officers to act on behalf of the other party to the agreement or arrangement, and

(b) authorize persons appointed by the other party to the agreement or arrangement to act as an officer under this Act, subject to any conditions or restrictions established by the board.

POLICY
(a) Where, for jurisdictional reasons, the Board is totally excluded from inspecting an operation

Board officers will not knowingly issue an order or exercise another Board power under Part 3 with respect to an operation in this situation.

If Board officers observe what they believe to be a violation of a statute or a regulation administered by another agency, they will:

  • notify the other agency of the observation; and
  • cooperate with that agency in dealing with the situation to the extent this is consistent with the Board's mandate and the officers' duties under the Workers Compensation Act.

(b) Where the Board is not totally excluded from inspecting an operation, but certain equipment or activities included in the operation are covered by a statute or regulation administered by another agency

Board officers will not issue an order or exercise another power to directly enforce a statute or regulation of another agency in this situation.

Board officers may issue an order or exercise another power under the Workers Compensation Act where:

  • the situation violates the Workers Compensation Act or a regulation under that Act; and
  • the order or exercise of another power is not in conflict with an applicable statute or regulation administered by the other agency.

If the order or exercise of another power appears to be in conflict with an applicable statute or regulation administered by the other agency, Board officers will seek direction from their managers before proceeding.

If Board officers observe what they believe to be a violation of a statute or a regulation administered by another agency, they will:

  • notify the other agency of the observation; and
  • cooperate with that agency in dealing with the situation to the extent this is consistent with the Board's mandate and the officers' duties under the Workers Compensation Act.

(c) Authority under another statute or regulation or an agreement under Section 114

In some situations, the specific terms of another statute or regulation or an agreement with another agency under section 114 of the Workers Compensation Act may authorize Board officers to exercise authority under other statutes or regulations that would not generally be permitted.


EFFECTIVE DATE: October 1, 2001
AUTHORITY: s.108, Workers Compensation Act
CROSS REFERENCES: See also s.114, Workers Compensation Act
HISTORY: Housekeeping change effective April 15, 2016 to update Act reference in background information.
Housekeeping changes effective September 15, 2010 to remove outdated background information, delete practice reference and make formatting changes.
A housekeeping change was made on December 14, 2001.
APPLICATION: This Item applies to situations arising on and after October 1, 2001.

Policies Workers Compensation Act Part 3 Division 2 - Board Mandate

Policy Item D2-111-1
RE: Assignment of Board Authority

BACKGROUND
1. Explanatory Notes
Section 111 sets out the Board's functions, duties and powers in matters relating to occupational health and safety. The "Board" for this purpose is the corporation known as the Workers' Compensation Board.

The Board of Directors determines what persons should exercise the Board's authority in various areas or the mechanism for making that determination through policy under Section 82 of the Act.

2. The Act
Section 82(1):

The board of directors must

(a) set and revise as necessary the policies of the board of directors, including policies respecting compensation, assessment, rehabilitation and occupational health and safety, and

(b) set and supervise the direction of the Board.

Section 111(1):

In accordance with the purposes of this Part, the Board has the mandate to be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work.

Section 111(2):

In carrying out its mandate, the Board has the following functions, duties and powers:

(a) to exercise its authority to make regulations to establish standards and requirements for the protection of the health and safety of workers and the occupational environment in which they work;

(b) to undertake inspections, investigations and inquiries on matters of occupational health and safety and occupational environment;

(c) to provide services to assist joint committees, worker health and safety representatives, employers and workers in maintaining reasonable standards for occupational health and safety and occupational environment;

(d) to ensure that persons concerned with the purposes of this Part are provided with information and advice relating to its administration and to occupational health and safety and occupational environment generally;

(e) to encourage, develop and conduct or participate in conducting programs for promoting occupational health and safety and for improving the qualifications of persons concerned with occupational health and safety and occupational environment;

(f) to promote public awareness of matters related to occupational health and safety and occupational environment;

(g) to prepare and maintain statistics relating to occupational health and safety and occupational environment, either by itself or in conjunction with any other agency;

(h) to undertake or support research and the publication of research on matters relating to its responsibilities under this Act;

(i) to establish programs of grants and awards in relation to its responsibilities under this Act;

(j) to provide assistance to persons concerned with occupational health and safety and occupational environment;

(k) to cooperate and enter into arrangements and agreements with governments and other agencies and persons on matters relating to its responsibilities under this Part;

(l) to make recommendations to the minister respecting amendments to this Act, the regulations under this Part or Part 1 of this Act, or other legislation that affects occupational health and safety or occupational environment;

(m) to inquire into and report to the minister on any matter referred to it by the minister, within the time specified by the minister;

(n) to fulfill its mandate under this Part in a financially responsible manner;

(o) to do other things in relation to occupational health and safety or occupational environment that the minister or Lieutenant Governor in Council may direct.

Section 113(1):

Subject to sections 239 and 240, the Board has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact and law arising or required to be determined under this Part, and the action or decision of the Board is final and conclusive and is not open to question or review in any court.

POLICY
The Board of Directors will exercise the following powers and responsibilities as set out in Part 3:

  • make recommendations to the minister under section 111(2)(l);
  • make inquiries into matters referred by the minister under section 111(2)(m);
  • comply with directions of the Lieutenant Governor in Council under section 111(2)(o);
  • enter into formal agreements and arrangements with other agencies and governments covered by section 114(2);
  • make and amend Board regulations;
  • grant exemptions from the application of Part 3 under section 106; and
  • approve policies under Part 3 (section 82).

The President/Chief Executive Officer (CEO) has the authority to exercise the remaining powers and responsibilities described in Part 3 and authority over claims cost levies (section 73(1)). The President/CEO also has the authority to assign these powers and responsibilities to divisions, departments, categories of officers or individual officers of the Workers' Compensation Board.

President/CEO assignments will state whether the assignee has the authority to further assign the power or responsibility or whether it must be exercised personally.

The powers and responsibilities described in Part 3 and section 73(1) must be exercised in accordance with the policies of the Board of Directors.

The authority to approve prosecutions under section 214(2) is assigned by the Board of Directors directly to the President/CEO and may not be delegated by the President/CEO without approval of the Board of Directors.

PRACTICE
The assignments of the President/CEO will be in writing and publicly available.


EFFECTIVE DATE: March 24, 2010
AUTHORITY: ss. 82, 111, and 113(1), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. References to Panel of Administrators replaced by references to Board of Directors, on February 11, 2003, to reflect the Workers Compensation Amendment Act, 2002. Consequential changes subsequently made to restatement of section 113(1) to implement the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.

Amended March 24, 2010 to address authority over claims cost levies and make other minor wording changes.
APPLICATION:

Policy Item D2-111-3
RE: Board Approval

BACKGROUND
1. Explanatory Notes
Section 111 sets out the Board's mandate under Part 3.

2. The Act
Section 111(1):

In accordance with the purposes of this Part, the Board has the mandate to be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work.

Section 111(2), in part:

In carrying out its mandate, the Board has the following functions, duties and powers:

(c) to provide services to assist … employers and workers in maintaining reasonable standards for occupational health and safety and occupational environment;

(d) to ensure that persons concerned with the purposes of this Part are provided with information and advice relating to its administration and to occupational health and safety and occupational environment generally …

POLICY
A submission may be made to have a program, product, machine, equipment or work process evaluated by the Board to determine if it is in compliance with current provisions of Part 3 and the regulations.

The Board will review submissions from an employer, worker, union, or from industry in general and will indicate acceptability or unacceptability under the current provisions of Part 3 and the regulations. The review of submissions to the Board will be limited to an assessment of those factors covered by the provisions of Part 3 and the regulations that affect the health and safety of workers.

An acceptance will be conditional upon the use of the product, machinery or equipment for its designed purpose, subject to such conditions as may be specified by the Board. Any indication of compliance with the current provisions of Part 3 and the regulations will not be an assurance of continued acceptability.

An acceptance, as described above, is not a general endorsement or certification by the Board of that program, product, machinery, equipment, or work process.


EFFECTIVE DATE: December 15, 2011
AUTHORITY: s.111(1) and (2)(c) and (d), Workers Compensation Act
CROSS REFERENCES:  
HISTORY:

Policy amended December 15, 2011 to remove the introductory sentence and amend the concluding paragraph.

Housekeeping changes effective September 15, 2010 to remove reference to the Prevention Division, delete practice reference and make formatting changes.
Replaces Policy No. 1.2.1 of the Prevention Division Policy and Procedure Manual
APPLICATION: This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item continues the substantive requirements of Policy No. 1.2.1, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.1 was issued.

Policy Item D2-111-4
RE: Partners in Injury and Disability Prevention Program ("Partners Program")

BACKGROUND
1. Explanatory Notes
The Partners Program is a voluntary employer incentive program intended to motivate employers to take a proactive role in complying with the occupational health and safety requirements found in Part 3 of the Act.

2. The Act
Section 36 (in part):

(1) The Board must continue and maintain the accident fund for payment of the compensation, outlays and expenses under this Part and for payment of expenses incurred in administering Part 3 of the Act.

Section 42:

The Board must establish subclassifications, differentials and proportions in the rates as between the different kinds of employment in the same class as may be considered just; and where the Board thinks a particular industry or plant is shown to be so circumstanced or conducted that the hazard or cost of compensation differs from the average of the class or subclass to which the industry or plant is assigned, the Board must confer or impose on that industry or plant a special rate, differential or assessment to correspond with the relative hazard or cost of compensation of that industry or plant, and for that purpose may also adopt a system of experience rating.

Section 111 (in part):

(1) In accordance with the purposes of this Part, the Board has the mandate to be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work.

(2) In carrying out its mandate, the Board has the following functions, duties and powers:

(c) to provide services to assist joint committees, worker health and safety representatives, employers and workers in maintaining reasonable standards for occupational health and safety and occupational environment;

(e) to encourage, develop and conduct or participate in conducting programs for promoting occupational health and safety and for improving the qualifications of persons concerned with occupational health and safety and occupational environment;

(k) to cooperate and enter into arrangements and agreements with governments and other agencies and persons on matters relating to its responsibilities under this Part;

Section 113 (in part):

(5) The Board may charge a class or subclass with the cost of investigations, inspections and other services provided to the class or subclass for the prevention of injuries and illnesses.

POLICY
See Assessment Manual AP1-42-4 for the policy.


EFFECTIVE DATE: February 15, 2016
AUTHORITY: ss. 36, 42, 111, and 113(5), Workers Compensation Act.
CROSS REFERENCES:

See also Penalties - Criteria for Imposing (Prevention Manual D12-196-1) and Partners in Injury and Disability Prevention Program (Assessment Manual AP1-42-4).

HISTORY:

Interim policy in effect until December 31, 2017.

APPLICATION: The amended policy applies to all decisions, including appellate decisions, made on or after February 15, 2016 and remain effective until December 31, 2017.

Policy Item D2-113-1
RE: Varying or Cancelling Previous Decisions or Orders

BACKGROUND
1. Explanatory Notes
Section 113(2) sets out the Board's authority to make a new decision or order to vary or cancel a previous decision or order made under Part 3. It is necessary to set out the grounds on which the Board will exercise that authority.

A subsidiary issue relates to the requirements for providing notice and posting that must be observed when the Board makes a new decision or order under section 113(2) to vary or cancel an order. In these cases, it must give notice to the employer or other person in relation to whom the order was made. If the person given notice was required by or under Part 3 to post a copy of the original order or to provide copies of it to a joint committee, worker representative or union, the person must post and provide copies of the notice in accordance with the same requirements under section 189. The general posting requirements in section 154 will apply where posting of the varying or cancelling of an order is required.

2. The Act

Section 113(2) to (2.3):

113(2)

Despite subsection (1), but subject to subsection (2.1) and sections 189(1) and 190(4), the Board may at any time, on its own initiative, make a new decision or order varying or cancelling a previous decision or order of the Board or of any officer or employee of the Board respecting any matter that is within the jurisdiction of the Board under this Part.

113(2.1)

The Board may not make a decision or an order under subsection (2) if

(a) a review has been requested under section 96.2 in respect of the previous decision or order, or

(b) an appeal has been filed under section 240 in respect of the previous decision or order.

113(2.2)

Despite subsection (1), the Board may review a decision or order made by the Board or by an officer or employee of the Board under this Part but only as specifically provided in sections 96.2 to 96.5.

113(2.3)

Despite subsection (1), the Board may at any time set aside any decision or order made by it or by an officer or employee of the Board under this Part if that decision or order resulted from fraud or misrepresentation of the facts or circumstances upon which the decision or order was based.

Section 189:

(1) If the Board varies or cancels an order, it must give notice to the employer or other person in relation to whom the order was made.

(2) If the person given notice under subsection (1) was required by or under this Part to post a copy of the original order or to provide copies of it to a joint committee, worker representative or union, the person must post and provide copies of the notice in accordance with the same requirements.

POLICY
This policy addresses the Board's authority, on its own initiative, to make new decisions or orders varying or cancelling previous decisions or orders under section 113(2) of the Act.

(a) "On Its Own Initiative"
It is significant that section 113(2) only authorizes the Board to make a new decision or order varying or cancelling a previous decision or order under Part 3 "on its own initiative". This is to be contrasted with the Board's authority to reopen a matter under Part 1 "on its own initiative, or on application" under section 96(2) of the Act. It is also to be contrasted with section 96.5 and section 256, which authorize a review officer and the Appeal Tribunal, respectively, to reconsider decisions on application in certain circumstances.

The use of the words "on its own initiative" in section 113(2), with no mention of "on application", and the availability of a review mechanism under sections 96.2 to 96.5, indicate that the Board is not intended to set up a formal application process under section 113(2) to resolve disputes that parties may have with decisions or orders.

Rather, the Board's authority to vary or cancel is intended to provide a quality assurance mechanism for the Board. The Board is given an opportunity to correct, on its own initiative, any errors it may have made.

This does not, of course, preclude the Board from making a new decision or order varying or cancelling a previous decision or order on the basis of information that may be brought forward by an employer or other party to a decision or order.

(b) Grounds
The Board may make a new decision or order varying or cancelling a previous decision or order if there are grounds showing either an error of law or policy, or significant new evidence, and the Board determines that either of these grounds require that the previous decision or order be varied or cancelled.

(c) General Exercise of Authority
In considering whether to make a new decision that varies or cancels a previous decision or order, the Board will take into account the length of time that has elapsed since the decision or order was made. A delay since the previous decision or order was made, in the absence of a reasonable explanation for the delay, is a ground for the Board not to exercise its power to vary or cancel the previous decision or order without considering the merits of the previous decision or order.

Before varying or cancelling a decision or order, the Board will advise any person that may be affected by a new decision and provide an opportunity for these individuals to make comments.

(d) Authority to Vary or Cancel Reviews and Appeals
The Act gives the Board the authority to make final decisions on the matter before it. It also provides rights of review and appeal, but these are subject to time limits. The Act shows a general intention as to how disputes concerning decisions or orders should be resolved, and that there be finality in decision-making. This intention must be considered when deciding whether to exercise the discretion provided by section 113(2) to make a new decision varying or cancelling previous decisions or orders.

Subject to grounds being established as set out in (b) above, the Board may make a new decision varying or cancelling a decision or order under section 113(2) on which an available review or appeal was not commenced within the time allowed.

The Board will not, however, make a new decision or order under section 113(2) where the merits of the previous decision have been the subject of a decision on a review by the Review Division or an appeal by the Appeal Tribunal except in accordance with the decision by the Review Division or Appeal Tribunal.

Nor will the Board normally make a new decision or order under section 113(2) where:

  • there is a right to a review of the previous decision or order or a right of appeal to the Appeal Tribunal; or
  • the previous decision or order is being considered, or will be considered, for the purpose of considering an administrative penalty or similar levy.

EFFECTIVE DATE: March 3, 2003
AUTHORITY: s.113, Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation Amendment Act (No. 2), 2002, effective March 3, 2003.
APPLICATION:

Policies Workers Compensation Act Part 3 Division 3 - General Duties of Employers, Workers and Others

Policy Item D3-115-1
RE: Employer Duty Towards Other Workers - Section 115(1)(a)(ii)

BACKGROUND
1. Preamble

A purpose of Part 3 of the Act is "to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party's authority and ability to do so."1 [ Footnote1 Section 107(2)(e) of the Act]

Section 115(1)(a)(ii) reflects that purpose and ultimately requires an employer to ask "Have I done all that I can reasonably do to ensure the health and safety of those other workers?"

This policy is to assist decision makers by providing a consistent approach to interpretation. The policy provides principles to guide decision makers since it is not possible to address every potential workplace arrangement.

Historically, interpretation of section 115(1)(a)(ii) has focused primarily on whether or not the duty applies in a particular situation. This policy simplifies that determination by adopting a broad interpretation as to when the duty applies. This policy then provides practical criteria to determine what the duty means in practice (the scope of the duty).

2. Explanatory Notes

This policy addresses an employer's duty towards other workers as set out in section 115(1)(a)(ii) of the Act. This states that an employer must ensure the health and safety of other workers present at a workplace at which that employer's work is being carried out.

That duty co-exists with the duty that the direct employer and other employers may have towards those workers. In addition, employers may also have distinct duties towards other workers as set out in sections 118, 119 and 120 of the Act and various sections of the regulation.

3. The Act and Occupational Health and Safety Regulation ("OHSR")

Section 115(1)(a), Act - General duties of employers

(1) Every employer must

(a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer's work is being carried out….

The Appendix to this policy contains other related sections of the Act and OHSR.

POLICY

Section 115(1)(a)(ii) gives every employer the duty to ensure the health and safety of any other workers present at a workplace at which that employer's work is being carried out.

Definition

"other workers" refers to workers other than those of the employer. This includes workers of other employers as well as persons deemed to be workers through signing up for Personal Optional Protection (POP).

When Does The Duty Apply?

The duty applies whenever other workers are present at a workplace at which that employer's work is being carried out.

The employer's work can be carried out in one of two ways:

(a) other workers are present at a workplace where the employer's workers are working, or

(b) other workers are doing work for the employer's benefit.

What Does the Duty Require? (Scope of the Duty)

Once the duty applies, section 115(1)(a)(ii) requires an employer to take all reasonable steps in the circumstances to ensure the health and safety of the other workers. Some of those reasonable steps are set out below in items 1 to 3. In each case, the following three factors below (A to C) will affect what must be done:

A. the employer's degree of control,

B. the employer's level of expertise in the work being performed, and

C. the extent to which the employer is aware or ought to be aware of what is occurring in the workplace.

These reasonable steps for the employer include the following:

  1. Making reasonable inquiries prior to a firm doing work on the employer's behalf;

    (a) The employer's expertise in the area may affect the extent of inquiries:

    (i) to determine whether the firm is capable of safely doing the work; and

    (ii) about the firm's plans to safely conduct the work.

  2. Preventing unsafe conditions or work that may affect the other workers and addressing those that arise; and

    (a) The extent to which the employer is aware or ought to be aware of the unsafe conditions or work may affect what must be done.

    The employer's familiarity with the worksite may affect the ability to identify unsafe conditions or work.

    (b) The employer's level of expertise may affect the ability to identify the unsafe conditions or work.

    For example, a roofing firm subcontracting to another, will have a good understanding of when fall protection is required. A manufacturing employer that engages a roofing contractor to service its plant may not.

    (c) The employer's degree of control over the other workers or the site, may affect:

    (i) the processes implemented to address safety compliance; and

    Where the employer exercises a high degree of control relating to a particular function or activity, the employer will have a higher level of responsibility relating to that activity. This could include stopping the work, if necessary.

    (ii) the employer's response to unsafe conditions or work.

    Where there is no control, the duty may be satisfied by reporting the situation to a supervisor of the other workers.

    As with item (i) above, where the employer exercises a high degree of control relating to a particular function or activity, the employer will have a higher level of responsibility relating to that activity. This could include stopping the work, if necessary.

  3. Ensuring that the employer's workers do not put the other workers at risk.

    The employer must address any aspects of the employer's work that could create a hazard for other workers. This would include workers coming on to the site after the work day. For example, security guards patrolling in the evening risk injury if hazards are left at the end of the work day.

PRACTICE

The following scenarios provide basic examples of the application of the policy for illustration purposes. More than one scenario may apply to some cases.

The scenarios are not policy. Where they conflict with the policy or are less comprehensive than the policy, the policy should be relied upon.

Scenarios

(1) An employer brings in a sub-contractor to the employer's fixed workplace.

In this case, the employer will generally have greater awareness of the site hazards, physical control over the site and the ability to affect all employers in the workplace. The employer will have contractual control over the subcontractor as well as physical control over the worksite.

  • The employer must make reasonable inquiries to determine that the subcontractor is able to safely perform the work.
    • This could involve questions for the subcontractor as well as checking references.
  • The employer must make reasonable inquiries about the subcontractor's plan to safely conduct the work.
    • This would involve questions for the subcontractor, the extent of which would depend on the employer's level of expertise in the type of work performed by the subcontractor.
  • The employer must provide information about hazards and preserve and maintain the safety of the workplace (see also section 119 of the Act).
  • The employer must ensure that its activities do not endanger the other workers, including workers who may be involved in work after hours or following completion of the employer's work.
  • Where these are known to the employer, unsafe acts by other workers must be reported to their supervisor (see also OSHR 3.10).
  • The employer must exercise its authority to stop work by the other workers in the case of significant hazards or where reports of unsafe acts or conditions are not being acted upon.

(2) An employer hires a subcontractor to do work at a third party's workplace, where a third party maintains overall control of the workplace. The employer is not given any level of authority over the workplace.

In this case, the employer will have the same responsibilities over the subcontractor as in scenario (1) with the exception that the employer will not have control over physical aspects of the workplace.

(3) An employer has control over the subcontractor and the workplace but is not on site or only briefly attending the workplace.

In this case, the employer will have the same responsibilities over the subcontractor as in scenario (1), however, the employer will have less awareness of what is occurring at the workplace.

(4) An employer is a franchisor.

  • The employer's responsibility will depend on the degree of control it exercises over the franchisee's operation and facilities, the extent of awareness and degree of expertise it has about the operations.
  • When the employer exercises significant control over the franchisee's facility in a manner that affects health and safety, the employer will have a greater obligation to take steps to protect the other workers.

(5) An employer is present at a workplace but does not have control over other employers or over the workplace. (For example, the employer's workers work along with other workers at a shared site owned and controlled by a third party.)

  • The employer's activities must not endanger other workers.
  • Where these are known to the employer, unsafe acts by other workers must be reported to their supervisor (see also OSHR 3.10).
  • Unsafe acts or conditions which are not remedied after an initial report must be pursued through the workplace hierarchy or reported to WorkSafeBC.

APPENDIX

1. Additional Act and OHSR Provisions

Section 107, Act - Purposes of Part 3

(1) The purpose of this Part is to benefit all citizens of British Columbia by promoting occupational health and safety and protecting workers and other persons present at workplaces from work related risks to their health and safety.

(2) Without limiting subsection (1), the specific purposes of this Part are

(a) to promote a culture of commitment on the part of employers and workers to a high standard of occupational health and safety,

(b) to prevent work related accidents, injuries and illnesses,

(c) to encourage the education of employers, workers and others regarding occupational health and safety,

(d) to ensure an occupational environment that provides for the health and safety of workers and others,

(e) to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party's authority and ability to do so,

(f) to foster cooperative and consultative relationships between employers, workers and others regarding occupational health and safety, and to promote worker participation in occupational health and safety programs and occupational health and safety processes, and

(g) to minimize the social and economic costs of work related accidents, injuries and illnesses, in order to enhance the quality of life for British Columbians and the competitiveness of British Columbia in the Canadian and world economies.

Section 115, Act - General duties of employers

(1) Every employer must

(a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer's work is being carried out, and

(b) comply with this Part, the regulations and any applicable orders.

(2) Without limiting subsection (1), an employer must

(a) remedy any workplace conditions that are hazardous to the health or safety of the employer's workers,

(b) ensure that the employer's workers

(i) are made aware of all known or reasonably foreseeable health or safety hazards to which they are likely to be exposed by their work,

(ii) comply with this Part, the regulations and any applicable orders, and

(iii) are made aware of their rights and duties under this Part and the regulations,

(c) establish occupational health and safety policies and programs in accordance with the regulations,

(d) provide and maintain in good condition protective equipment, devices and clothing as required by regulation and ensure that these are used by the employer's workers,

(e) provide to the employer's workers the information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work and to ensure the health and safety of other workers at the workplace,

(f) make a copy of this Act and the regulations readily available for review by the employer's workers and, at each workplace where workers of the employer are regularly employed, post and keep posted a notice advising where the copy is available for review,

(g) consult and cooperate with the joint committees and worker health and safety representatives for workplaces of the employer, and

(h) cooperate with the Board, officers of the Board and any other person carrying out a duty under this Part or the regulations.

Section 124, Act - Responsibility when obligations apply to more than one person

If

(a) one or more provisions of this Part or the regulations impose the same obligation on more than one person, and

(b) one of the persons subject to the obligation complies with the applicable provision,

the other persons subject to the obligation are relieved of that obligation only during the time when

(c) simultaneous compliance by more than one person would result in unnecessary duplication of effort and expense, and

(d) the health and safety of persons at the workplace is not put at risk by compliance by only one person.

Section 3.10, OHSR - Reporting unsafe conditions

Whenever a person observes what appears to be an unsafe or harmful condition or act the person must report it as soon as possible to a supervisor or to the employer, and the person receiving the report must investigate the reported unsafe condition or act and must ensure that any necessary corrective action is taken without delay.


EFFECTIVE DATE: May 1, 2013
AUTHORITY: s. 115(1)(a)(ii), Workers Compensation Act
CROSS REFERENCES: Section 107, 124, Workers Compensation Act
Section 3.10, Occupational Health and Safety Regulation)
HISTORY:
APPLICATION:

 


Policy Item D3-115-2
RE: Employer Duties - Workplace Bullying and Harassment

BACKGROUND
1. Preamble

An employer has a duty to ensure the health and safety of its workers, and as a result, employers must take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment. Workplace bullying and harassment can lead to injury, illness or death.

This Policy provides a consistent legal framework for stakeholders, WorkSafeBC Officers and decision-makers identifying what WorkSafeBC considers to be reasonable steps for an employer to prevent where possible, or otherwise minimize, workplace bullying and harassment.

WorkSafeBC Officers will review whether the elements in this Policy have been developed, implemented and periodically reviewed.

2. Explanatory Notes

Section 115(1)(a) of the Workers Compensation Act ("Act") requires an employer to take all reasonable steps in the circumstances to ensure the health and safety of its workers.

Section 115(2)(e) of the Act requires an employer to inform, instruct, train and supervise workers to ensure their safety and that of other workers.

This policy (D3-115-2), which flows from the above sections in the Act, discusses employer duties regarding bullying and harassment. It identifies what WorkSafeBC considers to be reasonable steps for an employer to take to address the hazards of workplace bullying and harassment.

There are two other related policies that address workplace bullying and harassment: Policy D3-116-1, Worker duties, and Policy D3-117-2, Supervisor duties.

3. The Act

Section 115(1)(a) & Section 115(2)(e):

(1) Every employer must

(a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer's work is being carried out….

(2) Without limiting subsection (1), an employer must

(e) provide to the employer's workers the information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work….

POLICY

Definition

"bullying and harassment" (a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but

(b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

Reasonable Steps to Address the Hazard

WorkSafeBC considers that reasonable steps by an employer to prevent where possible, or otherwise minimize, workplace bullying and harassment include the following:

(a) developing a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated;

(b) taking steps to prevent where possible, or otherwise minimize, workplace bullying and harassment;

(c) developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment including how, when and to whom a worker should report incidents or complaints. Included must be procedures for a worker to report if the employer, supervisor or person acting on behalf of the employer, is the alleged bully and harasser;

(d) developing and implementing procedures for how the employer will deal with incidents or complaints of workplace bullying and harassment including:

i. how and when investigations will be conducted;

ii. what will be included in the investigation;

iii. roles and responsibilities of employers, supervisors, workers and others;

iv. follow-up to the investigation (description of corrective actions, timeframe, dealing with adverse symptoms, etc.); and

v. record keeping requirements;

(e) informing workers of the policy statement in (a) and the steps taken in (b);

(f) training supervisors and workers on:

i. recognizing the potential for bullying and harassment;

ii. responding to bullying and harassment; and

iii. procedures for reporting, and how the employer will deal with incidents or complaints of bullying and harassment in (c) and (d) respectively;

(g) annually reviewing (a), (b), (c), and (d);

(h) not engaging in bullying and harassment of workers and supervisors; and

(i) applying and complying with the employer's policies and procedures on bullying and harassment.

PRACTICE

The definition of bullying and harassment includes any inappropriate conduct or comment by a 'person' towards a worker that the 'person' knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.

A 'person' includes any individual, whether or not they are a workplace party. This means that a 'person' could be a workplace party such as an employer, supervisor, or co-worker, or a non workplace party such as a member of the public, a client, or anyone a worker comes into contact with at the workplace.

In order to determine what is reasonable in the policy, a definition below is included for a 'reasonable person'.

Black's Law Dictionary, Ninth Edition, defines a reasonable person as follows:

"…a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions…"


EFFECTIVE DATE: November 1, 2013
AUTHORITY: s. 115(1)(a)(ii), and s. 115(2)(e) of the Workers Compensation Act
HISTORY:  
APPLICATION:  

Policy Item D3-115-3
RE: Employer Duties - Wood Dust Mitigation and Control

BACKGROUND
1. Preamble

An employer has a duty to ensure the health and safety of its workers, and therefore must take all reasonable steps to address the hazards of combustible wood dust.

Combustible dusts are fine particles that present explosion hazards when suspended in air under certain conditions. Combustible wood dust has resulted in catastrophic explosions with loss of life and serious injuries.

This policy provides a consistent legal framework for stakeholders, WorkSafeBC officers, and decision-makers identifying what WorkSafeBC considers reasonable steps for an employer to take to address these hazards.

Controlling combustible wood dust hazards requires a systematic long term approach contained in a program, including audits that can provide an objective and comprehensive evaluation of a facility’s wood dust management practices and their effectiveness.

2. Explanatory Notes

Section 115(1)(a) of the Workers Compensation Act ("Act") requires an employer to take all reasonable steps in the circumstances to ensure the health and safety of workers. In addition, the Act and Occupational Health and Safety Regulation ("Regulation") also require an employer to:

  • remedy any workplace conditions that are hazardous to the health or safety of workers (section 115(2)(a) of the Act)
  • inform, instruct, train and supervise workers to ensure their safety and that of other workers (section 115(2)(e) of the Act).
  • safely remove combustible dust before accumulation of the dust could cause a fire or explosion (section 5.81 of the Regulation).
  • regularly inspect the workplace at intervals that will prevent the development of unsafe working conditions, and following an accident or equipment malfunction (sections 3.5 and 3.7 of the Regulation).
  • investigate all reports of unsafe conditions or acts and ensure that necessary corrective action is taken immediately (section 3.10 of the Regulation).

This policy (D3-115-3) flows from the above sections of the Act and Regulation and addresses employer duties regarding wood dust mitigation and control. To be duly diligent with respect to combustible dust obligations, an employer must take all reasonable steps to comply with the Act and Regulation. This policy identifies what WorkSafeBC considers these reasonable steps to be.

This policy will initially apply to wood product manufacturers in eight specified classification units. WorkSafeBC assigns employers to classification units based on an employer's primary business activity.

Two other related policies address wood dust mitigation and control: D3-116-2, Worker duties; and D3-117-3, Supervisor duties.

3. Legal Authority

s. 115(1)(a), s. 115(2)(a) and s. 115(2)(e), Act:

(1) Every employer must

(a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer's work is being carried out….

(2) Without limiting subsection (1), an employer must

(a) remedy any workplace conditions that are hazardous to the health or safety of the employer’s workers….

(e) provide to the employer's workers the information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work….

Section 3.5, Regulation:

Every employer must ensure that regular inspections are made of all workplaces, including buildings, structures, grounds, excavations, tools, equipment, machinery and work methods and practices, at intervals that will prevent the development of unsafe working conditions.

Section 3.7, Regulation:

A special inspection must be made when required by malfunction or accident.

Section 3.10, Regulation:

Whenever a person observes what appears to be an unsafe or harmful condition or act the person must report it as soon as possible to a supervisor or to the employer, and the person receiving the report must investigate the reported unsafe condition or act and must ensure that any necessary corrective action is taken without delay.

Section 5.81, Regulation:

If combustible dust collects in a building or structure or on machinery or equipment, it must be safely removed before accumulation of the dust could cause a fire or explosion.

POLICY

Application

This policy applies to employers within the following classification units:

Classification Unit Name Classification Unit #
Sawmill 714022
Oriented Strand Board Manufacture 714012
Planing Mill 714015
Pressed Board Manufacture (not elsewhere specified)
[includes pellet plants]
714019
Pulp and Paper Mill 714044
Shake and Shingle Mill 714023
Veneer or Plywood Manufacture 714027
Wooden Component Manufacture (not elsewhere specified) 714032

Reasonable Steps to Address the Hazard

WorkSafeBC considers that reasonable steps by an employer to address the hazards of combustible wood dust include the following:

(a) conducting a risk assessment to identify combustible wood dust hazards at the workplace;

(b) developing and implementing a combustible wood dust management program to effectively address combustible wood dust hazards;

(c) educating and training workers and supervisors about the hazards and measures in the combustible wood dust management program to control the hazards;

(d) ensuring that the combustible wood dust management program is fully implemented;

(e) undergoing a wood dust mitigation and control audit as soon as reasonably possible after implementing the program, then

(i) promptly implementing recommendations from the audit, and

(ii) conducting a new audit if there is any material change to work processes or equipment;

(f) reviewing the combustible wood dust management program

(i) annually, and

(ii) simultaneously with any material changes to work processes or equipment to ensure that these changes are addressed; and

(g) complying with the employer's combustible wood dust management program.

PRACTICE

WorkSafeBC Guideline G5.81 and the Mitigation and Control of Combustible Wood Dust Resource Tool Box provide more detailed information and guidance regarding implementation of a wood dust mitigation and control program. The toolbox contains a comprehensive audit tool which can be used for a program audit and can also provide guidance to an employer developing a program.


EFFECTIVE DATE: September 1, 2014
AUTHORITY: s. 115(1)(a), s.115(2)(a), and s. 115(2)(e), Workers Compensation Act
ss. 5.81, 3.5, 3.7, and 3.10, Occupational Health and Safety Regulation
CROSS REFERENCES: D3-116-2 (Worker Duties - Wood Dust Mitigation and Control),
D3-117-3 (Supervisor Duties - Wood Dust Mitigation and Control)
HISTORY:  
APPLICATION:  

Policy Item D3-116-1
RE: Worker Duties - Workplace Bullying and Harassment

BACKGROUND
1. Preamble

A worker has a duty to take reasonable care to protect the health and safety of themselves and other persons, and as a result, a worker must take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment. Workplace bullying and harassment can lead to injury, illness or death.

This policy provides a consistent legal framework for stakeholders, WorkSafeBC Officers and decision-makers identifying what WorkSafeBC considers to be reasonable steps for a worker to prevent where possible, or otherwise minimize, workplace bullying and harassment.

2. Explanatory Notes

Section 116(1)(a) of the Workers Compensation Act ("Act") requires workers to take reasonable care to protect the health and safety of other persons who may be affected by the worker's acts or omissions at work.

This policy (D3-116-1), which flows from the above section in the Act, discusses worker duties regarding bullying and harassment.

There are two other related policies that address workplace bullying and harassment: Policy D3-115-2, Employer duties, and Policy D3-117-2, Supervisor duties.

3. The Act

Section 116

(1) Every worker must

(a) take reasonable care to protect the worker's health and safety and the health and safety of other persons who may be affected by the worker's acts or omissions at work....

POLICY
Definition

"bullying and harassment" (a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but

(b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

A worker's obligation to take reasonable care to protect the health and safety of themselves or others includes:

(a) not engaging in bullying and harassment of other workers, supervisors, the employer or persons acting on behalf of the employer;

(b) reporting if bullying and harassment is observed or experienced in the workplace; and

(c) applying and complying with the employer's policies and procedures on bullying and harassment.

PRACTICE

The definition of bullying and harassment includes any inappropriate conduct or comment by a 'person' towards a worker that the 'person' knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.

A 'person' includes any individual, whether or not they are a workplace party. This means that a 'person' could be a workplace party such as an employer, supervisor, or co-worker, or a non workplace party such as a member of the public, a client, or anyone a worker comes into contact with at the workplace.

Black's Law Dictionary, Ninth Edition, defines a reasonable person as follows:

"…a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions…"


EFFECTIVE DATE: November 1, 2013
AUTHORITY: s. 116(1)(a) of the Workers Compensation Act
HISTORY:  
APPLICATION:  

Policy Item D3-116-2
RE: Worker Duties - Wood Dust Mitigation and Control

BACKGROUND

1. Preamble

A worker has a duty to take reasonable care to protect the health and safety of themselves and other persons, and as a result, a worker has duties with regard to the hazards of combustible wood dus

Combustible dusts are fine particles that present an explosion hazard when suspended in air under certain conditions. Combustible wood dust has resulted in catastrophic explosions with loss of life and serious injuries.

This policy provides a consistent legal framework for stakeholders, WorkSafeBC officers, and decision-makers identifying what WorkSafeBC considers reasonable steps for a worker to meet his or her duties with respect to these hazards.

2. Explanatory Notes

Section 116(1)(a) of the Workers Compensation Act ("Act") requires workers to take reasonable care to protect the health and safety of other persons who may be affected by the worker's acts or omissions at work.

Section 3.10 of the Occupational Health and Safety Regulation ("Regulation") requires a person who sees an unsafe condition or act to report it as soon as possible to a supervisor or to the employer.

This policy (D3-116-2) flows from the above sections of the Act and Regulation and addresses worker duties regarding combustible wood dust.

Two other related policies address combustible wood dust: D3-115-3, Employer duties; and D3-117-3, Supervisor duties.

3. Legal Authority

Section 116, Act:

(1) Every worker must

(a) take reasonable care to protect the worker's health and safety and the health and safety of other persons who may be affected by the worker's acts or omissions at work….

Section 3.10, Regulation:

Whenever a person observes what appears to be an unsafe or harmful condition or act the person must report it as soon as possible to a supervisor or to the employer, and the person receiving the report must investigate the reported unsafe condition or act and must ensure that any necessary corrective action is taken without delay.

POLICY
A worker's obligation to take reasonable care to protect the health and safety of themselves or others includes:

(a) reporting unsafe conditions or actions relating to combustible wood dust in the workplace to a supervisor, or to the employer, as soon as possible; and

(b) complying with the employer's combustible wood dust management program.


EFFECTIVE DATE: September 1, 2014
AUTHORITY: s. 116(1)(a), Workers Compensation Act
s. 3.10, Occupational Health and Safety Regulation
CROSS REFERENCES: D3-115-3 (Employer Duties - Wood Dust Mitigation and Control),
D3-117-3 (Supervisor Duties - Wood Dust Mitigation and Control)
HISTORY:  
APPLICATION:  

Policy Item D3-117-1
RE: General Duties - Supervisors

BACKGROUND

1. Explanatory Notes
Section 117 sets out the general duties of supervisors under Part 3.

2. The Act
Section 117(1):

Every supervisor must

(a) ensure the health and safety of all workers under the direct supervision of the supervisor,

(b) be knowledgeable about this Part and those regulations applicable to the work being supervised, and

(c) comply with this Part, the regulations and any applicable orders.

Section 117(2):

Without limiting subsection (1), a supervisor must

(a) ensure that the workers under his or her direct supervision

(i) are made aware of all known or reasonably foreseeable health or safety hazards in the area where they work, and

(ii) comply with this Part, the regulations and any applicable orders,

(b) consult and cooperate with the joint committee or worker health and safety representative for the workplace, and

(c) cooperate with the board, officers of the board and any other person carrying out a duty under this Part or the regulations.

POLICY

In determining whether Section 117 applies, the following guidelines will be considered:

  • A supervisor is a person who instructs, directs and controls workers in the performance of their duties.
  • A supervisor need not have the title "supervisor". He or she may have some other title or have no title at all.
  • The supervisor will normally be appointed by an employer as such, but a person may be a supervisor without being specifically appointed by an employer if, as a matter of fact, he or she instructs, directs and controls workers in the performance of their duties. The employer himself or herself may be a supervisor.
  • "Direct supervision" may take place even though a worker may be located in a different place than the supervisor or may travel to different places as part of his or her work. Directions may be given by any communications medium.

EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.117, Workers Compensation Act
CROSS REFERENCES: See also Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D3-117-2
RE: Supervisor Duties - Workplace Bullying and Harassment

BACKGROUND
1. Preamble

A supervisor has a duty to take all reasonable steps to ensure the health and safety of workers under their supervision, and as a result, a supervisor must take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment. Workplace bullying and harassment can lead to injury, illness or death.

This Policy provides a consistent legal framework for stakeholders, WorkSafeBC Officers and decision-makers identifying what WorkSafeBC considers to be reasonable steps for a supervisor to prevent where possible, or otherwise minimize, workplace bullying and harassment.

2. Explanatory Notes

Section 117(1)(a) of the Workers Compensation Act ("Act") requires supervisors to take all reasonable steps to ensure the health and safety of workers under their supervision.

This policy (D3-117-2), which flows from the above section in the Act, discusses supervisor duties regarding bullying and harassment.

There are two other related policies that address workplace bullying and harassment: Policy D3-115-2, Employer duties, and Policy D3-116-1, Worker duties.

3. The Act

Section 117

(1) Every supervisor must

(a) ensure the health and safety of all workers under the direct supervision of the supervisor….

POLICY

Definition

"bullying and harassment" (a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but

(b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

A supervisor's obligation to ensure health and safety of workers includes:

(a) not engaging in bullying and harassment of workers, other supervisors, the employer or persons acting on behalf of the employer; and

(b) applying and complying with the employer's policies and procedures on bullying and harassment.

PRACTICE

The definition of bullying and harassment includes any inappropriate conduct or comment by a 'person' towards a worker that the 'person' knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.

A 'person' includes any individual, whether or not they are a workplace party. This means that a 'person' could be a workplace party such as an employer, supervisor, or co-worker, or a non workplace party such as a member of the public, a client, or anyone a worker comes into contact with at the workplace.

Black's Law Dictionary, Ninth Edition, defines a reasonable person as follows:

"…a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions…"


EFFECTIVE DATE: November 1, 2013
AUTHORITY: s. 117(1)(a) of the Workers Compensation Act
HISTORY:  
APPLICATION:  

Policy Item D3-117-3
RE: Supervisor Duties - Wood Dust Mitigation and Control

BACKGROUND
1. Preamble

A supervisor has a duty to take all reasonable steps to ensure the health and safety of workers under their supervision, and as a result, a supervisor has duties with regard to the hazards of combustible wood dust.

Combustible dusts are fine particles that present an explosion hazard when suspended in air under certain conditions. Combustible wood dust has resulted in catastrophic explosions with loss of life and serious injuries.

This policy provides a consistent legal framework for stakeholders, WorkSafeBC officers, and decision-makers identifying what WorkSafeBC considers reasonable steps for a supervisor to meet his or her duties with respect to these hazards.

2. Explanatory Notes

Section 117(1)(a) of the Workers Compensation Act ("Act") requires supervisors to take all reasonable steps to ensure the health and safety of workers under their supervision.

Section 3.10 of the Occupational Health and Safety Regulation ("Regulation") requires a supervisor who receives a report of an unsafe condition or act to investigate and ensure that necessary corrective action is taken immediately.

This policy (D3-117-3), flows from the above sections of the Act and Regulation and addresses supervisor duties regarding combustible wood dust.

Two other related policies address combustible wood dust: D3-115-3, Employer duties; and D3-116-2, Worker duties.

3. Legal Authority

Section 117, Act:

(1) Every supervisor must

(a) ensure the health and safety of all workers under the direct supervision of the supervisor....

Section 3.9, Regulation

Unsafe or harmful conditions found in the course of an inspection must be remedied without delay.

Section 3.10, Regulation

Whenever a person observes what appears to be an unsafe or harmful condition or act the person must report it as soon as possible to a supervisor or to the employer, and the person receiving the report must investigate the reported unsafe condition or act and must ensure that any necessary corrective action is taken without delay.

POLICY

In addition to a supervisor's duties as a worker or employer, a supervisor's obligation to ensure the health and safety of workers includes:

(a) investigating any reports received by the supervisor or inspection results identifying an unsafe condition or act relating to combustible wood dust and ensuring that necessary corrective action is taken immediately; and

(b) complying with the employer's combustible wood dust management program.


EFFECTIVE DATE: September 1, 2014
AUTHORITY: s. 117(1)(a), Workers Compensation Act
ss. 3.9, 3.10, Occupational Health and Safety Regulation
CROSS REFERENCES: D3-115-3 (Employer Duties - Wood Dust Mitigation and Control),
D3-116-2 (Worker Duties - Wood Dust Mitigation and Control)
HISTORY:  
APPLICATION:  

Policy Item D3-118-1
RE: General Duties - Multiple-Employer Workplaces

BACKGROUND

1. Explanatory Notes
Section 118 sets out responsibilities at a "multiple employer workplace". It provides that the "prime contractor" is responsible for the coordination of activities at these workplaces and defines "prime contractor" for this purpose.

2. The Act
Section 118(1):

In this section:
"multiple-employer workplace" means a workplace where workers of 2 or more employers are working at the same time;

"prime contractor" means, in relation to a multiple-employer workplace,

(a) the directing contractor, employer or other person who enters into a written agreement with the owner of that workplace to be the prime contractor for the purposes of this Part, or

(b) if there is no agreement referred to in paragraph (a), the owner of the workplace.

Section 118(2):

The prime contractor of a multiple-employer workplace must

(a) ensure that the activities of employers, workers and other persons at the workplace relating to occupational health and safety are coordinated, and

(b) do everything that is reasonably practicable to establish and maintain a system or process that will ensure compliance with this Part and the regulations in respect of the workplace.

Section 118(3):

Each employer of workers at a multiple-employer workplace must give to the prime contractor the name of the person the employer has designated to supervise the employer's workers at that workplace.

POLICY

For sake of clarity, the following apply in determining whether there is a "multiple-employer workplace" under section 118:

Two or more adjacent workplaces do not constitute a "multiple-employer workplace", even though the activities at one workplace might affect the health and safety of workers at an adjacent workplace.

It does not matter whether:

workers of different employers are present at the same time working on different projects; or

workers of different employers are present at the same time working on the same project.

In both cases, the workplace will generally be a "multiple-employer workplace"

In determining whether "workers of 2 or more employers are working at the same time", the phrase "at the same time" will be given such fair, large and liberal construction as may best attain the objectives of section 118. "At the same time" does not mean that, at any precise point in time, there are workers of 2 or more employers present in the workplace. Rather, it means that, over an appropriate interval, there are workers of 2 or more employers present in the workplace, whether or not the 2 or more groups of workers are actually present together in the workplace at any precise point in time at all. The duration of the interval of time to be considered will depend upon the circumstances of the individual workplace.

Whether the workers of the one employer come into actual contact with the workers of the other employer does not generally affect the determination of whether the workplace is a "multiple-employer workplace". An employer, the employer's workers and their activities could well affect the health and safety of another employer's workers who come into the workplace later in the day or on another day, even though there may be no actual contact between the two groups of workers.

However, the degree to which the activities of the first employer and its workers affect the health and safety of the second employer's workers will generally affect the determination of the responsibilities of the prime contractor and of the two employers under Part 3 and the regulations.

Virtually all workplaces will be visited by workers of other employers. For example, workers may deliver or pick up mail, goods or materials or enter to inspect the premises. Short term visits of this type, even if regular, do not make the workplace a "multiple-employer workplace" for purposes of section 118(1).

The written agreement referred to in section 118(1) must be made available within a reasonable time if requested by a Board officer.

There can be only one "prime contractor" at a workplace at any point in time. If an owner enters into more than one agreement purporting to create a "prime contractor" for the same period of time, the owner is considered to be the prime contractor.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.118, Workers Compensation Act
CROSS REFERENCES: See also Supervisors (Item D3-117-1), Owners (Item D3-119-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D3-119-1
RE: General Duties - Owners

BACKGROUND

1. Explanatory Notes
Section 119 of the Act sets out the general duties of owners under Part 3 of the Act. This policy clarifies when these duties apply, and which owner(s) will be responsible for compliance, in multiple owner situations.

2. The Act
Section 106:

"owner" includes

(a) a trustee, receiver, mortgagee in possession, tenant, lessee, licensee or occupier of any lands or premises used or to be used as a workplace, and

(b) a person who acts for or on behalf of an owner as an agent or delegate.

Section 119:

Every owner of a workplace must

(a) provide and maintain the owner's land and premises that are being used as a workplace in a manner that ensures the health and safety of persons at or near the workplace,

(b) give to the employer or prime contractor at the workplace the information known to the owner that is necessary to identify and eliminate or control hazards to the health or safety of persons at the workplace, and

(c) comply with this Part, the regulations and any applicable orders.

POLICY

The purpose of this policy is to ensure that owners understand and fulfill their responsibilities under section 119 of the Act, especially in multiple owner situations.

The term "owner" is defined broadly under the Act to include several parties such as the person who holds the legal title to land or premises, a mortgagee in possession, a tenant, a lessee, a licensee, a trustee, and any other occupier of lands or premises used or to be used as a workplace.

Accordingly, more than one person may simultaneously meet the definition of the term "owner" in respect of a particular workplace. For example, both the entity that holds legal title to land and the entity that leases it for business purposes would qualify as owners under the Act. In such circumstances, referred to as multiple owner situations, all the owners of a particular workplace are responsible for fulfilling the duties set out in section 119 of the Act, the regulations, and any applicable orders, subject to the Limited Exemption under section 124 of the Act.

When the duties set out in section 119 of the Act have not been met by a party or parties, and the Limited Exemption does not apply, Board officers will determine which owner(s) should be held responsible for the violation. In making this determination, Board officers will consider who had or should have had knowledge of, and control over, the particular workplace. To assist in this consideration, a non-exhaustive list of factors is set out below. When these factors are present, an owner will likely be held responsible for or have to address an issue.

1. The owner knew or should have known that:

Category 1: Knowledge

(a) persons would be at or near the land and premises that were being used as a workplace, and

(b) the health and safety of such persons might be harmed by the condition or use of the workplace, and

(c) the extent of the harm, if it occurred, would be more than minor or trivial.

Category 2: Control

2. The owner had some control or influence over the safety of the workplace in that the owner:

(a) could practicably have taken measures necessary to eliminate or reduce either:

(i) the risk of the potential harm, or

(ii) the extent of the potential harm,

to persons at or near the workplace; or

(b) possessed material information and either:

(i) failed to communicate all this information to the persons at or near the workplace and thus, prevented them from taking measures to protect themselves, or

(ii) communicated all this information to the persons at or near the workplace, but then unreasonably expected those persons to take the required precautions against a particular hazard.


EFFECTIVE DATE: December 1, 2004
AUTHORITY: s.119, Workers Compensation Act
CROSS REFERENCES: See also sections 73(1) (Claims Cost Levy) and 111 (Board's mandate under this Part) of the Act; Part 3, Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences) of the Act; Policies in the Prevention Manual in Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
On December 1, 2004, provisions of the Act with respect to multiple owner situations were clarified, and the list of factors which Board officers consider before holding an owner responsible for a compliance issue were rewritten in a more directive manner.
APPLICATION: To all situations in which an owner has responsibilities under section 119 of the Act on or after December 1, 2004.

Policy Item D3-121-1
RE: General Duties - Directors and Officers of a Corporation

BACKGROUND

1. Explanatory Notes

Section 121 sets out the duties of directors and officers of a corporation. The provision should be read in conjunction with Section 213(2).

2. The Act
Section 121:

Every director and every officer of a corporation must ensure that the corporation complies with this Part, the regulations and any applicable orders.

Section 213:

(1) A person who contravenes a provision of this Part, the regulations or an order commits an offence.

(2) If a corporation commits an offence referred to in subsection (1), an officer, director or agent of the corporation who authorizes, permits or acquiesces in the commission of the offence also commits an offence.

(3) Subsection (2) applies whether or not the corporation is prosecuted for the offence.

POLICY

The Board will not automatically issue an order to officers, directors or agents of a corporation each time an order is written to the corporation.

The Board will, however, issue orders to officers, directors or agents where there is evidence that they were responsible for the failure by the corporation. Being "responsible" includes authorizing, permitting or acquiescing in the failure.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: ss.121 and 213, Workers Compensation Act
CROSS REFERENCES: See also Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Overlapping Obligations (D3-123/124-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D3-123/124-1
RE: General Duties - Overlapping Obligations

BACKGROUND

1. Explanatory Notes
Section 123 of the Act describes how persons may be subject to obligations in relation to more than one role. Section 124 of the Act explains what can happen when more than one person is responsible for fulfilling the same obligations. This policy provides guidance on when a party with obligations under the Act will be held responsible for a violation of these responsibilities despite the fact that one or more other parties share the same obligations.

2. The Act
Section 123:

(1) In this section, "function" means the function of employer, supplier, supervisor, owner, prime contractor or worker.

(2) If a person has 2 or more functions under this Part in respect of one workplace, the person must meet the obligations of each function.

Section 124:

If

(a) one or more provisions of this Part or the regulations impose the same obligation on more than one person, and

(b) one of the persons subject to the obligation complies with the applicable provision,

the other persons subject to the obligation are relieved of that obligation only during the time when

(c) simultaneous compliance by more than one person would result in unnecessary duplication of effort and expense, and

(d) the health and safety of persons at the workplace is not put at risk by compliance by only one person.

POLICY

The purpose of this policy is to ensure that all of the duties under the Act are effectively fulfilled despite the fact that multiple parties may share the same responsibilities.

All parties with duties under the Act may be able to affect the health and safety of persons at or near a workplace. Any and all of these parties may be cited for violations of their statutory duties regardless of whether or not another person has fulfilled his or her statutory responsibilities.

Under section 124 of the Act, one person may be relieved of his or her obligations under Part 3 of the Act or the regulations if:

  • another person who is subject to the same obligations complies with those obligations, and
  • simultaneous compliance by more than one person would result in unnecessary duplication of effort and expense, and
  • the health and safety of persons at the workplace would not be put at risk by the compliance of only one person.

The first requirement of this Limited Exemption means that persons who have the same duty under the Act or regulations may agree amongst themselves as to who should perform it. The Board is neither bound by any agreements of this nature, nor by whether the terms of the agreement are complied with. The Board's primary concern is that the duty in question is fulfilled.

Further, even if the first requirement is satisfied, the Limited Exemption will only apply if the Board determines that the second and third requirements set out in section 124 are also satisfied. The third requirement of the Limited Exemption will not be met if performance of the occupational health and safety duty by one person leaves health and safety risks that would be eliminated by others performing their duty.


EFFECTIVE DATE: December 1, 2004
AUTHORITY: ss.123 and 124, Workers Compensation Act
CROSS REFERENCES: See also sections 73(1) (Claims Cost Levy) and 111 (Board's mandate under this Part) of the Act; Part 3, Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences) of the Act; Policies in the Prevention Manual in Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
On December 1, 2004, provisions of the Act with respect to overlapping obligations were clarified.
APPLICATION: To all situations in which more than one party shares the same obligations under Part 3 of the Act or the regulations on or after December 1, 2004.

Policies Workers Compensation Act Part 3 Division 4 - Joint Committees and Worker Representatives

Policy Item D4-125-1
RE: Joint Committees - When a Committee is Required

BACKGROUND
1. Explanatory Notes
Section 125 sets out the requirement for a joint committee in certain circumstances. Section 127 sets out membership requirements.

2. The Act
Section 125:

An employer must establish and maintain a joint health and safety committee

(a) in each workplace where 20 or more workers of the employer are regularly employed, and

(b) in any other workplace for which a joint committee is required by order.

Section 127:

A joint committee for a workplace must be established in accordance with the following:

(a) it must have at least 4 members or, if a greater number of members is required by regulation, that greater number;

(b) it must consist of worker representatives and employer representatives;

(c) at least half the members must be worker representatives;

(d) it must have 2 co-chairs, one selected by the worker representatives and the other selected by the employer representatives.

POLICY
A joint health and safety committee is an important prevention tool. People who work at a particular workplace and who are knowledgeable or trained in the operations of that workplace can make a positive contribution to preventing workplace injuries and illnesses.

Section 125 expands the requirement for joint committees significantly beyond what was required prior to the implementation of the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998. In administering section 125, the Board will be mindful of the intent evidenced by this expansion.

(a) Section 125(a)
Section 125(a) requires a joint health and safety committee "in each workplace where 20 or more workers of the employer are regularly employed". A workplace will fall within the terms of this provision if the employer has 20 or more workers who have been employed at the workplace for a period of not less than one month.

All workers are considered for this purpose regardless of how the employer or workers may define their status.

The 20 or more workers must be at one workplace before a committee is required under section 125(a). The fact that the employer may have 20 or more workers spread over several workplaces is not sufficient. However, the Board may order that a committee be established in such a case if warranted under the criteria set out below.

(b) Section 125(b)
Before an officer may order the establishment of a committee under section 125(b), the officer must be satisfied that a committee is required to deal with common health and safety issues arising at the workplace. The officer must consider:

  • the nature of the hazards at the workplace;
  • the extent and effectiveness of the employer's occupational health and safety program;
  • the availability of alternative ways of dealing with the health and safety issues arising at the workplace;
  • whether a worker health and safety representative has been appointed;
  • the number of workers at the workplace; and
  • any other relevant circumstances.

EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.125, Workers Compensation Act
CROSS REFERENCES: See also Joint Committees - Worker Health and Safety Representatives (Item D4-139-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D4-132/133-1
RE: Procedures and Resolving Disagreements

BACKGROUND
1. Explanatory Notes
A number of provisions in Division 4 provide the Board with discretion to resolve various disagreements. These provisions include:

  • a dispute over the process for selecting worker representatives for the committee (s. 128);
  • a dispute over joint committee rules of procedure, including rules respecting how it is to perform its duties and functions (ss.132 and 133);
  • if a joint committee is unable to reach agreement on a matter relating to the health or safety of workers at the workplace (s.132);
  • if the employer does not accept the joint committee's recommendations with respect to a particular matter (s.133(3)); and
  • if the joint committee is not satisfied that the employer's explanation for a delay in responding to the committee's recommendations is reasonable in the circumstances (s.133(5)).

Policy is required as to when the Board will investigate a matter under these provisions.

2. The Act
Section 128:

(1) The worker representatives on a joint committee must be selected from workers at the workplace who do not exercise managerial functions at that workplace, as follows:

(a) if the workers are represented by one or more unions, the worker representatives are to be selected according to the procedures established or agreed on by the union or unions;

(b) if none of the workers are represented by a union, the worker representatives are to be elected by secret ballot;

(c) if some of the workers are represented by one or more unions and some are not represented by a union, the worker representatives are to be selected in accordance with paragraphs (a) and (b) in equitable proportion to their relative numbers and relative risks to health and safety;

(d) if the workers do not make their own selection after being given the opportunity under paragraphs (a) to (c), the employer must seek out and assign persons to act as worker representatives.

(2) The employer or a worker may request the board to provide direction as to how an election under subsection (1) (b) is to be conducted.

(3) The employer, or a union or a worker at a workplace referred to in subsection (1) (c), may request the board to provide direction as to how the requirements of that provision are to be applied in the workplace.

Section 131:

(1) Subject to this Part and the regulations, a joint committee must establish its own rules of procedure, including rules respecting how it is to perform its duties and functions.

(2) A joint committee must meet regularly at least once each month, unless another schedule is permitted or required by regulation or order.

Section 132:

(1) If a joint committee is unable to reach agreement on a matter relating to the health or safety of workers at the workplace, a co-chair of the committee may report this to the board, which may investigate the matter and attempt to resolve the matter.

(2) If the Board considers that a joint committee is unable to reach agreement on a matter relating to the health or safety of workers at the workplace, the Board, on its own initiative, may investigate the matter and attempt to resolve the matter.

Section 133:

(1) This section applies if a joint committee sends a written recommendation to an employer with a written request for a response from the employer.

(2) Subject to subsections (4) and (5), the employer must respond in writing to the committee within 21 days of receiving the request, either

(a) indicating acceptance of the recommendation, or

(b) giving the employer's reasons for not accepting the recommendation.

(3) If the employer does not accept the committee's recommendations, a co-chair of the committee may report the matter to the board, which may investigate and attempt to resolve the matter.

(4) If it is not reasonably possible to provide a response before the end of the 21 day period, the employer must provide within that time a written explanation for the delay, together with an indication of when the response will be provided.

(5) If the joint committee is not satisfied that the explanation provided under subsection (4) is reasonable in the circumstances, a co-chair of the committee may report this to the board, which may investigate the matter and may, by order, establish a deadline by which the employer must respond.

(6) Nothing in this section relieves an employer of the obligation to comply with this Part and the regulations.

POLICY
In determining whether to investigate matters in order to resolve disagreements under Division 4, the Board will consider:

  • the Board's statutory authority to investigate in the particular situation;
  • whether there is an immediate hazard that needs to be resolved;
  • whether the issue is significant in terms of preventing injuries and illnesses;
  • whether there is an alternative method for resolving the issue; and
  • whether the Board is likely to be able to resolve the issue.

Where the Board does investigate, the extent and nature of investigations will depend on the circumstances. Not all investigations will involve a visit to the workplace.

With regard to sections 132 and 133(3), the investigating officer will, where applicable, make relevant determinations as to whether the Act and regulations are being complied with or whether an unsafe situation exists. If the disagreement involves matters going beyond what is specifically required to comply with the regulations, the officer may discuss the issue with the parties and suggest options but will not decide the disagreement.

If the employer fails to make any response at all or to meet a deadline set by the Board under section 133(5), the Board may order that a response be made under section 187 and/or take whatever other enforcement action may be appropriate.

Joint committees themselves have the authority to determine the constitution of the committee, to the extent that this is not covered by Part 3 or the regulations.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: ss.128, 131, 132 and 133; Workers Compensation Act
CROSS REFERENCES: See also Joint Committees - Time off Work (Item D4-134-1), Educational Leave (Item D4-135-1), Employer Must Post Committee Information (Item D4-138-1), Worker Health and Safety Representative (Item D4-139-1)
HISTORY: Housekeeping changes to Background Section effective January 1, 2016 to reflect amendments to the Workers Compensation Act.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D4-134-1
RE: Joint Committees - Time Off Work

BACKGROUND
1. Explanatory Notes
Section 134 sets out the right of joint committee members to take time off from work for certain purposes and to be paid for that time.

2. The Act
Section 134:

(1) A member of a joint committee is entitled to time off from work for

(a) the time required to attend meetings of the committee, and

(b) other time that is reasonably necessary to prepare for meetings of the committee and to fulfill the other functions and duties of the committee.

(2) Time off under subsection (1) is deemed to be time worked for the employer, and the employer must pay the member for that time.

POLICY
Members of joint health and safety committees are entitled to take time off from work for the purposes set out in section 134. What constitutes "reasonably necessary" time in section 134(1)(b) will depend on the circumstances including:

  • the role of the member on the committee; and
  • the health and safety conditions at the workplace.

If the employer is concerned about the amount of time spent on committee activities, the employer should raise this issue with the committee through its representatives.

If a member of the committee considers that the employer is not allowing the member the time to which he or she is entitled under section 134, the member may, after raising the matter with the committee and the employer, complain to the Board. The Board will investigate the matter. Depending upon its findings, the Board may:

  • decide that no further action is appropriate;
  • attempt to resolve the dispute; or
  • make an order under section 187 requiring the employer to comply with section 134.

If the employer does not pay the worker's wages for time properly taken under section 134, a complaint can be made to the Board under section 152.

The employer has the right to manage the workplace and determine how much time workers spend on different activities. However, the employer's right is subject to the Act and the regulations. In dealing with matters covered by section 134, the employer must exercise the right in a manner consistent with the purpose and intent of section 134.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.134, Workers Compensation Act
CROSS REFERENCES: See also s. 154, Workers Compensation Act; Joint Committees - Procedures and Resolving Disagreements (Item D4-132/133-1) and Discriminatory Actions/Failure to Pay Wages - Scope (Item D6-150/151/152-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D4-135-1
RE: Joint Committees - Educational Leave

BACKGROUND
1. Explanatory Notes
Section 135 provides for educational leave for members of joint committees. Section 135(3) requires the employer to provide the leave without loss of pay or other benefits.

2. The Act
Section 135:

(1) Each member of a joint committee is entitled to an annual educational leave totalling 8 hours, or a longer period if prescribed by regulation, for the purposes of attending occupational health and safety training courses conducted by or with the approval of the Board.

(2) A member of the joint committee may designate another member as being entitled to take all or part of the member's educational leave.

(3) The employer must provide the educational leave under this section without loss of pay or other benefits and must pay for, or reimburse the worker for, the costs of the training course and the reasonable costs of attending the course.

POLICY
Members of joint health and safety committees are entitled to take time off from work to attend occupational health and safety training courses conducted by or with the approval of the Board.

Decisions as to when members will attend courses, what courses they will attend and at what time and place will normally be made as follows:

  • An individual member will bring his or her request to the committee.
  • If the committee agrees, the committee will forward the request to the employer.
  • If the committee does not agree, or is unable to come to a decision within a reasonable time, the individual member may forward the request to the employer.
  • Upon receiving a request from either the committee or the individual member, the employer will make its decision within a reasonable time. The employer will give reasons in writing where required by section 133. In making its decision, the employer must act in a manner consistent with the purpose and intent of section 135. Permission must not be unreasonably denied.

If a member of the committee considers that the employer is not allowing the member the leave to which he or she is entitled under section 135, the member may, after following the above process, complain to the Board. The Board will investigate the matter. Depending upon its findings, the Board may:

  • decide that no further action is appropriate;
  • attempt to resolve the dispute; or
  • make an order under section 187 requiring the employer to comply with section 135.

If the employer does not pay a worker's wages for leave taken under section 135, a complaint can be made to the Board under section 152.


EFFECTIVE DATE: July 1, 2003
AUTHORITY: s.135, Workers Compensation Act
CROSS REFERENCES: See also s. 152, Workers Compensation Act; Joint Committees - Procedures and Resolving Disagreements (Item D4-132/133-1), Discriminatory Actions/Failure to Pay Wages - Investigation of Complaint (Item D6-153-1) and Orders - General Authority (Item D12-187-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Act, 1998, effective October 1, 1999. Effective July 1, 2003 subsequent minor change made to correct an error in statutory citation; section 133(3) was removed and replaced with section 133.
APPLICATION:

Policy Item D4-139-1
RE: Joint Committees - Worker Health and Safety Representative

BACKGROUND
1. Explanatory Notes
Section 139 sets out the requirement for a worker health and safety representative in certain workplaces. With respect to section 139(4), the matters covered by sections 133 to 136 include:

  • time off work under section 134 that is "reasonably necessary" to fulfill the representative's duties and functions;
  • eight hours annual educational leave under section 135;
  • the obligation of the employer to respond to recommendations under section 133, and for the representative to apply to the Board if the employer delays the response or rejects the recommendation; and
  • the obligation of the employer to provide other administrative support, and information, under section 136.

2. The Act
Section 139:

(1) A worker health and safety representative is required

(a) in each workplace where there are more than 9 but fewer than 20 workers of the employer regularly employed, and

(b) in any other workplace for which a worker health and safety representative is required by order of the board.

(2) The worker health and safety representative must be selected in accordance with section 128 from among the workers at the workplace who do not exercise managerial functions at that workplace.

(3) To the extent practicable, a worker health and safety representative has the same duties and functions as a joint committee.

(4) Sections 133 to 136 apply in relation to a worker health and safety representative as if the representative were a joint committee or member of a joint committee.

POLICY
A worker health and safety representative is required in each workplace where "there are more than 9 but fewer than 20 workers of the employer regularly employed". A workplace will fall within the terms of this provision if it normally has more than 9 but fewer than 20 workers who have been employed at the workplace for a period of not less than one month.

In deciding whether to order a worker health and safety representative under section 139(1)(b), the Board will follow the same criteria as when deciding whether to order a joint committee under section 125(b). Where the Board orders a joint committee under section 125(b), a worker health and safety representative under section 139(1)(a) is not required.

In interpreting section 139(4), the right to take time off work to attend and prepare for joint committee meetings under section 134 does not apply to a sole worker health and safety representative.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.139, Workers Compensation Act
CROSS REFERENCES: See also s. 125(b), Workers Compensation Act; Joint Committees - When a Committee is Required (Item D4-125-1)
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D4-140-1
RE: Joint Committees - Participation of Worker Representative in Inspections

BACKGROUND
1. Explanatory Notes
These sections provide for the participation of a worker member from the joint committee, the worker health and safety representative or another worker representative on inspections.

2. The Act
Section 140:

If

(a) this Part or the regulations give a worker representative the right to be present for an inspection, investigation or inquiry at a workplace, and

(b) no worker representative is reasonably available,

the right may be exercised by another worker who has previously been designated as an alternate by the worker representative.

Section 182(1)(b):

(1) Subject to this section, if an officer makes a physical inspection of a workplace under section 179,

(a) the employer or a representative of the employer, and

(b) a worker representative or, if there is no worker representative or the worker representative is not reasonably available, a reasonably available worker selected by the officer as a representative,

are entitled to accompany the officer on the inspection.

Section 106:

"worker representative" means

(a) in relation to a workplace for which there is a joint committee, a worker representative on the committee, and

(b) in relation to a workplace for which there is a worker health and safety representative, that representative

POLICY
There is no POLICY for this Item.

PRACTICE
The officer will only exercise the authority under section 182 to select a worker representative if the actual worker representative fails to designate an alternate under section 140 or if the designated alternative is not available.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.140, 182, Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policies Workers Compensation Act Part 3 Division 6 - Prohibition Against Discriminatory Action

Policy Item D6-150/151/152-1
RE: Discriminatory Actions/ Failure to Pay Wages - Scope

BACKGROUND
1. Explanatory Notes
Workers have a right to complain to the Board regarding:

  • "discriminatory action" by their employer or union; or
  • the failure by their employer to pay wages required by Part 3 or the regulations.

"Discriminatory action" includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.

The Act defines "discriminatory action" by including within it certain matters. The phrase could also include other matters that normally fall within the meaning of "discrimination". However, the Act only provides rights for a worker when the "discriminatory action" relates to the matters outlined in section 151.

Section 152 describes how a worker, who considers that the worker's employer or union has taken, or threatened to take, discriminatory action against the worker or has failed to pay the wages required by Part 3 or the regulations, may make a complaint to the Board. It includes the time limits within which the complaint must be made.

2. The Act
Section 150:

(1) For the purposes of this Division, "discriminatory action" includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.

(2) Without restricting subsection (1), discriminatory action includes

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of workplace, reduction in wages or change in working hours,

(d) coercion or intimidation,

(e) imposition of any discipline, reprimand or other penalty, and

(f) the discontinuation or elimination of the job of the worker.

Section 151:

An employer or union, or a person acting on behalf of an employer or union, must not take or threaten discriminatory action against a worker

(a) for exercising any right or carrying out any duty in accordance with this Part, the regulations or an applicable order,

(b) for the reason that the worker has testified or is about to testify in any matter, inquiry or proceeding under this Act or the Coroners Act on an issue related to occupational health and safety or occupational environment, or

(c) for the reason that the worker has given any information regarding conditions affecting the occupational health or safety or occupational environment of that worker or any other worker to

(i) an employer or person acting on behalf of an employer,

(ii) another worker or a union representing a worker, or

(iii) an officer or any other person concerned with the administration of this Part.

Section 152:

(1) A worker who considers that

(a) an employer or union, or a person acting on behalf of an employer or union, has taken, or threatened to take, discriminatory action against the worker contrary to section 151, or

(b) an employer has failed to pay wages to the worker as required by this Part or the regulations

may have the matter dealt with through the grievance procedure under a collective agreement, if any, or by complaint in accordance with this Division.

(2) A complaint under subsection (1) must be made in writing to the Board,

(a) in the case of a complaint referred to in subsection (1) (a), within 1 year of the action considered to be discriminatory, and

(b) in the case of a complaint referred to in subsection (1) (b), within 60 days after the wages became payable.

(3) In dealing with a matter referred to in subsection (1), whether under a collective agreement or by complaint to the Board, the burden of proving that there has been no such contravention is on the employer or the union, as applicable.

POLICY
Section 152 applies to a failure of the employer to pay wages to the worker as required by the Part.

Some sections do not use the term "wages", but require the worker to be paid for lost time, notably:

  • 134(2) (time off work by members of joint committees);
  • 135(3) (educational leave for committee members - section 152 only applies to the payment of wages, not other costs such as travel expenses);
  • 182(4) (worker accompanying inspection); and
  • 192(1) (lay off resulting from stop work order).

As the payments under these sections are in substances "wages", a failure to pay them may be remedied by a complaint under section 152.


EFFECTIVE DATE: July 1, 2003
AUTHORITY: ss.150, 151, and 152 Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Act, 1998, effective October 1, 1999. Effective July 1, 2003 minor changes made to strike out references to sections 147 and 148, as these sections were never proclaimed into effect.
APPLICATION:

Policy Item D6-153-1
RE: Discriminatory Actions/ Failure to Pay Wages - Investigation of Complaint

BACKGROUND
1. Explanatory Notes
Upon receipt of a complaint, the Board must immediately inquire into the matter.

In dealing with a matter regarding discriminatory action, the burden of proving there has been no such contravention is on the employer or the union, as applicable.

2. The Act
Section 153(1):

If the board receives a complaint under section 152 (2), it must immediately inquire into the matter and, if the complaint is not settled or withdrawn, must

(a) determine whether the alleged contravention occurred, and

(b) deliver a written statement of the board's determination to the worker and to the employer or union, as applicable.

POLICY
When the Board receives a complaint from a worker within the time frame allowed by section 152(2), the Board will, where further information is needed, carry out an initial inquiry to establish the basic facts alleged by the worker and to determine whether, if accurate, they fall within the terms of section 152. Inquiry will also be made as to what remedy the worker is seeking.

Copies of documents supplied by the worker, as well as the results of any Board inquiry, will be provided to the employer or union against whom the complaint is made. The employer or union will then be given time to meet its onus under section 152(3) of proving that no contravention of the Act or regulations took place and to comment on the remedy proposed by the worker. The worker will be provided with a copy of the Board's investigation as well as any response to the complaint by the employer or union, and given an opportunity to respond.

Further inquiries by the Board may then be made, as well as exchanges of submissions and information that may be required by the rules of natural justice. An oral hearing is not required, but may be held if the Board considers it necessary to properly decide a complaint.

The worker may withdraw a complaint at any time, settle the dispute privately with the employer or union, or pursue alternative remedies under a collective agreement.

The worker cannot pursue both a grievance under a collective agreement and a complaint to the Board regarding the same alleged discriminatory action or failure to pay wages. The worker is required to elect between the two processes.

If the worker elects to pursue a grievance under a collective agreement, but the union decides not to pursue the grievance, the worker may revoke his or her election within 30 days of the union's decision and pursue a complaint to the Board. The complaint must, however, still be made within one year of the action considered to be discriminatory or within 60 days after the wages became payable.

PRACTICE
The Board will consider granting an oral hearing when:

  • there is a significant issue of credibility;
  • there is evidence that must be presented orally;
  • the decision to be reviewed raises an issue of general significance; or
  • there are other grounds for having an oral hearing.

EFFECTIVE DATE: October 1, 1999
AUTHORITY: s.153(1), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to replace a reference to reviewing officer with the Board and make formatting changes.
APPLICATION:

Policy Item D6-153-2
RE: Discriminatory Actions/ Failure to Pay Wages - Remedies

BACKGROUND
1. Explanatory Notes
Section 153(2) sets out the remedies that the Board may order if the Board, after investigation, determines that there has been discriminatory action or a failure to pay wages.

2. The Act
Section 153(2):

If the board determines that the contravention occurred, the board may make an order requiring one or more of the following:

(a) that the employer or union cease the discriminatory action;

(b) that the employer reinstate the worker to his or her former employment under the same terms and conditions under which the worker was formerly employed;

(c) that the employer pay, by a specified date, the wages required to be paid by this Part or the regulations;

(d) that the union reinstate the membership of the worker in the union;

(e) that any reprimand or other references to the matter in the employer's or union's records on the worker be removed;

(f) that the employer or the union pay the reasonable out of pocket expenses incurred by the worker by reason of the discriminatory action;

(g) that the employer or the union do any other thing that the board considers necessary to secure compliance with this Part and the regulations.

POLICY
(a) Object of awarding remedies
The Board's object in exercising these powers is, as far as is practicable, to put the worker in the same position as the worker would have been if the discriminatory action or the failure to pay wages had not occurred. This may involve measuring not only the worker's actual loss, but determining whether there were any measures the worker could have reasonably taken to reduce or eliminate that loss.

(b) Factors considered in awarding remedies
The factors considered in determining the worker's loss include:

  • whether the worker has tried to eliminate or reduce the loss and, if the worker has not done so, whether it would have been reasonable for the worker to have tried;
  • any collateral benefits the worker has received from the employer (collateral benefits from a source other than the employer, such as employment insurance and private insurance benefits, are not to be considered); and
  • other circumstances affecting the worker's loss that arise independently of the worker's conduct after the discriminatory action or failure to pay wages has occurred, for example, the closure of the place of employment.

(c) Explanation of Specific Remedies
Reinstatement to employment
The Board may order reinstatement to employment retroactive to when the discriminatory action occurred.

Payment of wages
The Board may make orders with respect to payment of wages in a variety of circumstances. These include:

  • an order for reinstatement that requires the employer to pay back wages, reinstate benefits retroactively and perform other incidental acts. The authority to do this is found in section 153(2)(b);
  • an order that requires the employer to pay, by a specified date, the wages required to be paid under Part 3 or the regulations. The authority to do this is found in section 153(2)(c); and
  • an order that requires an employer to reimburse the loss of pay where the discriminatory action involved the employer reducing the worker's pay. The authority to do this is found in section 153(2)(g).

The wages, salaries and other employment benefits covered by these provisions are those falling within the definition of "wages" in the Employment Standards Act. This definition does not include every payment or benefit that workers receive as a result of their employment.

Expenses
The Board has discretion to order the employer or union to pay reasonable out-of-pocket expenses incurred by the worker by reason of the discriminatory action.

Since the Board carries out the initial inquiry that is necessary to establish the basic facts of the worker's complaint, the worker does not need to incur costs in making a complaint. If the worker feels that a particular inquiry is needed, he or she can request the Board to do this.

The employer or union will meet their own costs of proving that no contravention of the Act took place and responding to any material supplied by the Board or arising out of the Board's inquiry.

Where a complaint is upheld, the Board will not normally make orders that the employer or union pay legal or other costs incurred by the worker in order to pursue the complaint. Similarly, where the complaint is not upheld, the Board will not normally order the worker to pay the legal and other costs of the employer or union. Such orders may be made under section 100 of the Act in exceptional situations. These include where there has been flagrant abuse by the employer, worker or union of their rights and responsibilities under the Act and regulations.

(d) Other action by the employer or union
The Board's authority to award remedies under section 153(2) extends only to discriminatory action or failure to pay wages as defined by Division 6. It does not apply to other actions that may be taken by an employer or union.

(e) Other action by the Board
These remedies only apply when there has been a formal written complaint by the worker.

However, the Board may use its other enforcement powers, including an administrative penalty under section 196, to address discriminatory actions or failures to pay wages, whether there has been a formal written complaint or not.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: s. 153(2), Workers Compensation Act
CROSS REFERENCES: See also ss. 100, 106 (Definition of "wages"), Workers Compensation Act
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policies Workers Compensation Act Part 3 Division 8 - Miscellaneous Authority

Policy Item D8-160-1
RE: First Aid Equipment - Imposition of Special Rate of Assessment
BACKGROUND

1. Explanatory Notes
The Board may impose a special rate of assessment under Part 1 of the Act where an employer fails, neglects or refuses to install or maintain first aid equipment required by regulation or order.

2. The Act
Section 160:

If an employer fails, neglects or refuses to install or maintain first aid equipment or service required by regulation or order, the board may do one or more of the following:

(a) have the first aid equipment and service installed, in which case the cost of this is a debt owed by the employer to the board;

(b) impose a special rate of assessment under Part 1 of this Act;

(c) order the employer to immediately close down all or part of the workplace or work being done there until the employer complies with the applicable regulation or order.

POLICY

Where appropriate, the Board will apply the policies and practices set out in the following Items to the imposition of special rates of assessment for first aid equipment and service under section 160:

  • D12-196-1, -2, -3, -4, -6;
  • D12-196-8; and
  • D12-196-10, -11

EFFECTIVE DATE: October 1, 1999
AUTHORITY: s. 160(b), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete reference to Policy D16-223.1, practice reference and make formatting changes.
Effective December 31, 2003, references to two prior policies (Items D12-196-4 and D12-196-5) which no longer exist were deleted and a consequential housekeeping reference to a new policy Item D12-196-4 was added.
APPLICATION:

Policies Workers Compensation Act Part 3 Division 9 - Variance Orders

Policy Item D9-166-1
RE: Variance Orders - Information Required

BACKGROUND
1. Explanatory Notes
Section 166 sets out the information to be provided by an applicant for a variance. Section 166(3) requires the applicant to provide the technical and other information required by the Board.

2. The Act
Section 166:

(1) Subject to the regulations and subsection (2), an application for a variance must be made in writing to the board and must include

(a) a description of the requested variance,

(b) a statement of why the variance is requested, and

(c) information with respect to the benefits and drawbacks in relation to the matters addressed by the regulation that might reasonably be anticipated if the variance is allowed.

(2) In the case of an application by a single worker for a variance order that would apply only to that worker, an application may be made as permitted by the board.

(3) The applicant must also provide the board with the technical and any other information required by the board to deal with the application.

POLICY
In the case of an application under section 166(1), the "other information" required by the Board from an employer under section 166(3) will generally include:

  • the location of the workplace;
  • the type and nature of the work process;
  • the regulation(s) proposed for modification;
  • a description of the proposed procedure or practice that would provide an equivalent level of health and safety to that provided for by the regulation(s);
  • how workers will be trained and supervised; and
  • confirmation that:
    • the variance application has been posted at the workplace, and a copy has been provided to the joint health and safety committee or the worker health and safety representative and to the union, if the workers at the workplace are represented by the union, or
    • if the workplace is not yet in existence, notice has been published where it would reasonably be expected to come to the attention of persons who may be affected.

EFFECTIVE DATE: April 1, 2002
AUTHORITY: s. 166, Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Replaces part of Policy No. 1.2.5 of the Prevention Division Policy and Procedure Manual
APPLICATION: This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item merely continues the substantive requirements of Policy No. 1.2.5, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.5 was issued.

Policy Item D9-168-1
RE: Variance Orders - Consultation on Application

BACKGROUND
1. Explanatory Notes
Section 168 requires the Board to give notice of an application for a variance and conduct the consultations on the application that the Board considers advisable.

2. The Act
Section 168:

(1) After receiving an application for variance, the board may give notice of the application and conduct consultations respecting that application as the board considers advisable.

(2) Before making a decision on an application, the board must provide an opportunity for persons who may be affected by the requested variance to submit to the board information respecting their position on the requested variance.

(3) A union representing workers who may be affected by the requested variance is considered a person who may be affected for the purposes of subsection (2).

POLICY
The persons whom the Board will notify and consult respecting the application for a variance include:

  • the chairs of the joint health and safety committee or worker health and safety representative;
  • the union, if workers in the workplace are represented by the union; and
  • if there is no committee, worker health and safety representative or union at the workplace, a worker representative, if practicable.

The persons notified will be asked for comments, invited to participate in any hearing or other proceedings that may be held on the application, and advised of the decision.


EFFECTIVE DATE: April 1, 2002
AUTHORITY: s. 168, Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Replaces part of Policy No. 1.2.5 of the Prevention Division Policy and Procedure Manual
APPLICATION: This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item merely continues the substantive requirements of Policy No. 1.2.5, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.5 was issued.

Policies Workers Compensation Act Part 3 Division 10 - Accident Reporting and Investigation

Policy Item D10-172-1
RE: Major Release of Hazardous Substance

BACKGROUND
1. Explanatory Notes

Section 172(1) sets out the situations where the employer must immediately notify the Board of the occurrence of any accident.

2. The Act

Section 172(1):

An employer must immediately notify the board of the occurrence of any accident that

(a) resulted in serious injury to or the death of a worker,

(b) involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation,

(c) involved the major release of a hazardous substance,

(c.1) involved a fire or explosion that had a potential for causing serious injury to a worker, or

(d) was an incident required by regulation to be reported.

POLICY
Section 172(1)(c) requires the employer to notify the Board of any accident that involved the major release of a hazardous substance.

A major release does not only mean a considerable quantity, or the peculiar nature of the release, such as a gas or volatile liquid, but, more importantly, the seriousness of the risk to the health of workers. Factors that determine the seriousness of the risk include the degree of preparedness of the employer to respond to the release, the necessity of working in close proximity to the release, the atmospheric conditions at the time of the release and the nature of the substance.

As a general guideline, a report would be expected when:

  • The incident resulted in an injury that required immediate medical attention beyond the level of service provided by a first aid attendant, or injuries to several workers that require first aid.
  • The incident resulted in a situation of continuing danger to workers, such as when the release of a chemical cannot be readily or quickly cleaned up.

EFFECTIVE DATE: April 1, 2001
AUTHORITY: s.172(1), Workers Compensation Act
CROSS REFERENCES:  
HISTORY:

Housekeeping change to Background section to reflect amendments to the Act, effective January 1, 2016.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Replaces Policy No. 6.02(c) of the Prevention Division Policy and Procedure Manual

APPLICATION: This Item results from the 2000/2001 "editorial" consolidation of all prevention policies into the Prevention Manual. The POLICY in this Item merely continues the substantive requirements of Policy No. 6.02(c), as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 6.02(c) was issued.

Policy Item: D10-175-1
RE: Preliminary Incident Investigation, Report and Follow-Up Action

BACKGROUND
1. Explanatory Notes

Section 175 of the Act sets out the requirements for an employer to conduct a preliminary investigation of a section 173 incident within 48 hours of the incident. Depending on the complexity of the investigation, it may be possible for an employer to complete its section 176 full investigation obligations within 48 hours of the incident. Direction on these situations is set out in Policy D10-176-1 (Full Incident Investigation, Report and Follow-Up Action).

Section 174 of the Act sets out how worker and employer representatives may participate in investigations.

Note: In some cases, the Regulation provides specific and exclusive direction to investigate and report accidents or incidents in accordance with Part 3 of the Regulation.

2. Legal Authority

Section 127, Act:

A joint committee for a workplace must be established in accordance with the following:

(b) it must consist of worker representatives and employer representatives;

Section 130, Act:

A joint committee has the following duties and functions in relation to its workplace:

(h) to ensure that accident investigations and regular inspections are carried out as required by this Part and the regulations;

(i) to participate in inspections, investigations and inquiries as provided in this Part and the regulations;

Section 172, Act:

(1) An employer must immediately notify the Board of the occurrence of any accident that

(a) resulted in serious injury to or the death of a worker,

(b) involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation,

(c) involved the major release of a hazardous substance, or

(d) was an incident required by regulation to be reported.

(2) Except as otherwise directed by an officer of the Board or a peace officer, a person must not disturb the scene of an accident that is reportable under subsection (1) except so far as is necessary to

(a) attend to persons injured or killed,

(b) prevent further injuries or death, or

(c) protect property that is endangered as a result of the accident.

Section 173, Act:

(1) An employer must conduct a preliminary investigation under section 175 and a full investigation under section 176 respecting any accident or other incident that

(a) is required to be reported by section 172,

(b) resulted in injury to a worker requiring medical treatment,

(c) did not involve injury to a worker, or involved only minor injury not requiring medical treatment, but had a potential for causing serious injury to a worker, or

(d) was an incident required by regulation to be investigated.

(2) Subsection (1) does not apply in the case of a vehicle accident occurring on a public street or highway.

Section 174, Act:

(1) An investigation required under this Division must be carried out by persons knowledgeable about the type of work involved and, if they are reasonably available, with the participation of the employer or a representative of the employer and a worker representative.

(1.1) For the purposes of subsection (1), the participation of the employer or a representative of the employer and a worker representative includes, but is not limited to, the following activities:

(a) viewing the scene of the incident with the persons carrying out the investigation;

(b) providing advice to the persons carrying out the investigation respecting the methods used to carry out the investigation, the scope of the investigation, or any other aspect of the investigation;

(c) other activities, as prescribed by the Board.

(3) The employer must make every reasonable effort to have available for interview by a person conducting the investigation, or by an officer, all witnesses to the incident and any other persons whose presence might be necessary for a proper investigation of the incident.

(4) The employer must record the names, addresses and telephone numbers of persons referred to in subsection (3).

Section 175, Act:

(1) An employer must, immediately after the occurrence of an incident described in section 173, undertake a preliminary investigation to, as far as possible,

(a) identify any unsafe conditions, acts or procedures that significantly contributed to the incident, and

(b) if unsafe conditions, acts or procedures are identified under paragraph (a) of this subsection, determine the corrective action necessary to prevent, during a full investigation under section 176, the recurrence of similar incidents.

(2) The employer must ensure that a report of the preliminary investigation is

(a) prepared in accordance with the policies of the board of directors,

(b) completed within 48 hours of the occurrence of the incident,

(c) provided to the Board on request of the Board, and

(d) as soon as practicable after the report is completed, either

(i) provided to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, posted at the workplace.

(3) Following the preliminary investigation, the employer must, without undue delay, undertake any corrective action determined to be necessary under subsection (1)(b).

(4) If the employer takes corrective action under subsection (3), the employer, as soon as practicable, must

(a) prepare a report of the action taken, and

(b) either

(i) provide the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post the report at the workplace.

3. Interpretation Act

Section 25:

(2) If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.

(3) If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.

Section 29:

In an enactment:

"holiday" includes

(a) Sunday, Christmas Day, Good Friday and Easter Monday,

(b) Canada Day, Victoria Day, British Columbia Day, Labour Day, Remembrance Day, Family Day and New Year's Day,

(c) December 26, and

(d) a day set by the Parliament of Canada or by the Legislature, or appointed by proclamation of the Governor General or the Lieutenant Governor, to be observed as a day of general prayer or mourning, a day of public rejoicing or thanksgiving, a day for celebrating the birthday of the reigning Sovereign, or as a public holiday;

POLICY
1. Investigation Participants

Section 174 requires a preliminary investigation to be carried out by persons knowledgeable about the type of work involved. It also requires the participation of the employer or employer representative, and a worker representative, if they are reasonably available.

2. Incidents Requiring a Preliminary Investigation

Unless the accident or incident is a vehicle accident occurring on a public street or highway, section 175(1) requires an employer to undertake a preliminary investigation immediately after the occurrence of any of the following:

  • an accident that resulted in serious injury to or the death of a worker;
  • an accident that involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation;
  • an accident that involved the major release of a hazardous substance;
  • an accident that involved a fire or explosion that had a potential for causing serious injury to a worker;
  • a blasting accident that causes personal injury;
  • a dangerous incident involving explosives other than a blasting accident, regardless of whether it caused personal injury;
  • a diving incident, as defined in the Regulation;
  • any accident or other incident that resulted in injury to a worker requiring medical treatment; and
  • any accident or other incident that did not involve injury to a worker, or involved only minor injury not requiring medical treatment, but had a potential for causing serious injury to a worker.

3. Identifying Unsafe Conditions, Acts or Procedures

The Act requires employers to immediately undertake a preliminary investigation to identify any unsafe conditions, acts or procedures as far as possible, in order to ensure that work can be continued or resumed safely during the interim period between the incident and the conclusion of the full investigation.

What constitutes "as far as possible" during the preliminary investigation may be limited due to circumstances of the accident or incident that are outside of the employer's control.

It is not possible to list all the limitations on what may inhibit an employer's ability to identify unsafe conditions, acts or procedures. However, 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 section 173 incident, the employer should include these limitations in its preliminary investigation report.

The following are some of the circumstances in which WorkSafeBC may consider that it is not possible for an employer to identify all the unsafe conditions, acts or procedures that significantly contributed to the section 173 incident. This is not an exhaustive list:

  • the persons injured in the incident are not available (e.g. unconscious in hospital);
  • there were no witnesses to the incident;
  • the employer is prohibited from entering the workplace or part of the workplace, because WorkSafeBC, the police, or other agencies are attending at the scene of the incident and conducting their own investigations;
  • WorkSafeBC has issued an order to stop use under section 190 or stop work under section 191, and the exceptions for permitting a worker to enter the workplace or part of the workplace that is the subject of the order cannot be met; or
  • WorkSafeBC has taken documents, equipment, or other items, which the employer also needs to investigate.

4. Determining Interim Corrective Action

As part of the preliminary investigation, the Act requires the employer to determine the corrective action necessary to prevent a recurrence of the section 173 incident during the period of the full investigation. This means the employer must identify interim corrective actions that can be undertaken between the time of the section 173 incident, and the deadline plus any extensions, for submitting the full investigation report under section 176 (see Policy D10-176-1).

Employers must take all actions reasonably necessary to prevent a recurrence during the interim period. 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 section 173 incident, the interim corrective action may include a full or partial shutdown of a worksite, removing equipment, or reassigning workers.

5. Elements of Preliminary Investigation Reports

An employer's preliminary investigation report of the section 173 incident must contain the following elements, as far as possible:

(a) the place, date and time of the incident;

(b) the names and job titles of persons injured or killed in the incident;

(c) the names and job titles of witnesses;

(d) the names and job titles of any other persons whose presence might be necessary for a proper investigation of the incident;

(e) a statement of the sequence of events that preceded the incident;

(f) identification of any unsafe conditions, acts or procedures that significantly contributed to the incident;

(g) employer identification and contact information;

(h) a brief description of the incident;

(i) the names and job titles of all persons set out in section 174(1) of the Act, who carried out or participated in the preliminary investigation of the incident;

(j) interim corrective actions the employer has determined to prevent the recurrence of similar incidents, for the interim period between the occurrence of the incident and the submission of the full investigation report;

(k) information about what interim corrective action has been taken and when any corrective actions not yet implemented will be taken; and

(l) the circumstances of the accident or incident that preclude the employer from addressing a particular element of the above-listed elements during the preliminary investigation period.

Blasting and diving have industry-specific reporting requirements under the Regulation, in addition to those under sections 175 and 176 of the Act. An employer may combine one or more reports as long as all the applicable requirements, including those regarding timing, are met.

Section 174(3) of the Act requires the employer to record the addresses and telephone numbers of witnesses and any other persons whose presence might be necessary for a proper investigation of the incident. This does not form part of the preliminary investigation report.

6. Producing the Preliminary Investigation Report

The Act requires an employer to provide its preliminary investigation report to WorkSafeBC upon request.

The Act also requires an employer to provide a copy of the incident investigation report to the joint committee or worker health and safety representative, as applicable, and if there is no joint committee or worker health and safety representative, to post the report at the workplace. The Act requires this be done as soon as practicable after the report is completed.

7. Implementing Corrective Action

While an employer is undertaking the full investigation report due under section 176 (see Policy D10-176-1), the employer must also, without undue delay, take the corrective action it had determined was necessary to prevent a recurrence of similar section 173 incidents during the full investigation period. This interim corrective action must remain in place until the employer has:

(a) undertaken any further corrective action identified in the full investigation as necessary to prevent the recurrence of similar incidents following the full investigation; or

(b) determined that the interim corrective action is sufficient to prevent the recurrence of similar incidents following the full investigation.

The employer may modify the interim corrective action during the full investigation period, if it determines that the modified interim corrective action is more effective or as effective as the interim corrective action originally undertaken.

8. Interim Corrective Action Reporting

WorkSafeBC may request a copy of the interim corrective action report that the employer prepares following the preliminary investigation.

In the interim corrective action report, the employer must include:

(a) the unsafe conditions, acts or procedures that made the interim corrective action necessary;

(b) the interim corrective action taken to prevent the recurrence of similar incidents during the full investigation period;

(c) employer identification information;

(d) the names and job titles of the persons responsible for implementing the interim corrective action; and

(e) the date the interim corrective action was taken.

Where the employer completes the full investigation within 48 hours of the section 173 incident and determines the corrective action necessary to prevent the recurrence of similar incidents, the employer may prepare a single corrective action report to provide to the joint committee or worker health and safety representative, as applicable, or if there is no joint committee or worker health and safety representative, to post at the workplace. This would meet its corrective action reporting requirements for both sections 175 and 176 of the Act.

PRACTICE
See:

  • OHS Guideline G-D10-172-1, WorkSafeBC Notification of Serious Injuries.

EFFECTIVE DATE: January 1, 2016
AUTHORITY: s.175, Workers Compensation Act
CROSS REFERENCES: See also ss. 178, 179(3)(f) and (g), 187(2) and 187, Workers Compensation Act;
Accident Reporting and Investigation — Immediate Notice of Certain Accidents (Major Release of Hazardous Substance) (Item D10-172-1),
Accident Reporting and Investigation — Full Incident Investigation, Report and Follow-Up Action (Item D10-176-1).
HISTORY: Amended effective January 1, 2016 to reflect stakeholder consultation on interim polices and to implement changes resulting from the Workers Compensation Amendment Act (No. 2), 2015, which received Royal Assent on November 17, 2015.
This Item was originally developed to implement the Workers Compensation Amendment Act, 2015, which received Royal Assent on May 14, 2015.

APPLICATION: This policy applies to all accidents and incidents that occur on and after January 1, 2016.

Policy Item D10-176-1
RE: Full Incident Investigation, Report and Follow-Up Action

BACKGROUND
1. Explanatory Notes

Section 176 of the Act sets out the requirements for an employer to conduct a full investigation immediately after completing a section 175 preliminary investigation of a section 173 incident. Depending on the complexity of the investigation, it may be possible for an employer to complete its section 176 full investigation obligations within 48 hours of the incident.

Section 174 of the Act sets out how worker and employer representatives may participate in investigations.

Note: In some cases, the Regulation provides specific and exclusive direction to investigate and report accidents or incidents in accordance with Part 3 of the Regulation.

2. Legal Authority

Section 127, Act:

A joint committee for a workplace must be established in accordance with the following:

(b) it must consist of worker representatives and employer representatives;

Section 130, Act:

A joint committee has the following duties and functions in relation to its workplace:

(h) to ensure that accident investigations and regular inspections are carried out as required by this Part and the regulations;

(i) to participate in inspections, investigations and inquiries as provided in this Part and the regulations;

Section 172, Act:

(1) An employer must immediately notify the Board of the occurrence of any accident that

(a) resulted in serious injury to or the death of a worker,

(b) involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation,

(c) involved the major release of a hazardous substance, or

(d) was an incident required by regulation to be reported.

(2) Except as otherwise directed by an officer of the Board or a peace officer, a person must not disturb the scene of an accident that is reportable under subsection (1) except so far as is necessary to

(a) attend to persons injured or killed,

(b) prevent further injuries or death, or

(c) protect property that is endangered as a result of the accident.

Section 173, Act:

(1) An employer must conduct a preliminary investigation under section 175 and a full investigation under section 176 respecting any accident or other incident that

(a) is required to be reported by section 172,

(b) resulted in injury to a worker requiring medical treatment,

(c) did not involve injury to a worker, or involved only minor injury not requiring medical treatment, but had a potential for causing serious injury to a worker, or

(d) was an incident required by regulation to be investigated.

(2) Subsection (1) does not apply in the case of a vehicle accident occurring on a public street or highway.

Section 174, Act:

(1) An investigation required under this Division must be carried out by persons knowledgeable about the type of work involved and, if they are reasonably available, with the participation of the employer or a representative of the employer and a worker representative.

(1.1) For the purposes of subsection (1), the participation of the employer or a representative of the employer and a worker representative includes, but is not limited to, the following activities:

(a) viewing the scene of the incident with the persons carrying out the investigation;

(b) providing advice to the persons carrying out the investigation respecting the methods used to carry out the investigation, the scope of the investigation, or any other aspect of the investigation;

(c) other activities, as prescribed by the Board.

(3) The employer must make every reasonable effort to have available for interview by a person conducting the investigation, or by an officer, all witnesses to the incident and any other persons whose presence might be necessary for a proper investigation of the incident.

(4) The employer must record the names, addresses and telephone numbers of persons referred to in subsection (3).

Section 176, Act:

(1) An employer must, immediately after completing a preliminary investigation under section 175, undertake a full investigation to, as far as possible,

(a) determine the cause or causes of the incident investigated under section 175,

(b) identify any unsafe conditions, acts or procedures that significantly contributed to the incident, and

(c) if unsafe conditions, acts or procedures are identified under paragraph (b) of this subsection, determine the corrective action necessary to prevent the recurrence of similar incidents.

(2) The employer must ensure that a report of the full investigation is

(a) prepared in accordance with the policies of the board of directors,

(b) submitted to the Board within 30 days of the occurrence of the incident, and

(c) within 30 days of the occurrence of the incident, either

(i) provided to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, posted at the workplace.

(3) The Board may extend the time period, as the Board considers appropriate, for submitting a report under subsection (2)(b) or (c).

(4) Following the full investigation, the employer must, without undue delay, undertake any corrective action determined to be necessary under subsection (1)(c).

(5) If the employer takes corrective action under subsection (4), the employer, as soon as practicable, must

(a) prepare a report of the action taken, and

(b) either

(i) provide the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post the report at the workplace.

POLICY
1. Determining the Cause or Causes of the Incident

Employers must determine the cause or causes of the section 173 incident. "Determining the cause or causes" means analyzing the facts and circumstances of the incident to identify the underlying factors that led to the incident. This includes identifying the underlying factors that made the unsafe conditions, acts or procedures possible, and identifying health and safety deficiencies.

2. Elements of Full Investigation Reports

An employer's full investigation report of the section 173 incident must contain the following elements, as far as possible:

(a) Elements (a) through (f) of Item D10-175-1, Preliminary Incident Investigation, Report and Follow-Up Action, including any updates available following the preliminary investigation period;

(b) the employer's legal name, name it is doing business under, address, contact number, email address, and WorkSafeBC account number;

(c) the identification and contact information of other relevant workplace parties such as an owner, prime contractor, other persons actively involved in the accident or incident, or persons implementing the corrective action following the full investigation;

(d) determination of the cause or causes of the incident;

(e) a full description of the incident;

(f) the names and job titles of all persons set out in section 174(1) of the Act, who carried out or participated in the preliminary and full investigation of the incident;

(g) all corrective actions the employer has determined are necessary to prevent the recurrence of similar incidents; and

(h) information about what corrective action has been taken and when any corrective actions not yet implemented will be taken.

Depending on the complexity of the accident or incident investigation, an employer may complete its full investigation report within 48 hours. This would meet its requirements for section 175(1) of the Act. The full investigation report must then be submitted to the joint committee or worker health and safety representative, or if there is no joint committee or worker health and safety representative, posted at the workplace, as soon as practicable, to meet its requirements for section 175(2); and to WorkSafeBC within 30 days of the incident, to meet the full investigation reporting requirements of section 176. The corrective action reporting requirements are addressed in section 5 of this policy.

Blasting and diving have industry-specific reporting requirements under the Regulation, in addition to those under sections 175 and 176 of the Act. An employer may combine one or more reports as long as all the applicable requirements, including those regarding timing, are met.

Section 174(3) of the Act requires the employer to record the addresses and telephone numbers of witnesses and any other persons whose presence might be necessary for a proper investigation of the incident. This does not form part of the full investigation report.

3. Producing the Full Investigation Report

The Act requires an employer to submit its full investigation report to WorkSafeBC and to the joint committee or worker health and safety representative, as applicable or if there is no joint committee or worker health and safety representative, to post the report at the workplace.

4. Extensions for Submitting the Full Investigation Report

The Act requires employers to submit their full investigation reports within 30 days of the incident. Where an employer makes a request, WorkSafeBC may grant one or more extensions for submitting the full investigation report, if the employer identifies delays in its ability to complete its full investigation due to factors outside its control. Where WorkSafeBC grants an extension, employers should notify their joint committee or worker representative of the details of the extension.

It is not possible to list all of the situations where WorkSafeBC may consider it appropriate to grant extensions, but the following are some examples:

  • where the remoteness of the location of the accident or incident requiring investigation creates delays in an employer's investigation;
  • where the technical aspects of the investigation cannot be evaluated within 30 days of the accident or incident;
  • where third party reports related to the full investigation are pending;
  • if an investigation by WorkSafeBC, the police, or another agency restricts the employer's ability to investigate the cause or causes of the accident or incident;
  • where an employer does not know about an accident or incident that resulted in injury to a worker, because there is a delay in the worker seeking the related medical treatment; and
  • any other circumstances where WorkSafeBC considers it reasonable.

5. Corrective Action Reporting Following the Full Investigation

WorkSafeBC may request a copy of the corrective action report that the employer prepares following the full investigation.

In the corrective action report prepared following the full investigation, the employer must include:

(a) the unsafe conditions, acts or procedures that made the corrective action necessary;

(b) the corrective action taken to prevent the recurrence of similar incidents following the full investigation;

(c) employer identification information;

(d) the names and job titles of the persons responsible for implementing the corrective action following the full investigation; and

(e) the date the corrective action was taken.

Where the employer completes the full investigation within 48 hours of the section 173 incident and determines the corrective action necessary to prevent the recurrence of similar incidents, the employer may prepare a single corrective action report to provide to the joint committee or worker health and safety representative, as applicable, or if there is no joint committee or worker health and safety representative, to post at the workplace. This would meet its corrective action reporting requirements for both sections 175 and 176 of the Act.

PRACTICE
See:

  • OHS Guideline G-D10-172-1, WorkSafeBC Notification of Serious Injuries.

EFFECTIVE DATE: January 1, 2016
AUTHORITY: s.176, Workers Compensation Act
CROSS REFERENCES: See also s. 187, Workers Compensation Act;
Accident Reporting and Investigation — Immediate Notice of Certain Accidents (Major Release of Hazardous Substance) (Item D10-172-1),
Accident Reporting and Investigation — Preliminary Incident Investigation, Report and Follow-Up Action (Item D10-175-1).
HISTORY: Amended effective January 1, 2016 to reflect stakeholder consultation on interim polices and to implement changes resulting from the Workers Compensation Amendment Act (No. 2), 2015, which received Royal Assent on November 17, 2015.
This Item was originally developed to implement the Workers Compensation Amendment Act, 2015, which received Royal Assent on May 14, 2015.
APPLICATION: This policy applies to all accidents and incidents that occur on and after January 1, 2016.

Policies Workers Compensation Act Part 3 Division 12 - Enforcement

Policy Item D12-186.1-1
RE: OHS Compliance Agreements

BACKGROUND
1. Explanatory Notes

Instead of issuing an order, WorkSafeBC may, in certain circumstances, enter into a compliance agreement in which an employer voluntarily agrees to correct OHS violations and report back to WorkSafeBC by a specific date. This policy outlines when WorkSafeBC can enter into or cancel a compliance agreement.

Compliance agreements are offered at WorkSafeBC's discretion, within the limits of the Act and this policy. WorkSafeBC will only enter into a compliance agreement if WorkSafeBC believes that the employer will likely fulfill its obligations under the agreement.

Compliance agreements allow WorkSafeBC to engage with a responsive employer to correct non-high risk violations and improve workplace safety. While the compliance agreement is in effect, WorkSafeBC will not issue an order for any violations specifically described in the compliance agreement.

If a compliance agreement is rescinded (in other words, cancelled), WorkSafeBC will, except in exceptional circumstances, write orders for any outstanding OHS violations specifically described in the agreement.

For ease of reference, this policy incorporates the requirements of the Act along with the policy. All section references in this policy refer to the Act.

2. The Act

Section 186.1

(1) The Board may enter into an agreement with an employer if the Board considers that

(a) the employer has contravened, or failed to comply with, a provision of this Part or the regulations,

(b) the employer has not contravened, or not failed to comply with, the same provision described in paragraph (a) within the 12 month period immediately preceding the contravention or failure as set out in that paragraph,

(c) the health or safety of workers, for which the employer has responsibilities under this Act, is not at immediate risk, and

(d) entering into the agreement is appropriate in the circumstances.

(2) [A compliance agreement]:

(a) must be in writing,

(b) must describe one or more actions the employer agrees to take, which may include one or more expenditures the employer agrees to make, to remedy the employer's contravention or failure as set out in subsection (1)(a) or the adverse effects that resulted from that contravention or failure,

(c) must set out the time frame within which the employer, with respect to each action described under paragraph (b) of this subsection, agrees to

(i) take the action, and

(ii) report to the Board on the action taken,

(d) must specify the date the agreement ends,

(e) must set out the required manner, form and content of the report referred to in paragraph (c)(ii) of this subsection, and

(f) may, subject to subsection (4), be amended if agreed to by the Board and the employer.

(3) The employer must, as soon as practicable after

(a) entering into [a compliance agreement]

(i) provide a copy of the agreement to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post a copy of the agreement at the workplace, and

(b) reporting to the Board under subsection (2)(c)(ii),

(i) provide a copy of the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post a copy of the report at the workplace.

(4) The Board must rescind [a compliance agreement] if the Board considers that

(a) the employer has failed to

(i) take any of the actions described under subsection (2)(b) within the time frame set out for the action in subsection (2)(c)(i), or

(ii) report to the Board within the time frame set out in subsection (2)(c)(ii),

(b) the employer intentionally provided false or misleading information in relation to the agreement, or

(c) the health or safety of workers is at immediate risk, based on information received by the Board after the agreement was entered into.

(5) The Board may rescind [a compliance agreement] if the Board considers that the agreement no longer adequately protects the health or safety of workers.

(6) A rescission of an agreement under subsection (4) or (5) takes effect immediately despite the employer not having received notice.

(7) As soon as practicable after rescinding an agreement under subsection (4) or (5), the Board must

(a) make reasonable efforts to provide verbal notice of the rescission to the employer, and

(b) send written notice of the rescission to the employer.

(8) Section 221 (4) to (6) does not apply to the sending of written notice under subsection (7)(b).

(9) The employer must, as soon as practicable after receiving written notice under subsection (7)(b),

(a) provide a copy of the written notice to the joint committee or worker health and safety representative, as applicable, or

(b) if there is no joint committee or worker health and safety representative, post a copy of the written notice at the workplace.

POLICY
1. Entering into a compliance agreement

WorkSafeBC enters into compliance agreements at its own discretion, after considering the likelihood of an incident or exposure occurring because of the violation and the likely seriousness of any injury or illness that could result.

WorkSafeBC will not enter into a compliance agreement regarding a violation if:

(a) the violation puts worker health or safety at immediate risk (in other words, creates a likelihood of injury, illness or death if not immediately remedied) [s.186.1(1)(c)];

(b) the violation is high risk as defined in policy D12-196-2;

(c) the employer has contravened, within the last 12 months, the same provision of the Act or regulations [s.186.1(1)(b)]; or

(d) a previous compliance agreement with the employer was cancelled in the last 3 years due to the fault of the employer.

WorkSafeBC will only enter into a compliance agreement if WorkSafeBC believes that the employer will likely fulfill its obligations under the agreement. WorkSafeBC will consider various factors to determine this, which will include:

(e) the compliance history of the employer;

(f) the effectiveness of the employer's overall approach to managing health and safety;

(g) the employer's willingness to enter into the agreement; and

(h) information provided by workers and union representatives.

While the compliance agreement is in effect, WorkSafeBC will not issue an order for any violation specifically described in the agreement. If a compliance agreement is satisfactorily completed by an employer, WorkSafeBC will not retroactively issue an order for any violation specifically described in the agreement.

2. Requirements of a compliance agreement

Employers enter into compliance agreements voluntarily. Compliance agreements require the signature of an appropriate employer representative who is authorized to enter into agreements on behalf of the employer.

Section 186.1(2) requires that a compliance agreement must:

(a) be in writing;

(b) describe the corrective actions the employer agrees to take; and

(c) provide the date:

(i) when the employer must complete its corrective action ("action deadline");

(ii) when the employer must report back to WorkSafeBC ("report deadline"); and

(iii) when the agreement ends.

One compliance agreement may address multiple workplaces of an employer.

3. Amending an existing compliance agreement

A compliance agreement can be amended if WorkSafeBC and the employer agree to the amendments in writing. A compliance agreement cannot be amended after it has ended or been cancelled.

When considering whether to agree to amend an agreement, WorkSafeBC will consider the employer's progress towards correcting the violations set out in the compliance agreement, as well as the factors set out under 1(e) to (h) above.

4. Cancelling a compliance agreement

WorkSafeBC will cancel a compliance agreement if the agreement no longer adequately protects the health or safety of the workers.

Section 186.1(4) requires that a compliance agreement be cancelled if:

(a) the employer fails to complete its required actions by the action deadline;

(b) the employer fails to meet its reporting obligations by the report deadline;

(c) the employer intentionally provides false or misleading information in relation to the agreement; or

(d) the health or safety of workers is at immediate risk based on information received by WorkSafeBC after the agreement was entered into (in other words, there is a likelihood of injury, illness or death if the situation is not immediately remedied).

Section 186.1(7) requires WorkSafeBC to send written notice to the employer of a cancellation and make reasonable efforts to provide verbal notice. However, section 186.1(6) states that the cancellation of a compliance agreement takes effect immediately, whether or not the employer receives written or verbal notice.

If a compliance agreement is cancelled, WorkSafeBC will, except in exceptional circumstances, write orders for any outstanding OHS violations specifically described in the agreement.

5. Posting requirements

All compliance agreements will include a term that requires employers to post in the workplace copies of:

(a) compliance agreements;

(b) amended compliance agreements;

(c) compliance agreement reports; and

(d) notices of cancellation of compliance agreements.

Compliance agreements will also include a term that requires the above documents to be provided to the joint committee or worker health and safety representative, if applicable, and to the union if the compliance agreement relates to a workplace where workers of the employer are represented by a union.


EFFECTIVE DATE: January 1, 2016
AUTHORITY: s. 186.1, Workers Compensation Act
CROSS REFERENCES: See also Policy D12-187-1 (Orders)
HISTORY: Amended effective January 1, 2016 to change posting requirements and remove factor (i) in section 1 and insert it at the beginning of the section instead. The paragraph order in the Explanatory Notes section was also changed.
APPLICATION: This policy is effective January 1, 2016 and applies to all inspections occurring on and after January 1, 2016.

Policy Item D12-187-1
RE: OHS Compliance Orders

BACKGROUND
1. Explanatory Notes

Section 187(1) provides a broad general authority for the Board to make orders for carrying out matters and things regulated, controlled or required by Part 3 or the regulations. This includes authority to make orders in a variety of specific situations set out in section 187(2).

This policy addresses orders directed towards remedying an occupational health and safety ("OHS") violation. An OHS compliance order is WorkSafeBC's primary tool to remedy non-compliance with health and safety requirements in the Act and Regulation.

Powers to make orders are also found in other sections of the Act. For example, section 196 provides that administrative penalties may be imposed by order. This policy does not address those types of orders.

Failure to comply with an order may be addressed by administrative penalties, injunctions, or prosecution.

2. The Act

Section 187:

(1) The Board may make orders for the carrying out of any matter or thing regulated, controlled or required by this Part or the regulations, and may require that the order be carried out immediately or within the time specified in the order.

(2) Without limiting subsection (1), the authority under that subsection includes authority to make orders as follows:

(a) establishing standards that must be met and means and requirements that must be adopted in any work or workplace for the prevention of work related accidents, injuries and illnesses;

(b) requiring a person to take measures to ensure compliance with this Act and the regulations or specifying measures that a person must take in order to ensure compliance with this Act and the regulations;

(c) requiring an employer to provide in accordance with the order a medical monitoring program as referred to in section 161;

(d) requiring an employer, at the employer's expense, to obtain test or assessment results respecting any thing or procedure in or about a workplace, in accordance with any requirements specified by the Board, and to provide that information to the Board;

(e) requiring an employer to install and maintain first aid equipment and service in accordance with the order;

(f) requiring a person to post or attach a copy of the order, or other information, as directed by the order or by an officer;

(g) establishing requirements respecting the form and use of reports, certificates, declarations and other records that may be authorized or required under this Part;

(h) doing anything that is contemplated by this Part to be done by order;

(i) doing any other thing that the Board considers necessary for the prevention of work related accidents, injuries and illnesses.

(3) The authority to make orders under this section does not limit and is not limited by the authority to make orders under another provision of this Part.

Section 188:

(1) An order may be made orally or in writing but, if it is made orally, must be confirmed in writing as soon as is reasonably practicable.

(2) An order may be made applicable to any person or category of persons and may include terms and conditions the Board considers appropriate.

(3) If an order relates to a complaint made by a person to the Board or an officer, a copy of the order must be given to that person.

(4) An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.

3. The Regulation
Section 2.4:

Every person to whom an order or directive is issued by the Board must comply promptly or by the time set out in the order or directive.

POLICY
Workplace parties must comply with the Act and OHSR. An OHS Compliance order does not initiate the obligation to comply with the Act and regulations. It is not sufficient simply to obey a WorkSafeBC order after a violation, injury or disease has occurred.

When identifying violations at a workplace, WorkSafeBC will ordinarily write orders.

When a particular safety issue involves more than one employer or worker, WorkSafeBC will determine which workplace parties should be the recipients of orders.

In some cases, where there are a number of violations, WorkSafeBC may write orders to address the underlying health and safety issues without writing an order relating to each violation.

PRACTICE
When WorkSafeBC identifies a violation but does not write an order, the circumstances should be documented in the inspection notes of the inspection report and the relevant regulations referenced for future tracking.


EFFECTIVE DATE: March 1, 2013
AUTHORITY: s. 187, Workers Compensation Act
CROSS REFERENCES: s. 188, Workers Compensation Act, s. 2.4 Regulation
HISTORY: Amended effective March 1, 2013 to confirm WorkSafeBC's discretion regarding writing orders and to align policy with the practice of WorkSafeBC.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999.
Consequential changes subsequently made to the restatement of section 187 to reflect the Workers Compensation Amendment Act, 2002 and to the Explanatory Notes and the cross-references to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective December 31, 2003, this policy incorporates portions of Procedure No. 1.3.3-1 "Issuing Inspection Reports" of the former Prevention Division Policy and Procedure Manual.
APPLICATION:

Policy Item D12-188-1
RE: Orders – Contents and Process

BACKGROUND
1. Explanatory Notes

Section 188 sets out the contents and process requirements in relation to orders. Subject to the terms of the relevant sections, these requirements apply to all the powers to issue orders under Part 3. They are not limited to orders issued under the Board's general authority in section 187.

2. The Act

Section 188:

(1) An order may be made orally or in writing but, if it is made orally, must be confirmed in writing as soon as is reasonably practicable.

(2) An order may be made applicable to any person or category of persons and may include terms and conditions the board considers appropriate.

(3) If an order relates to a complaint made by a person to the board or an officer, a copy of the order must be given to that person.

(4) An officer of the board may exercise the authority of the board to make orders under this Part, subject to any restrictions or conditions established by the board.

POLICY
After an inspection, the Board officer must complete a report, but its completion may be deferred until any required investigation is completed. This report may contain one or more orders, or no orders, depending on whether violations of the regulations were observed and the number and type of any observed violations. If an officer has observed no violations, this will be stated in the report.

Where possible, the officer will hold a post-inspection conference with management having responsibility and authority to comply with the orders.

The worker representative who accompanied the inspection will be invited to the conference. If the worker representative normally designated for this purpose has been unable to attend the inspection, the designated worker representative will be invited as well, if now available. Other parties involved may also be invited at the discretion of the officer. The purpose of the conference is to ensure that the parties understand the orders.


EFFECTIVE DATE: October 1, 1999
AUTHORITY: s. 188, Workers Compensation Act
CROSS REFERENCES: s. 187, Workers Compensation Act
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D12-191-1
RE: Stop Work Orders

BACKGROUND
1. Explanatory Notes

WorkSafeBC issues stop work orders to protect the health and safety of workers when they will be at risk until the employer complies with the Act and Regulation. Stop work orders are a compliance tool, similar to OHS Compliance Orders.

WorkSafeBC has a number of tools to address non-compliance with the Regulation and Part 3 of the Act. If these tools effectively protect workers in the circumstances, then a stop work order will not be necessary.

The Act provides that a stop work order may be issued when:

(a) there are reasonable grounds to believe that there is a high risk of serious injury, serious illness or death at a workplace, or

(b) an employer

(i) violates a section of the Act or Regulation;

(ii) within the last 12 months, had previously violated the same section and failed to comply with the resulting order; and

(iii) there are reasonable grounds to believe that there is a risk of serious injury, serious illness or death.

The Act also provides that, if a stop work order is issued, WorkSafeBC may also stop work at other or all workplaces of an employer (a "stop operations order") if WorkSafeBC has reasonable grounds to believe that:

(a) the same or similar unsafe working or workplace conditions exist, or

(b) would exist,

at the other workplaces.

This policy provides guidance regarding:

(a) when to consider a stop work order,

(b) when a stop work order is appropriate,

(c) the scope of a stop work order (area covered),

(d) the use of a stop operations order, and

(e) the duration of a stop work order.

2. The Act

Section 191:

(1) The Board, in accordance with subsection (1.1), may order that

(a) work at a workplace or any part of a workplace stop until the order to stop work is cancelled by the Board, and

(b) if the Board considers this is necessary, that the workplace or any part of the workplace be cleared of persons and isolated by barricades, fencing or any other means suitable to prevent access to the area until the danger is removed.

(1.1) The Board may make an order under subsection (1)

(a) if the Board has reasonable grounds for believing there is a high risk of serious injury, serious illness or death to a worker at the workplace, or

(b) if

(i) an employer

(A) has failed to comply with a provision of this Part or the regulations, and

(B) within the 12 month period immediately preceding the failure to comply as set out in clause (A), has failed to comply with

(I) the same provision described in clause (A), and

(II) an order respecting the failure to comply described in subclause (I), and

(ii) the Board has reasonable grounds for believing there is a risk of serious injury, serious illness or death to a worker at the workplace.

(1.2) If the Board makes an order under subsection (1), the Board, with respect to another workplace or any part of another workplace whose employer is the same as the employer at the workplace or any part of the workplace in respect of which the order under subsection (1) was made, may make an order, in accordance with subsections (1.3) and (1.4),

(a) that

(i) work at the other workplace or any part of the other workplace stop until the order to stop work is cancelled by the Board, and

(ii) if the Board considers this is necessary, the other workplace or any part of the other workplace be cleared of persons and isolated by barricades, fencing or any other means suitable to prevent access to the area until the danger is removed, or

(b) prohibiting the employer from starting work at the other workplace or any part of the other workplace.

(1.3) The Board may make an order under subsection (1.2) if the Board has reasonable grounds for believing,

(a) with respect to an order made under subsection (1.2)(a), that, at the other workplace or any part of the other workplace in respect of which that order is made, the same or similar unsafe working or workplace conditions exist as at the workplace or any part of the workplace in respect of which the order under subsection (1) was made, or

(b) with respect to an order made under subsection (1.2)(b), that, at the other workplace or any part of the other workplace in respect of which that order is made, the same or similar unsafe working or workplace conditions would exist as at the workplace or any part of the workplace in respect of which the order under subsection (1) was made.

(1.4) In making an order under subsection (1.2), the Board is not required to specify the address of the other workplace or any part of the other workplace in respect of which the order is made.

(2) If an order is made under subsection (1)(b), or (1.2)(a)(ii), an employer, supervisor or other person must not require or permit a worker to enter the workplace or part of the workplace that is the subject of the order, except for the purpose of doing work that is necessary or required to remove the danger or the hazard and only if the worker

(a) is protected from the danger or the hazard, or

(b) is qualified and properly instructed in how to remedy the unsafe condition with minimum risk to the worker's own health or safety.

(3) Despite section 188(1), an order under this section

(a) may only be made in writing, and

(b) must be served on the employer, supervisor or other person having apparent supervision of the work or the workplace.

(4) An order under this section expires 72 hours after it is made, unless the order has been confirmed in writing by the board.

POLICY
A. When to Consider a Stop Work Order

The Act says that WorkSafeBC may consider a stop work order when:

(a) there are reasonable grounds to believe that there is a high risk of serious injury, serious illness or death at a workplace (high risk is defined in Policy D12-196-2), or

(b) an employer

(i) violates a section of the Act or Regulation;

(ii) within the last 12 months, had previously violated the same section and failed to comply with the resulting order; and

(iii) there are reasonable grounds to believe that there is a risk of serious injury, serious illness or death.

An officer will determine whether there are reasonable grounds for a stop work order based on knowledge and experience along with any immediately available advice and assistance. An officer may make a decision on the spot to immediately protect workers and then make further inquiries afterwards.

When there are reasonable grounds for a stop work order, WorkSafeBC must then consider whether a stop work order is appropriate in the circumstances as set out in B below.

B. Appropriateness of a Stop Work Order

A stop work order is not necessary in every case where one is possible under the Act. WorkSafeBC will generally issue a stop work order when the safety concern cannot be quickly remedied and other measures are insufficient to protect the workers in that workplace. The following are some examples of the circumstances:

(a) The equipment needed to comply is not at the workplace.

Work cannot safely continue until the employer obtains the needed equipment.

(b) The employer has not trained the workers to perform the work safely.

Work cannot safely continue until the employer gives workers the necessary training.

(c) The employer does not have an effective system of supervision in place to ensure that work is performed safely.

Work cannot safely continue until the employer implements an effective system of supervision.

(d) The documentation necessary to determine whether the work is safe is unavailable.

This could include things such as a hazardous materials survey and confirmation in writing, instructions for an excavation, or confined space hazard assessment and entry procedures.

(e) The employer has a history of non-compliance with OHS Compliance Orders.

WorkSafeBC may not be able to rely on the employer to remedy the violation before resuming work and it may be necessary to stop work until the employer demonstrates that they have taken the required actions.

(f) The employer has expressed the intent not to comply with OHS Compliance Orders.

WorkSafeBC will be unable to rely on the employer to address the violation and work must be stopped until WorkSafeBC can verify that the employer has taken the required precautions.

(g) The employer cannot be reached or identified and work is pending that will pose a high risk to workers.

For example, a demolition site contaminated with asbestos would pose a high risk to untrained and unprotected workers. It may be necessary to issue a stop work order at the workplace until WorkSafeBC can verify that the employer has taken the required precautions.

If a stop work order is appropriate, WorkSafeBC must then consider:

(a) the scope of that stop work order as set out in C, and

(b) whether a multiple workplace stop work order is appropriate as set out in D.

C. Scope of a Stop Work Order (Area of Workplace Involved)

If WorkSafeBC decides to issue a stop work order, it must carefully consider the scope of the order.

The Act provides that a stop work order may apply to a workplace or any part of the workplace.

The scope of a stop work order must be sufficient to ensure that the work posing a risk to workers is halted. However, the stop work order should not impact work or those parts of the workplace where the risk underlying the stop work order is not evident and work is being done in a safe manner.

The following are two examples of situations where a limited scope order might be appropriate:

(1) A large construction site may have a variety of work practices occurring simultaneously, including earth moving work in one section of the site, and assembly of formwork in another section of the site. If WorkSafeBC observes a failure to wear fall protection while assembling formwork, the stop work order should be restricted to that part of the workplace where formwork assembly is occurring.

(2) A warehouse may have an area where unsafe stacking of items may pose a significant hazard to workers in one area of the warehouse but other parts of the warehouse would be unaffected. In that case, a stop work order would be restricted to the area where the hazard exists.

D. Stop Operations Order

The Act provides that WorkSafeBC may stop work or prohibit work from starting at other workplaces (or parts of those workplaces) of the same employer who was issued a stop work order. This is referred to in this policy as a stop operations order. The Act also provides that WorkSafeBC must have reasonable grounds for believing that the same or similar unsafe working or workplace conditions exist, or would exist, at the other workplaces.

WorkSafeBC will consider the following in relation to the Act requirements for a stop operations order:

(a) Same employer:

The employer must be the same employer at each workplace where the stop work order (or prohibition from starting work) will take effect. In multiple employer workplaces, WorkSafeBC must ensure that the stop work order applies only to the same employer or those parts of the workplace where the employer has (or would have) responsibility for unsafe working or workplace conditions.

(b) Same or similar unsafe working or workplace conditions

To determine whether there are reasonable grounds to believe that unsafe working or workplace conditions at other workplaces are, or would be, the same or similar in respect to the stop work order made on the employer, WorkSafeBC will consider the following factors:

  • Whether the employer performs, or would perform, substantially the same or similar work at other workplaces.
  • Whether the employer uses, or would use, the same or similar work practices or equipment at other workplaces.
  • Whether the same or similar working or workplace conditions exist, or would exist, at other workplaces.

E. Duration of a Stop Work Order

Once a stop work order is imposed, the duration of the stop work order will vary depending on the circumstances. WorkSafeBC may cancel a stop work order as soon as the employer has remedied the unsafe working or workplace conditions and a stop work order is no longer required to protect workers. In some circumstances, a stop work order could be cancelled within minutes.

For example, WorkSafeBC may issue a stop work order to prohibit work in a stairway under construction, due to the risk of collapse. WorkSafeBC could then cancel the order later that day after the employer obtained an engineering report and took the remedial action recommended in the report.

In order for WorkSafeBC to cancel a stop operations order, the employer must demonstrate that the employer has remedied the unsafe working or workplace conditions at all workplaces to which the stop work order applies.

In order for WorkSafeBC to cancel a stop operations order prohibiting work from starting at another workplace, the employer must demonstrate that it has taken the appropriate actions to ensure that the unsafe working or workplace conditions will not arise at that other workplace.

PRACTICE
The Act requires that a stop work order must be in writing. In most cases, WorkSafeBC will initially post a handwritten stop work order placard at the site before providing an inspection report containing the stop work order.

The Act provides that a stop work order expires after 72 hours unless the order has been confirmed in writing by the Board. OHS Guideline G-D12-188(4)-2 states that the Senior Vice President, Operations and Vice President, Prevention Services have the authority to:
(a) confirm a stop work order beyond 72 hours, and
(b) approve a stop operations order.


EFFECTIVE DATE: January 1, 2016
AUTHORITY: s. 191, Workers Compensation Act
CROSS REFERENCES:
HISTORY:

Amended effective January 1, 2016 to change the paragraph order in the Explanatory Notes and make wording changes to sections D (Stop Operations Orders), E (Duration of a Stop Work Order) and the Practice section.

Interim policy effective May 27, 2015 applies to all inspections occurring on and after May 27, 2015 until the end of December 31, 2015. Amended effective May 27, 2015 following the amendments to Section 191 of the Workers Compensation Act to address:

(a) when to consider a stop work order,

(b) when a stop work order is appropriate,

(c) the scope of a stop work order,

(d) the use of a stop operations order, and

(e) the duration of a stop work order

Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.

APPLICATION: This policy applies to all inspections that occur on and after January 1, 2016.

Policy Item D12-195-1
RE: Orders – Cancellation and Suspension of Certificates

BACKGROUND
1. Explanatory Notes

Section 195(1) sets out circumstances in which the Board may cancel or suspend a certificate, or place conditions upon the use of a certificate issued under Part 3 or the regulations.

2. The Act

Section 195:

(1) If the Board has reasonable grounds for believing that a person who holds a certificate issued under this Part or the regulations has breached a term or condition of the certificate or has otherwise contravened a provision of this Part or the regulations, the Board may, by order,

(a) cancel or suspend the certificate, or

(b) place a condition on the use of that certificate that the Board considers is necessary in the circumstances.

(2) An order under this section suspending a certificate must specify the length of time that the suspension is in effect or the condition that must be met before the suspension is no longer in effect.

POLICY
Section 195 applies to certificates issued by the Board to qualify persons to do a particular job, including:

  • certificates issued to first aid attendants and instructors under section 159;
  • certificates issued to blasters and instructors under section 163; and
  • any similar certificate issued by the Board under Part 3 or the regulations.

The section also applies to such certificates issued on behalf of the Board by another person, such as a training agency, under an arrangement with the Board.

(a) First Aid Certificates

A first aid certificate issued to a first aid attendant may be suspended, cancelled or have conditions placed upon its use where the first aid attendant engages in inappropriate conduct, including:

  • smoking while assessing or treating an injured worker and/or while handling oxygen therapy equipment, or permitting others to do so;
  • failure to use the assessment and injury treatment techniques outlined in first aid training courses unless conditions precluded them;
  • conduct that poses an unreasonable threat to the safety and well-being of other workers or the public;
  • removing themselves from being able to see or hear any summons for first aid at a workplace;
  • abandonment of an injured worker after beginning assessment or treatment;
  • refusal to treat an injured worker when acting as a designated first aid attendant; or
  • treating or transporting an injured worker while impaired or under the influence of drugs or alcohol.

EFFECTIVE DATE: March 30, 2004
AUTHORITY: s. 195, Workers Compensation Act
CROSS REFERENCES: ss. 159, 163, Workers Compensation Act
HISTORY: Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Policy revised to incorporate the parts of Policy No. 80.27 of the former Prevention Division Policy and Procedure Manual relating to circumstances when the WCB may suspend, cancel or place conditions on the certificate of a first aid attendant, effective March 30, 2004.
APPLICATION: This policy applies to events occurring on or after March 30, 2004 that leads to the consideration of a suspension, cancellation or placement of a condition on certificates issued under Part 3 of the Act, or the regulations.

Policy Item D12-196-1
RE: Criteria for Imposing OHS Penalties

BACKGROUND
1. Explanatory Notes

The main purpose of an administrative penalty ("OHS Penalty") is to motivate the employer receiving the penalty and other employers to comply with the Act and Regulation.

Employers and other workplace parties are required to comply at all times with the Act and Regulation to ensure a safe workplace. WorkSafeBC inspects workplaces and investigates incidents to determine whether workplace parties are in compliance and issues orders to remedy non-compliance with the Act and Regulation. An order does not initiate the obligation to comply and it is not sufficient simply to comply with WorkSafeBC orders after a violation, injury or disease has occurred.

In order to comply with the Act, employers and other workplace parties must read the Act and Regulation and take all reasonable steps to ensure that they are aware of their responsibilities. Ignorance of the requirements of the Act and Regulation is not a defence to a penalty.

Section 196(1) contains the legal authority for imposing an OHS Penalty. An OHS Penalty is different from an OHS Citation imposed under section 196.1 of the Act. Policy D12-196.1-1 addresses OHS Citations.

Section 196(3) states that an OHS Penalty must not be imposed if the employer establishes that it exercised "due diligence" to prevent the failure, non-compliance or conditions to which the penalty relates. Due diligence means taking all reasonable steps to comply. Policy D12-196-10 contains more information about "due diligence".

This policy sets out the criteria that WorkSafeBC uses to determine whether to impose an OHS Penalty based on a violation. There are two parts to the policy:

A. Circumstances When WorkSafeBC Will Consider an OHS Penalty
The policy lists a set of circumstances in which WorkSafeBC must consider an OHS Penalty.

B. Considering the Appropriateness of an OHS Penalty
When the circumstances in A (above) have occurred, the policy sets out a number of factors to be considered to determine whether an OHS Penalty is appropriate in the circumstances. If an employer is duly diligent, WorkSafeBC cannot impose an OHS Penalty and these factors do not need to be considered.

2. The Act

Section 196(1):

The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

Section 196(3):

An administrative penalty under this section must not be imposed on an employer if the employer demonstrates that the employer exercised due diligence to prevent the circumstances described in subsection (1).

POLICY
In this policy, the term violation refers to a violation of the Occupational Health and Safety Regulation (the "Regulation") or Part 3 of the Workers Compensation Act ("Act").

The main purpose of OHS Penalties is to motivate the employer receiving the penalty and other employers to comply with the Act and Regulation.

Employers and other workplace parties must comply with any orders issued. However, compliance with orders will not relieve an employer from the consequences of a violation, including OHS Penalties.

A. Circumstances When WorkSafeBC Will Consider an OHS Penalty
WorkSafeBC must consider an OHS Penalty if an employer has committed a violation for which at least one of the following applies:

  1. The violation resulted in a high risk of serious injury, serious illness or death;

    Policy D12-196-2 sets out how to determine whether violations are high risk.


  2. The employer previously violated the same, or substantially similar, sections of the Act or Regulation (repeat violations) or the violation involves failure to comply with a previous order within a reasonable time;

    WorkSafeBC will generally consider violations at different fixed locations of a multi-site employer together to determine whether there have been repeat violations. However if a violation is a location violation, WorkSafeBC will only consider violations at that location to determine whether it qualifies as a repeat violation.

    A location violation is a violation by an employer with multiple fixed locations who, at the time of the violation, was doing all of the following:

    (a) effectively communicating with all locations regarding health and safety concerns;

    (b) providing adequate training to managers and others who implement site health and safety programs;

    (c) making local management accountable for health and safety; and

    (d) providing local management with sufficient resources for health and safety.

    Policy D12-196-3 sets out how prior violations are treated following sale or re-organization of a firm.


  3. The employer intentionally committed the violation;

  4. The employer violated section 177 of the Act;

    Section 177 states that an employer or supervisor must not, by agreement, threat, promise, inducement, persuasion or any other means, seek to discourage, impede or dissuade a worker of the employer, or a dependant of the worker, from reporting to the Board:

    (a) an injury or allegation of an injury, whether or not the injury occurred or is compensable under Part 1,

    (b) an illness, whether or not the illness exists or is an occupational disease compensable under Part 1,

    (c) a death, whether or not the death is compensable under Part 1, or

    (d) a hazardous condition or allegation of hazardous condition in any work to which this part applies.

  5. The employer violated section 186 of the Act;

    Section 186 states:

    (1) A person must provide all reasonable means in that person's power to facilitate an inspection under this Part.

    (2) A person must not

    (a) hinder, obstruct, molest or interfere with, or attempt to hinder, obstruct, molest or interfere with, an officer in the exercise of a power or the performance of a function or duty under this Part or the regulations,

    (b) knowingly provide an officer with false information, or refuse to provide information required by an officer in the exercise of the officer's powers or performance of the officer's functions or duties under this Part or the regulations, or

    (c) interfere with any monitoring equipment or device in a workplace placed or ordered to be placed there by the Board.

  6. The employer violated a stop work order (section 191 of the Act) or stop use order (section 190 of the Act); or

    Section 190 gives WorkSafeBC the authority to order equipment out of service. Section 191 gives WorkSafeBC the authority to order work to stop at all or part of a workplace, or at multiple workplaces.

  7. WorkSafeBC considers that the circumstances warrant a penalty.

B. Considering the Appropriateness of an OHS Penalty
When considering the appropriateness of an OHS Penalty, WorkSafeBC must consider the following factors:

  1. the potential for serious injury, illness or death in the circumstances, based on the available information at the time of the violation;

  2. the likelihood that the penalty will motivate the employer (specific deterrence) and other employers (general deterrence) to comply in the future, taking into account one or more of the following:

    (a) the extent to which the employer was or should have been aware of the hazard,

    (b) the extent to which the employer was or should have been aware that the Act or Regulation were being violated,

    (c) the compliance history of the employer,

    (d) the effectiveness of the employer's overall approach to managing health and safety, and

    (e) whether other enforcement tools would be more appropriate;

  3. any other relevant circumstances.

Section 196(3) of the Act says that a penalty cannot be imposed if the employer establishes that the employer exercised due diligence.


EFFECTIVE DATE: March 1, 2016
AUTHORITY: s. 196(1), Workers Compensation Act
CROSS REFERENCES: See also OHS Penalties – High Risk Violations (Item D12-196-2), Transfer of OHS History (Item D12-196-3); Non-Exclusive Ways to Impose Financial Penalties (Item D12-196-4), and Due Diligence (Item D12-196-10 and s. 196(6) of the Workers Compensation Act), section 160 of the Workers Compensation Act.
HISTORY: Policy amended effective March 1, 2016 to revise the circumstances when WorkSafeBC will consider a penalty and the factors considered to determine whether a penalty is appropriate.
Housekeeping amendments to Background Secction effective May 27, 2015 to reflect changes to the Workers Compensation Act.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Effective October 29, 2003, an example in the policy that referenced section 20.11 of the Occupational Health and Safety Regulation was deleted to reflect the repeal of that section.
Effective July 1, 2003, a minor change was made to the second bullet of the policy, for congruency with Items D12-196-3 and D12-196-6.
Consequential changes were subsequently made to the restatement of section 196 to reflect the Workers Compensation Amendment Act, 2002 and to the Explanatory Notes, the restatement of section 196 and the cross-references to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
This Item was originally developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999.
APPLICATION: This policy applies to all violations occurring on and after March 1, 2016.

Policy Item D12-196-2
RE: High Risk Violations

BACKGROUND
1. Explanatory Notes

Policies D12-196-1 (Criteria for Imposing Penalties), D12-196-6 (Amount of Penalties), and D12-196-11 (OHS Warning Letters) require consideration of whether a violation involves high risk of serious injury, serious illness, or death ("high risk").

The Workers Compensation Act states that Occupational Health and Safety ("OHS") Penalties cannot be imposed if an employer establishes that it was duly diligent. Policy D12-196-11 confirms that OHS Warning Letters cannot be issued if an employer was duly diligent. Policy D12-196-10 discusses due diligence.

This policy sets out how WorkSafeBC will categorize a violation as high risk. Violations may be classified as high risk in one of two ways:

A. Designated High Risk Violations

The first category are "designated high risk violations", ones that are automatically considered to be high risk because they regularly result in fatalities, serious injuries and serious illnesses. They generally give a worker little or no opportunity to avoid or minimize severe injury or death or occupational disease. The six items on the list are high risk violations.

B. High Risk Criteria

Many violations that are not on the list of designated high risk violations may also be high risk.

The policy sets out criteria to determine whether violations (other than designated high risk ones) are high risk.

For ease of reference, in this policy:

(a) "high risk" refers to high risk of serious injury, serious illness or death; and

(b) "Regulation" refers to the Occupational Health and Safety Regulation.

This policy sets out how high risk is determined for the policies regarding occupational health and safety related penalties and warning letters. Violations in the six circumstances on the list of Designated High Risk Violations (A) are high risk. Determining whether other violations are high risk will depend on the High Risk Criteria (B).

A. Designated High Risk Violations

Violations of the Workers Compensation Act ("Act") or Regulation relating to the following circumstances are high risk:

  1. Entry into an excavation over 1.2 m (4 feet) deep contrary to the requirements of the Regulation.
  2. Work at over 3 m (10 feet) without an effective fall protection system.
  3. Entry into a confined space without pre-entry testing and inspection to verify that the required precautions have been effective at controlling the identified hazards.
  4. Causing work disturbing material containing asbestos, or potentially containing asbestos, to be performed without necessary precautions to protect workers.
  5. Hand falling or bucking without necessary precautions to protect workers from the tree that is being felled or bucked, or other affected trees.
    Explanatory note: OHS Guideline G-D12-196-2 includes examples of circumstances where this would apply.

  6. Work in the vicinity of potentially combustible dust without the necessary precautions to protect workers.

B. High Risk Criteria

When violations have occurred in circumstances that are not listed in A above, WorkSafeBC will determine whether the circumstances are high risk in each case on the basis of the available evidence concerning:

  1. the likelihood of an incident or exposure occurring; and
  2. the likely seriousness of any injury or illness that could result if that incident or exposure occurs.
    Explanatory note: OHS Guideline G-D12-196-2 provides a list of violations that are likely to be high risk when applying the high risk criteria. Even though a violation is on that list, it must still be analyzed using the High Risk Criteria (B) in this policy, since not every instance will be high risk.

PRACTICE
For practice information, please refer to OHS Guideline G-D12-196-2.


EFFECTIVE DATE: December 1, 2014
AUTHORITY: s. 196(1), Workers Compensation Act
CROSS REFERENCES: See also Administrative Penalties – Criteria for Imposing (D12-196-1)
Penalties – Amount of Penalty (D12-196-6), OHS Warning Letters (D12-196-11)
HISTORY: Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.
Amended effective December 1, 2014 to create six designated high risk violations and revise the high risk criteria.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Actcite>, effective October 1, 1999. Effective July 1, 2003, at number 7 of the policy, the term "snags" was removed, and replaced with "dangerous trees".
APPLICATION: Policy change effective December 1, 2014 applies to all violations occurring on or after December 1, 2014.
Policy change effective July 1, 2003 applies to all orders, including orders imposing administrative penalties under section 196, issued on or after July 1, 2003.

Policy Item D12-196-3
RE: Transfer of OHS History

BACKGROUND
1. Explanatory Notes

This policy provides that when the experience rating of an employer is transferred to another firm, the Occupational Health and Safety (OHS) history is also transferred.

POLICY
When a firm is sold or reorganized, WorkSafeBC may transfer that firm's experience rating to the successor firm (see AP1-42-3 of the Assessment Manual).

For OHS purposes, if WorkSafeBC transfers the experience rating to the successor firm, WorkSafeBC will treat the original firm's OHS history, including prior violations and penalties, as part of the successor firm's history.


EFFECTIVE DATE: March 1, 2016
AUTHORITY: s. 196(1), Workers Compensation Act
CROSS REFERENCES: See also Criteria for Imposing OHS Penalties (Item D12-196-1), OHS Penalty Amounts (Item D12-196-6), Assessment Manual: Transfer of Experience Rating AP1-42-3.
HISTORY: Changes effective March 1, 2016 to update discussion of transferring OHS History and to remove references to location violations, now contained in Policy D12-196-1.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Effective October 29, 2003, an example referencing section 20.11 of the Occupational Health and Safety Regulation in the policy was deleted to reflect the repeal of that section.
Effective March 18, 2003, references to policy items in the former Assessment Policy Manual were replaced with references to policy items in the Assessment Manual.
APPLICATION: This policy applies to all violations occurring on and after March 1, 2016.

Policy Item D12-196-4
RE: Non-Exclusive Ways to Impose Financial Penalties

BACKGROUND
1. Explanatory Notes

This policy sets out the non-exclusive ways in which the Board may impose financial penalties if an employer does not comply with the occupational health and safety requirements in the Act and regulations.

2. The Act

Section 73(1):

73(1) If

(a) an injury, death or disablement from occupational disease in respect of which compensation is payable occurs to a worker, and

(b) the Board considers that this was due substantially to

(i) the gross negligence of an employer,

(ii) the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases, or

(iii) the failure of an employer to comply with the orders or directions of the Board, or with the regulations made under Part 3 of this Act,

the Board may levy and collect from that employer as a contribution to the accident fund all or part of the amount of the compensation payable in respect of the injury, death or occupational disease, to a maximum of $55,810.03.

Section 160(b):

If an employer fails, neglects or refuses to install or maintain first aid equipment or service required by regulation or order, the Board may do one or more of the following:

(b) impose a special rate of assessment under Part 1 of this Act.

Section 196(1):

The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

POLICY
The Board has authority under the Act to:

  1. impose an administrative penalty under section 196(1),
  2. levy and collect a contribution from an employer under section 73(1), and
  3. impose a special rate of assessment under section 160(b).

EFFECTIVE DATE: March 24, 2010
AUTHORITY:
CROSS REFERENCES: See also Assignment of Authority (Item D2-111-1), Administrative Penalties - Criteria for Imposing (Item D12-196-1), Imposing of Levies - Charging of Claims Costs (Item D24-73-1), and First Aid Equipment - Imposing of Special Rate of Assessment (Item D8-160-1).
HISTORY: Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.

This policy incorporates portions of, and replaces, Policy No. 1.4.2 "Penalty Assessments and Levies" of the former Prevention Division Policy and Procedure Manual.

Amended March 24, 2010 to delete the reference to the Vice-President, Prevention Division, make minor wording changes and add a cross-reference to Policy D2-111-1 which has been amended to address authority over claims cost levies.
APPLICATION:

Policy Item D12-196-6
RE: OHS Penalty Amounts

BACKGROUND
1. Explanatory Notes

WorkSafeBC may impose an administrative penalty ("OHS Penalty") on an employer for failure to comply with Part 3 of the Act and the Regulation, and under certain other conditions. Policy D12-196-1 and related policies identify when WorkSafeBC will consider an OHS Penalty. Section 196(3) provides that WorkSafeBC must not impose an administrative penalty where the employer establishes that it exercised due diligence.

Section 196(2) sets out the maximum OHS Penalty, which is currently $637,415.60. This maximum is adjusted under section 25.2 of the Act on January 1 of each year.

The Act does not specify the amount of an administrative penalty that may be imposed in particular situations.

The Act does not specify how to calculate the amount of an OHS Penalty. This policy sets out how to calculate these amounts.

2. The Act

Section 196(2):

An administrative penalty which is greater than $637,415.60 must not be imposed under this section.

POLICY
This policy determines the amounts of administrative penalties, referred to as OHS Penalties.

1. Payroll Used
For the purposes of this policy, the penalty payroll will ordinarily be determined as set out in (a) below. Item (b) below identifies circumstances in which WorkSafeBC will use less than the total payroll of the employer to determine the penalty payroll. The penalty payroll is used in 2 below (basic amounts) to calculate the basic penalty amount.

(a) Penalty Payroll Calculation

(i) The penalty payroll is

(A) the assessable payroll for the full calendar year immediately preceding the year in which the incident giving rise to the penalty occurred; or

(B) WorkSafeBC's estimate of a value for the employer's assessable payroll for a full calendar year, based on the best information available at the time the penalty is imposed, if the preceding year's assessable payroll is:

(1) non-existent or unknown,

(2) not available due to the employer's use of a deposit account,

(3) based on less than a full calendar year, or

(4) a WorkSafeBC estimate of payroll.

The estimate must not be less than any estimate made previously by WorkSafeBC of the employer's assessable payroll for the calendar year. For certainty, any estimate cannot result in a penalty below the minimum amount.

(b) Multiple Fixed Locations and Divisional Registration

An employer may be divisionally registered (AP1-38-1), have one or more fixed locations or have one or more classification units (AP1-37-2). Divisions or classification units may themselves have multiple fixed locations.

Where a firm has more than one permanent location or is divisionally registered (AP1-38-1), WorkSafeBC will determine the penalty payroll based on the lowest applicable amount of the following where the violation occurred:

(i) fixed location,

(ii) division, or

(iii) classification unit,

if the employer promptly provides:

(i) the necessary payroll information for that location, classification or division to WorkSafeBC (signed by a professional accountant, the President or a senior manager of the employer) and cooperates in any audit that WorkSafeBC considers necessary; and

(ii) sufficient evidence to establish that, at the time of the violation, the employer was doing all of the following at the applicable location, classification or divisional level:

(A) effectively communicating with all locations regarding health and safety concerns,

(B) providing adequate training to managers and others who implement site health and safety programs,

(C) making local management accountable for health and safety, and

(D) providing local management with sufficient resources for health and safety.

2. Basic amount of the penalty

(a) Calculation of basic amounts
WorkSafeBC will calculate the basic amount of an OHS penalty by multiplying the penalty payroll by 0.5%, with a minimum of $1,250 and a maximum of half of the statutory maximum. WorkSafeBC will then use the applicable multipliers in (b) below. A table providing examples of penalty amounts is in the Practice section below.

(b) Multipliers

Each multiplier is additive, so each factor will affect the amount. For example, if (i) and (ii) both apply, WorkSafeBC will multiply the basic amount by 4.

If any of the violations on which the penalty is based:
(i) are high risk (item 1 in D12-196-1, defined in D12-196-2)
(ii) are intentional (item 3 in D12-196-1)
(iii) involve section 186 obstruction (item 5 of D12-196-1)
(iv) involve section 177 (item 4 of D12-196-1)
(v) involve breaching a stop work or stop use order (item 6 of D12-196-1)
Multiply the basic amount by 2 for each one that applies and add the results together.

(c) Variation factors

This policy is designed to ensure that employers of similar size generally receive similar penalty amounts in similar cases. In exceptional circumstances only, the basic amount of the penalty may be reduced or increased by up to 30%. Circumstances that are adequately addressed by other parts of this policy are not exceptional circumstances.

3. Repeat penalties

(a) An OHS Penalty will be imposed as a "repeat penalty" where: there is a prior similar penalty.

(b) A prior similar penalty means any previous penalty that meets the following criteria:

(i) it is for a violation that is the same as, or substantially similar to, a prior violation for which a penalty has been imposed;

(ii) the violations occurred within 3 years of one another; and

(iii) at least 14 days prior to the date of the violation giving rise to the repeat penalty, WorkSafeBC

(A) had imposed a penalty for the prior violation, or

(B) provided notice of a potential penalty for the prior violation.

(c) For paragraph (b), the date of a violation is the date of the incident.

(d) WorkSafeBC may provide notice under paragraph (b)(iii)(B) verbally or in writing, in person, by telephone, by mail, fax, email or other method.

(e) WorkSafeBC will calculate a repeat penalty as follows:

(i) Calculate the basic amount of the penalty, including any variation, using Item 2 of this Policy (D12-196-6).

(ii) Double the basic amount of the penalty for each prior similar penalty (up to the statutory maximum).

(iii) Where there are at least two prior similar penalties and the employer's response to previous violations causes WorkSafeBC to believe that a higher level of motivation is required, WorkSafeBC may multiply the result of (ii) by 2 (up to the statutory maximum).

4. Recovery of potential or actual financial benefits obtained from non-compliance

WorkSafeBC may make a reasonable estimate of the amount of any potential or actual financial benefit, such as cost saving or profit, obtained by the employer from committing the violation and add that amount to the penalty amount determined above. That amount forms part of the administrative penalty.

Potential financial benefits include those that would have occurred if the violation had not been discovered.

WorkSafeBC may consider adding these amounts when the penalty amount is insufficient to motivate the employer in light of the potential or actual financial benefits of non-compliance.

These amounts form part of the penalty and the total remains subject to the statutory maximum.

5. Discretionary Penalties

In some cases, where the circumstances warrant, WorkSafeBC may impose a discretionary penalty, which is a larger penalty than one calculated based on payroll. Unlike payroll based penalties, discretionary penalty amounts focus on reflecting the gravity of the circumstances and the need to motivate the employer and other employers to comply.

WorkSafeBC may impose a discretionary penalty up to the statutory maximum where:

(i) the employer has committed a high risk violation (defined in D12-196-2);

(ii) the employer committed the violation intentionally or with reckless disregard;

(iii) a worker has died or suffered serious permanent impairment as a result of the violation; and

(iv) the President or delegate(s) have granted authorization to impose a discretionary penalty.

A document signed by the President or delegate will be sufficient evidence that authorization was granted.

A discretionary penalty that is less than the penalty based on payroll may not be imposed.

Review Division or WCAT may vary the amount of a discretionary penalty or substitute a payroll based penalty in the review or appeal process.

Review Division may impose a discretionary penalty on review if the above conditions are met, but the approval of the President or delegate under item (iv) is not required.

6. Statutory maximum

WorkSafeBC will not impose an individual OHS penalty greater than the statutory maximum in effect at the time of the violation giving rise to the penalty.

7. Multiple Penalties

Ordinarily WorkSafeBC will impose only one penalty for violations arising out of the same incident or inspection. However, WorkSafeBC may impose separate penalties for distinct violations arising in the same circumstances as other violations that will result in a penalty. The criteria in Policy D12-196-1 would apply to each.

PRACTICE
Examples of Basic Penalty Amounts

The following are some examples of the basic amount calculated under the policy for different payroll amounts with multipliers. This table is for reference only. All amounts will be calculated according to the Policy.

Penalty Payroll Basic Penalty Amount 2x 4x 6x
Up to $250,000 $1,250 $2,500 $5,000 $7,500
$500,000 $2,500 $5,000 $10,000 $15,000
$1,000,000 $5,000 $10,000 $20,000 $30,000
$2,500,000 $12,500 $25,000 $50,000 $75,000
$5,000,000 $25,000 $50,000 $100,000 $150,000
$10,000,000 $50,000 $100,000 $200,000 $300,000
$20,000,000 $100,000 $200,000 $400,000 $600,000
$30,000,000 $150,000 $300,000 $600,000 Stat Max
$40,000,000 $200,000 $400,000 Stat Max
$50,000,000 $250,000 $500,000 Stat Max
$63,741,560 or more $318,707.80 (half statutory max) Stat Max ($637,415.60)

Examples of Application of the Repeat Penalty Provisions

Example 1: You are calculating the penalty to be imposed for a violation that occurred less than 14 days after another similar violation that also resulted in a penalty. The employer has no other prior penalties for the same violation.

Calculate the penalty in accordance with Item 2 of this policy. After applying Item 3 of this policy, you determine that the current penalty is not a "repeat penalty". The penalty will therefore be imposed based on the table amount with variation plus any amounts added under Item 4 of this policy.

Example 2: You are calculating the penalty to be imposed for a violation that occurred less than 14 days after another similar violation that also resulted in a penalty. The employer has one other prior penalty for the same violation for which more than 14 days notice was given before the current violation.

Calculate the penalty in accordance with Item 2 of this policy. After applying Item 3 of this policy, you determine that the current penalty is a "repeat penalty". There are two prior similar penalties, however only one meets the requirements to be considered as a "prior similar penalty". Using Item 3(e), you determine that one prior similar penalty will result in the amount that you calculated for the penalty being multiplied by two.

Example 3: You are calculating the penalty to be imposed for a violation. The employer has three other prior penalties for the same violation for which more than 14 days notice was given before the current violation.

Calculate the penalty in accordance with Item 2 of this policy. After applying Item 3 of this policy, you determine that the current penalty is a "repeat penalty". The three prior penalties each meet the requirements to be considered as a "prior similar penalty". Using Item 3(e), the basic amount will be successively doubled (multiplied by two) for each of the three prior similar penalties, resulting in a penalty of eight times the basic amount. For example, if the basic amount were $1250 the resulting penalty would be $10,000.

The following table illustrates the repeat penalty calculations.

Number of Prior Similar Penalties Repeat Penalty Multiplier
1 2x
2 4x
3 8x
4 16x
5 32x
6 or more 64x and and continues doubling successively for each additional prior similar penalty until the statutory maximum is reached.



EFFECTIVE DATE: March 1, 2016
AUTHORITY: s. 196(2), Workers Compensation Act
CROSS REFERENCES: See also Criteria for Imposing OHS Penalties (Item D12-196-1), Transfer of OHS History (Item D12-196-3), OHS Penalties – Due Diligence (Item D12-196-10).
HISTORY:

Housekeeping amendment effective April 15, 2016 to provide additional practice information regarding calculation of repeat penalty amounts.
Amendments effective March 1, 2016 including changes to penalty amount calculations, discretionary penalties, cost savings and profits and repeat penalties.
Housekeeping changes effective September 15, 2010 to correct paragraph reference in item 4(4) and make formatting changes.
Effective January 2, 2010 a change was made to
(a) Item 1 to correct a typographical error in the Category A penalty table, and
(b) Item 4 so that an administrative penalty will be imposed as a "repeat penalty" where:
(i) it is for a violation that is the same as, or substantially similar to, a prior violation for which a penalty has been imposed;
(ii) the violations occurred within 3 years of one another; and
(iii) at least 14 days prior to the date of the violation giving rise to the repeat penalty, WorkSafeBC
(1) had imposed a penalty for the prior violation, or
(2) provided notice of a potential penalty for the prior violation.
The amendments made effective January 2, 2010 applied to all penalties where a penalty was imposed on or after the effective date of the changes. Transitional provisions applied to penalties within the appeal period, before Review Division or before WCAT on the effective date.
Transitional Provision for Repeat Penalty Calculation:
Penalties within the appeal period or under review or appeal on the effective date of the policy change will be subject to the policy in effect when originally imposed, with the additional requirement that a prior penalty will only be used to increase the amount of a repeat penalty, if at least 14 days prior to the date of the violation giving rise to the repeat penalty, WorkSafeBC
(a) had imposed a penalty for the prior violation, or
(b) provided notice of a potential penalty for the prior violation.
Effective March 25, 2009 a change was made to base the penalty calculation on the employer's assessable payroll for the full calendar year immediately preceding the year in which the incident that gave rise to the penalty occurred. Effective March 25, 2009 a change was made to allow WorkSafeBC to estimate payroll in certain situations. The amendments made effective March 25, 2009 applied to all decisions, including appellate decisions, made on or after the effective date of the changes.
Effective October 29, 2003, an example referencing section 20.11 of the Occupational Health and Safety Regulation in the policy was deleted to reflect the repeal of that section.
Effective July 1, 2003 a minor change was made at number four of the policy, to correct the reference of section 20.22 to section 20.11 of the Occupational Health and Safety Regulation.
Consequential changes were subsequently made throughout Item to implement the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
This Item was originally developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective September 15, 2000.

APPLICATION:

This policy applies to all violations occurring on and after March 1, 2016.


Policy Item D12-196-7
RE: OHS Penalties & Claims Costs Levies – Effect of Application for Stay at Review Division

BACKGROUND
1. Explanatory Notes

This policy addresses administrative penalties imposed pursuant to section 196 of the Act and claims cost levies imposed pursuant to section 73(1) of the Act.

An administrative penalty or claims cost levy must be paid unless a stay is granted by the Chief Review Officer of the Review Division, or the Workers' Compensation Appeal Tribunal.

This policy sets out limits on collection while the decision on an application for a stay is pending at Review Division.

2. The Act
Section 223:

(1) If a person fails to pay an amount owed to the Board under this Part[Part 3], the Board may,

(a) if the person is an employer, direct that the amount be levied on the employer by way of an assessment, and

(b) in any case, issue a certificate for the amount owed and file that certificate in the Supreme Court.

(2) An assessment under subsection (1)(a) is deemed to be an assessment under Part 1 of this Act and may be levied and collected under and in accordance with that Part.

(3) A certificate filed under subsection (1)(b) has the same effect, and all proceedings may be taken on it by the Board, as if it were a judgment of the court for the recovery of a debt of the amount stated in the certificate against the person named in it.

Section 96.2(5)

Unless, on application, the chief review officer orders otherwise, the filing of a request for a review under subsection (3) does not operate as a stay or suspend the operation of the decision or order under review.

Section 96.2(4)

On application, and where the chief review officer is satisfied that

(a) special circumstances existed which precluded the filing of a request for review within the time period required in subsection (3) [45 days], and

(b) an injustice would otherwise result,

the chief review officer may extend the time to file a request for review even if the time to file has expired.

Section 244

Unless the appeal tribunal orders otherwise, the filing of a notice of appeal under section 242 does not operate as a stay or affect the operation of the decision or order under appeal.

POLICY
If an employer has applied to the Chief Review Officer for a stay under section 96.2(5) relating to an administrative penalty or claims cost levy, WorkSafeBC will not collect the administrative penalty or claims cost levy by assessment, or take any additional steps to collect by garnishment, or writ of seizure and sale until the Chief Review Officer has decided the application or the review is concluded, whichever occurs first.

This does not apply to a stay request on a request for review filed after the time to file has expired unless the Chief Review Officer grants an application under s.96.2(4) to extend the time to file a request for review.

PRACTICE
This policy allows WorkSafeBC to register a certificate with the Court and register the debt against an employer's land while a stay request is pending. This would generally only occur when WorkSafeBC identifies a significant risk of loss.


EFFECTIVE DATE: March 1, 2013
AUTHORITY: s. 196(5), Workers Compensation Act
CROSS REFERENCES: ss. 96.2(5), 223(1), 244, Workers Compensation Act
HISTORY: Housekeeping changes effective September 15, 2015 to reflect that, as of that date, a request for review of a WorkSafeBC decision or order on an occupational health and safety or claims cost levy matter must be submitted to the Review Division within 45 days of the date the decision or order was made.
Amended March 1, 2013 to specify the court proceedings affected by an application for a stay, to include claims cost levies and to address late requests for review.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the statement of the Act and to the POLICY statement to reflect the Workers Compensation Amendment Act (No. 2) 2002, effective March 3, 2003.
APPLICATION:

This policy applies to all applications for stay requests of penalties or claims cost levies made to Review Division on or after the effective date.

For stay requests on penalties made before the effective date, the policy in effect at that time applies, with two modifications to provide that the limits on collection:

  • will end when the Chief Review Officer has decided the application, or the review is concluded, whichever occurs first, and
  • will not apply to a stay request on a request for review filed after the time to file has expired unless the Chief Review Officer grants an application under s. 96.2(4) to extend the time to file a request for review.


Policy Item D12-196-8
RE: Administrative Penalties – Payment of Interest on Successful Appeal

BACKGROUND
1. Explanatory Notes

Section 196(6) requires the payment of interest where an administrative penalty is reduced or cancelled on appeal.

2. The Act

Section 196(6):

If an administrative penalty under this section is reduced or cancelled by a Board decision, on a review requested under section 96.2 or on an appeal to the appeal tribunal under Part 4, the Board must

(a) refund the required amount to the employer out of the accident fund, and

(b) pay interest on that amount calculated in accordance with the policies of the board of directors.

POLICY
The policies governing the payment of interest are set out in policy in Item AP1-39-2 of the Assessment Manual.


EFFECTIVE DATE: March 3, 2003
AUTHORITY: s. 196(6), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.

Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.

Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the Explanatory Notes and to the restatement of section 196(6) to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:


Policy Item D12-196-9
RE: Administrative Penalties – Prosecution Following Penalty

BACKGROUND
1. Explanatory Notes

An employer may either be required to pay an administrative penalty in respect of a violation or prosecuted under the Act for the violation, but not both.

2. The Act

Section 196(7):

If an administrative penalty under this section is imposed on an employer, the employer must not be prosecuted under this Act in respect of the same facts and circumstances upon which the Board based the administrative penalty.

POLICY
Once a prosecution under the Act has been commenced against an employer in respect of a violation, the Board will not impose an administrative penalty. A prosecution is "commenced" for this purpose, when an information is laid pursuant to the Offence Act.

An administrative penalty will not be imposed even if the prosecution does not proceed or is unsuccessful.


EFFECTIVE DATE: March 3, 2003
AUTHORITY: s. 196(7), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.
Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.

Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998 effective October 1, 1999. Consequential changes subsequently made throughout the Item to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:


Policy Item D12-196-10
RE: OHS Penalties – Due Diligence

BACKGROUND
1. Explanatory Notes

The Board is authorized to impose administrative penalties on employers for failure to comply with Part 3 of the Act and the regulations, and under certain other conditions. Section 196(3) provides that an administrative penalty under this section must not be imposed if the employer establishes that it exercised due diligence to prevent the failure, non-compliance or conditions to which the penalty relates.

2. The Act

Section 196(3):

An administrative penalty under this section must not be imposed on an employer if the employer establishes that the employer exercised due diligence to prevent the circumstances described in subsection (1).

POLICY
The Board will consider that the employer exercised due diligence if the evidence shows on a balance of probabilities that the employer took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. Due diligence will be found if the employer reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if the employer took all reasonable steps to avoid the particular event.

In determining whether the employer has exercised due diligence under section 196(3), all the circumstances of the case must be considered.


EFFECTIVE DATE: March 3, 2003
AUTHORITY: s. 196(3), Workers Compensation Act. "Due diligence" is defined at common law by the courts. The standard set out in the POLICY section reflects the leading Supreme Court of Canada case - R. v. Sault Ste. Marie [1978] 85 DLR (3rd) 161. The requirements of the "due diligence" defence are open to re-interpretation by the courts. They may, therefore, be changed in future. Were this to happen, changes would be required to the Board's POLICY as well.
CROSS REFERENCES: See also Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Directors and Officers of a Corporation (Item D3-121-1), Overlapping Obligations (Item D3-123/124-1); Administrative Penalties - Criteria for Imposing (Item D12-196-1)
HISTORY: Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.

Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.

Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to various parts of the Item to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION: This policy applies to all decisions to impose administrative penalties on and after March 3, 2003.


Policy Item D12-196-11
RE: Occupational Health and Safety ("OHS") Penalty Warning Letters

BACKGROUND
1. Explanatory Notes

As an alternative to imposing an administrative penalty, the Board (operating as WorkSafeBC) may send the employer a letter warning that further similar violations of the Act or Regulation could result in an administrative penalty.

Both administrative penalties and warning letters are tools intended to motivate employers to comply with the Act and Regulation.

WorkSafeBC may send warning letters when the grounds for considering an administrative penalty are met and an employer has failed to exercise due diligence.

This policy provides factors for considering the appropriateness of a warning letter. A key factor is the likelihood that the warning letter will be sufficient to motivate the employer to comply in the future. Another is the potential for serious injury, illness, or death in the circumstances.

There is no requirement that a warning letter be sent prior to imposing a penalty.

The policy notes that ordinarily more than one warning letter will not be issued for the same or similar violations. This is because a warning letter is to motivate an employer to comply and non-compliance of a same or similar type suggests that a warning letter was not effective to do so. Similarly, a warning letter would not generally be appropriate for the same or similar violations following a penalty or prosecution. In both circumstances, WorkSafeBC would need to consider what other enforcement tools would be effective to motivate compliance.

2. The Act

Section 196(1):

The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

Section 111(1):

In accordance with the purposes of this Part, the Board has the mandate to be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work.

Section 111(2)(d):

In carrying out its mandate, the Board has the following functions, duties and powers:

(d) to ensure that persons concerned with the purposes of this Part are provided with information and advice relating to its administration and to occupational health and safety and occupational environment generally…

Section 183:

If an officer makes a written report to an employer relating to an inspection, whether or not the report includes an order, the employer must promptly

(a) post the report at the workplace to which it relates, and

(b) give a copy of the report to the joint committee or worker health and safety representative, as applicable.

POLICY
WorkSafeBC may send a warning letter when any of the criteria in Policy D12-196-1 for considering an administrative penalty have been met, and an employer has failed to exercise due diligence.

The applicable criteria from Policy D12-196-1 are as follows:

  1. The violation resulted in a high risk of serious injury, serious illness or death;

    Policy D12-196-2 sets out how to determine whether violations are high risk.


  2. The employer previously violated the same, or substantially similar, sections of the Act or Regulation (repeat violations) or the violation involves failure to comply with a previous order within a reasonable time;

    WorkSafeBC will generally consider violations at different fixed locations of a multi-site employer together to determine whether there have been repeat violations. However if a violation is a location violation, WorkSafeBC will only consider violations at that location to determine whether it qualifies as a repeat violation.

    A location violation is a violation by an employer with multiple fixed locations who, at the time of the violation, was doing all of the following:

    (a) effectively communicating with all locations regarding health and safety concerns;

    (b) providing adequate training to managers and others who implement site health and safety programs;

    (c) making local management accountable for health and safety; and

    (d) providing local management with sufficient resources for health and safety.

    Policy D12-196-3 sets out how prior violations are treated following sale or re-organization of a firm.

  3. The employer intentionally committed the violation;

  4. The employer violated section 177 of the Act;

    Section 177 states that an employer or supervisor must not, by agreement, threat, promise, inducement, persuasion or any other means, seek to discourage, impede or dissuade a worker of the employer, or a dependant of the worker, from reporting to the Board:

    (a) an injury or allegation of an injury, whether or not the injury occurred or is compensable under Part 1,

    (b) an illness, whether or not the illness exists or is an occupational disease compensable under Part 1,

    (c) a death, whether or not the death is compensable under Part 1, or

    (d) a hazardous condition or allegation of hazardous condition in any work to which this part applies.

  5. The employer violated section 186 of the Act;

    Section 186 states:

    (1) A person must provide all reasonable means in that person's power to facilitate an inspection under this Part.

    (2) A person must not

    (a) hinder, obstruct, molest or interfere with, or attempt to hinder, obstruct, molest or interfere with, an officer in the exercise of a power or the performance of a function or duty under this Part or the regulations,

    (b) knowingly provide an officer with false information, or refuse to provide information required by an officer in the exercise of the officer's powers or performance of the officer's functions or duties under this Part or the regulations, or

    (c) interfere with any monitoring equipment or device in a workplace placed or ordered to be placed there by the Board.

  6. The employer violated a stop work order (section 191 of the Act) or stop use order (section 190 of the Act); or

    Section 190 gives WorkSafeBC the authority to order equipment out of service. Section 191 gives WorkSafeBC the authority to order work to stop at all or part of a workplace, or at multiple workplaces.


  7. WorkSafeBC considers that the circumstances warrant a penalty.

When considering the appropriateness of a warning letter, some of the factors WorkSafeBC may consider are:

(a) the potential for serious injury, illness or death in the circumstances; and

(b) the likelihood that a warning letter will be sufficient to motivate the employer to comply in the future, taking into account:

(i) the extent to which the employer was or should have been aware of the hazard;

(ii) the extent to which the employer was or should have been aware that the Act or regulations were being violated;

(iii) the past compliance history of the employer; and

(iv) the effectiveness of the employer's overall program for compliance.

WorkSafeBC will, where practicable, send a copy of the letter to any union representing workers at the workplace.

WorkSafeBC will not ordinarily issue:

(a) more than one warning letter to an employer for the same or similar violations; or

(b) a warning letter to an employer that has received a penalty or has been prosecuted for the same or similar violations.

The issuance of a warning letter for a violation does not limit WorkSafeBC's ability to pursue administrative penalties, prosecution or other enforcement or compliance action for subsequent violations.

This policy relates solely to warning letters and does not affect or limit WorkSafeBC's ability to pursue administrative penalties, prosecution or other enforcement or compliance action.

PRACTICE
WorkSafeBC will advise the employer of the obligation to provide a copy of the warning letter to the joint committee and the obligation to post the warning letter in the workplace.

In the event that all the orders underlying a warning letter are cancelled, WorkSafeBC will code the warning letter as withdrawn, or the equivalent, in its systems.


EFFECTIVE DATE: May 1, 2013
AUTHORITY: ss.196(1), 111(1) and 111(2)(d), Workers Compensation Act
CROSS REFERENCES: See also Criteria for Imposing OHS Penalties (Item D12-196-1); section 183, Workers Compensation Act
HISTORY: Housekeeping amendments effective March 1, 2016 to reflect changes to the Criteria for Imposing OHS Penalties (D12-196-1) effective March 1, 2016 and formatting changes.
Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.
Policy amended effective May 1, 2013 to:
(a) clarify the criteria to issue an OHS warning letter;
(b) treat violations following a warning letter consistently with those following orders or penalties;
(c) confirm that WorkSafeBC will not ordinarily issue a warning letter to an employer after a prior warning letter, penalty, or prosecution for the same violation; and
(d) remove the requirement to mail a warning letter to the joint committee or worker representative.

Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to various parts of the Item to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:


Policy Item D12-196.1-1
RE: OHS Citations

BACKGROUND
1. Explanatory Notes

Employers are required to comply with the Act and Regulation at all times. WorkSafeBC conducts inspections and writes orders, known as OHS Compliance Orders, to address any violations. An order requires an employer to take action as soon as possible. Compliance with orders is essential to ensure that workplaces are safe.

When there is failure to comply with an order, or to prepare or send a compliance report, WorkSafeBC will expend unnecessary resources. High levels of compliance with orders allow WorkSafeBC officers to have a greater impact on health and safety.

An OHS Citation is a tool to address non-compliance with an order or failure to prepare or send a compliance report. It is an administrative penalty imposed on an employer by WorkSafeBC under section 196.1 of the Act and under the Lower Maximum Administrative Penalties Regulation (OHS Citation Regulation). OHS Citations are limited to circumstances that are not high risk (as defined by Policy D12-196-2).

An OHS Citation is different from an administrative penalty imposed on an employer under section 196 of the Act (OHS Penalty). Policy D12-196-1 sets out the criteria for an OHS Penalty.

Under the OHS Citation Regulation, an OHS Citation is $512.71 (half the maximum) for a first offence. For a subsequent violation within three years, the OHS Citation is $1,025.42 (the maximum). Both amounts are adjusted annually pursuant to the consumer price index.

Prior to issuing an OHS Citation, WorkSafeBC will first warn an employer that further failure to comply with the order may result in an OHS Citation or OHS Penalty. If the employer then fails to comply following the warning, WorkSafeBC may issue an OHS Citation or OHS Penalty.

2. The Act and Regulations

Section 196.1 of the Act:

(1) The Board may, by order, impose on an employer an administrative penalty prescribed by a regulation of the Board, which penalty must not be more than $1,025.42, if the Board is satisfied on a balance of probabilities that the employer has failed to comply with a provision of this Part, or the regulations, as specified by a regulation of the Board.

(2) If an employer requests under section 96.2 a review of a decision made under subsection (1) of this section, the employer must

(a) post a copy of the request for review at the workplace to which the administrative penalty relates,

(b) provide a copy of the request for review to the joint committee or worker health and safety representative, as applicable, and

(c) if the workers at the workplace to which the administrative penalty relates are represented by a union, provide a copy of the request for review to the union.

(3) An employer who has been ordered to pay an administrative penalty under this section must pay the amount of the penalty to the Board for deposit into the accident fund.

(4) If an administrative penalty under this section is reduced or cancelled by a Board decision, or on a review requested under section 96.2, the Board must refund the required amount to the employer out of the accident fund.

Section 115(1)(b) of the Act:

Every employer must comply with … any applicable orders.

Section 194 of the Act:

(1) An order may include a requirement for compliance reports in accordance with this section.

(2) The employer or other person directed by an order under subsection (1) must prepare a compliance report that specifies

(a) what has been done to comply with the order, and

(b) if compliance has not been achieved at the time of the report, a plan of what will be done to comply and when compliance will be achieved.

(3) If a compliance report includes a plan under subsection (2)(b), the employer or other person must also prepare a follow-up compliance report when compliance is achieved.

(4) In the case of compliance reports prepared by an employer, the employer must

(a) post a copy of the original report and any follow-up compliance reports at the workplace in the places where the order to which it relates are posted,

(b) provide a copy of the reports to the joint committee or worker health and safety representative, as applicable,

(c) if the reports relate to a workplace where workers of the employer are represented by a union, send a copy to the union, and

(d) if required by the Board, send a copy of the reports to the Board.

Section 2.4 of the OHSR:

Every person to whom an order or directive is issued by the Board must comply promptly or by the time set out in the order or directive.



OHS Citation Regulation:

LOWER MAXIMUM ADMINISTRATIVE PENALTIES REGULATION

Definition

1 In this regulation, "Act" means the Workers Compensation Act.

Administrative penalties

2 (1) In this section:

"comply" means comply with a provision of Part 3 of the Act, or the regulations, as specified in section 3 of this regulation;

"non-compliance date" means the date the Board, under section 196.1(1) of the Act, is satisfied an employer has failed to comply;

"penalty date" means the date of the order by which the Board imposes an administrative penalty under section 196.1(1) of the Act.

(2) The following administrative penalties are prescribed for the purposes of section 196.1(1) of the Act:

(a) a penalty that is half of the maximum amount allowable for an administrative penalty under section 196.1(1) of the Act, if, under that section, the Board is satisfied that an employer has failed to comply;

(b) a penalty that is the maximum amount allowable for an administrative penalty under section 196.1(1) of the Act, if, respecting an employer,

(i) the Board is satisfied the employer has failed to comply,

(ii) the non-compliance date of the failure to comply referred to in subparagraph (i) is within 3 years after the non-compliance date of a previous failure to comply by the employer, and

(iii) the penalty date of the previous failure to comply referred to in subparagraph (ii) is earlier than the penalty date of the failure to comply referred to in subparagraph (i).

Specified provisions

3 The following provisions are specified for the purposes of section 196.1(1) of the Act:

(a) section 115(1)(b) of the Act, as it pertains to orders;

(b) section 194(2), (3) or (4) of the Act if,

(i) as set out in subsection (1) of that section, an order includes a requirement for compliance reports, and

(ii) in the case of subsection (4)(d) of that section, the Board requires the employer to send a copy of the compliance reports to the Board;

(c) section 2.4 of the Occupational Health and Safety Regulation, as it pertains to orders.

POLICY
1. When An OHS Citation May Be Imposed
The OHS Citation Regulation provides that OHS Citations may be imposed for the following violations:

  • failure to comply with an order as required by section 115(1)(b) of the Act;
  • failure to prepare or send a compliance report to WorkSafeBC as required by WorkSafeBC, or meet other requirements pursuant to section 194(2), 194(3) or 194(4) of the Act; or
  • failure to comply with section 2.4 of the OHSR.

(These are referred to in the policy as Non-Compliance Violations).

Under the OHS Citation Regulation, an OHS Citation is $512.71 (half the maximum) for a first offence. For a subsequent violation within three years, the OHS Citation is $1,025.42 (the maximum). Both amounts are adjusted annually pursuant to the consumer price index.

In this policy,

Inspection Cycle means the time period that begins when WorkSafeBC first issues an order for a specific violation and ends with compliance with that order. Each order on an inspection report has its own inspection cycle
OHS Citation Warning means a written warning that an OHS Citation may be issued for non-compliance with an order or failure to prepare or send a compliance report. This warning of an OHS Citation includes a warning that an OHS Penalty may be imposed but is not an OHS Penalty Warning Letter.

WorkSafeBC may impose an OHS Citation for a Non-Compliance Violation if all of the following requirements are met on a specific Inspection Cycle:

(a) the Non-Compliance Violation is not in circumstances that are high risk;
Policy D12-196-2 sets out how to determine whether violations are high risk.

(b) the employer committed the Non-Compliance Violation after having received an OHS Citation Warning;

(c) an OHS Penalty or OHS Penalty Warning Letter has not already been imposed for the same Non-Compliance Violation or underlying violation; and
OHS Penalties are discussed in Policy D12-196-1 (and related policies) and OHS Penalty Warning Letters are discussed in Policy D12-196-11.

(d) an OHS Citation for the statutory maximum has not already been imposed.

2. Time Frame for Issuing an OHS Citation
When WorkSafeBC determines that an employer has failed to comply with a specific order and that an OHS Citation will be imposed, the OHS Citation will be imposed as soon as reasonably practicable, and ordinarily within 7 days.

3. Substitution
An OHS Citation and an OHS Penalty cannot be substituted for each other, on review or appeal.


EFFECTIVE DATE: February 1, 2016
AUTHORITY: s. 196.1, Workers Compensation Act
CROSS REFERENCES: See also Penalties – Criteria for Imposing (D12-196-1), Penalties – Prior Violations and Orders (D12-196-3).
HISTORY:  
APPLICATION: This policy applies to all violations specified in section 3 of the Lower Maximum Administrative Penalties Regulation, occurring on or after February 1, 2016.


Policy Item D12-198-1
RE: Occupational Health and Safety Injunctions

BACKGROUND
1. Explanatory Notes

Section 198 of the Act provides that the Board (operating as WorkSafeBC) can apply to the Supreme Court of British Columbia (the "Court") for an injunction to: (a) restrain a person, including a corporation, from committing a violation; (b) require a person to comply with the Act, Occupational Health and Safety Regulation ("Regulation") or an order; or (c) restrain a person from carrying on an industry, or an activity in an industry for an indefinite or limited period or until the occurrence of a specified event.

When WorkSafeBC applies to the Court for an injunction, a judge will decide whether or not to grant it.

If a person fails to comply with an injunction and is found to be in contempt of court, they may face a fine, jail sentence or other terms imposed by the Court.

2. The Act

Section 198:

(1) On application of the Board and on being satisfied that there are reasonable grounds to believe that a person

(a) has contravened or is likely to contravene this Part [Part 3 of the Act], the regulations or an order, or

(b) has failed to comply with, or is likely to fail to comply with, this Part, the regulations or an order,

the Supreme Court may grant an injunction,

(c) in the case of paragraph (a), restraining the person from continuing or committing the contravention,

(d) in the case of paragraph (b), requiring the person to comply, or

(e) in the case of paragraph (a) or (b), restraining the person from carrying on an industry, or an activity in an industry, within the scope of Part 1 for an indefinite or limited period or until the occurrence of a specified event.

(1.1) For the purposes of granting an injunction respecting a person under subsection (1)(e), a person includes the following:

(a) an individual who is a member of the board of directors of a company as a result of having been elected or appointed to that position;

(b) a person who is a member of the board of directors or other governing body of a corporation other than a company, regardless of the title by which that person is designated;

(c) the chair or any vice chair of the board of directors or other governing body of a corporation, if that chair or vice chair performs the functions of the office on a full-time basis, regardless of the title by which that person is designated;

(d) the president of a corporation, regardless of the title by which that person is designated;

(e) any vice president in charge of a principal business unit of a corporation, including sales, finance or production, regardless of the title by which that person is designated;

(f) any officer of a corporation, whether or not the officer is also a director of the corporation, who performs a policy-making function in respect of the corporation and who has the capacity to influence the direction of the corporation, regardless of the title by which that person is designated;

(g) a person who is not described in any of paragraphs (a) to (f) of this subsection but who performs the functions described in any of those paragraphs, and who participates in the management of a company or corporation, other than a person who

(i) participates in the management of the company or corporation under the direction or control of a shareholder or a person described in any of paragraphs (a) to (f),

(ii) is a lawyer, accountant or other professional whose primary participation in the management of the company or corporation is the provision of professional services to the corporation,

(iii) is, if the company or corporation is bankrupt, a trustee in bankruptcy who participates in the management of the company or corporation or exercises control over its property, rights and interests primarily for the purposes of the administration of the bankrupt's estate, or

(iv) is a receiver, receiver manager or creditor who participates in the management of the company or corporation or exercises control over any of its property, rights and interests primarily for the purposes of enforcing a debt obligation of the company or corporation.

(1.2) For the purposes of subsection (1.1), "company" and "corporation" have the same meaning as in the Business Corporations Act.

(2) An injunction under subsection (1) may be granted without notice to others if it is necessary to do so in order to protect the health or safety of workers.

(3) A contravention of this Part, the regulations or an order may be restrained under subsection (1) whether or not a penalty or other remedy has been provided by this Part.

POLICY
An injunction is a tool to achieve compliance with an order or an obligation under the Act or Regulation.

WorkSafeBC may use an injunction at the same time as other tools such as an administrative penalty or prosecution.

The following are some of the circumstances in which WorkSafeBC may consider an injunction:

(a) failure to comply with a stop work order issued under section 191 of the Act,

*Explanatory Note: A stop work order, shutting down all or part of a workplace is issued in circumstances, when, among other things there is a risk of serious injury, serious illness, or death to a worker.

(b) failure to comply with an order to stop using or stop supplying unsafe equipment under section 190 of the Act,

*Explanatory Note: A stop use order provides that an item not be used or supplied if WorkSafeBC has reasonable grounds to believe that it is not in safe operating condition or is non-compliant.

(c) failure to comply with an order other than one in (a) or (b) above, and

(d) repeated violation of the same, or similar, section of the Act or Regulation.

This does not limit WorkSafeBC's ability to pursue an injunction in other circumstances.

An injunction is an exceptional remedy to seek. WorkSafeBC may consider the following factors in determining the necessity and appropriateness of pursuing an injunction:

(a) the level of risk that might result from further non-compliance,

*Explanatory Note: If non-compliance is exposing workers to a significant risk, this supports the use of an injunction. If the risk is very low, an injunction might not be appropriate, subject to consideration of items (b) and (c) below.

(b) the impact of the non-compliance on WorkSafeBC's ability to carry out its health and safety mandate, and

*Explanatory Note: In some cases, the risk may be low or unknown but non-compliance may make it difficult or impossible for WorkSafeBC to carry out its mandate. For example, if WorkSafeBC is repeatedly refused entry to a workplace, an injunction may be necessary to ensure that WorkSafeBC can inspect that workplace.

(c) the effectiveness of other tools to obtain compliance in the circumstances.

*Explanatory Note: This involves considering what tools, such as orders and penalties, would be effective to achieve compliance as well as looking at the effectiveness of the tools already used.

In some cases, follow up by WorkSafeBC may be sufficient to obtain compliance. An administrative penalty or prosecution, or the prospect of either may also be sufficient to do so. In most cases of non-compliance with an order, WorkSafeBC will likely use tools other than an OHS Injunction to obtain compliance.

Enforcement tools have their limitations, however. Administrative penalties can be imposed very quickly in urgent circumstances but apply only to employers. This may provide little deterrence to the principal of a corporation with minimal assets. Prosecutions can be used for both employers and workers but are slower due to the inherent time requirements of the process.

Injunctions have the advantage of timeliness and broad application. If necessary, an injunction can be obtained quickly and can apply both to individuals and to corporations. The injunction itself and the need to appear before the court may result in a higher level of compliance than from a Board order alone. A further advantage is that non-compliance with an injunction (contempt of court) can be dealt with fairly quickly and can result in significant consequences, including fines or jail.

* The explanatory notes are to provide additional explanation of the factors but are not themselves policy.

PRACTICE
The President's Assignment of Authority states that injunction applications must be approved by WorkSafeBC's President/Chief Executive Officer. WorkSafeBC lawyers apply to the Court for the injunction. The Court then decides whether to grant an injunction.

Applications Without Notice

WorkSafeBC's normal practice is to provide notice whenever possible before the application is made.

Although the Act states that injunction applications may be made without notice, this will be done rarely and generally only in circumstances of extraordinary urgency. Court decisions state that there must be a very significant reason to proceed without notice to the other party.


EFFECTIVE DATE: December 1, 2011
AUTHORITY: s. 198, Workers Compensation Act
CROSS REFERENCES: ss. 115(1)(b), 190, 191 Workers Compensation Act
s. 2.4, Occupational Health and Safety Regulation
HISTORY: Housekeeping amendments to Background Section effective May 27, 2015 to reflect changes to the Workers Compensation Act.

Policy in effect December 1, 2011.
APPLICATION: This policy is applicable to all decisions to pursue an injunction made after the effective date.


Policies Workers Compensation Act Part 1 Division 1 - Imposition of Levies

Certain provisions from Part 1 of the Workers Compensation Act have occupational health and safety implications.

The Items for these provisions have been grouped here using the prefix D24.

Policy Item D24-2-1
RE: Imposition of Levies - Independent Operators

BACKGROUND
1. Explanatory Notes
In directing that Part 1 applies to independent operators, the Board may specify the applicable health and safety obligations.

2. The Act
Section 2(2):

The Board may direct that this Part [i.e., Part 1] applies on the terms specified in the Board's direction

(a)to an independent operator who is neither an employer nor a worker as though the independent operator was a worker ….

POLICY
If an independent operator to whom Part 1 applies under section 2(2) violates the occupational health and safety obligations set out in the Board's direction, the Board may levy an administrative penalty against the independent operator.

Where appropriate, the Board will apply the policies and practices set out in the following Items to an administrative penalty levied against an independent operator to whom Part 1 applies under Section 2(2):

  • D12-196-1, -2, -3, -6;
  • D12-196-8; and
  • D12-196-10, -11.

EFFECTIVE DATE: March 3, 2003
AUTHORITY: s. 2(2), Workers Compensation Act
CROSS REFERENCES:
HISTORY: Housekeeping changes effective September 15, 2010 to remove reference to D16-223-1, delete practice reference and make formatting changes.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the policy statement to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:

Policies Workers Compensation Act Part 1 Division 5 - Charging of Claim Costs

Certain provisions from Part 1 of the Workers Compensation Act have occupational health and safety implications.

The Items for these provisions have been grouped here using the prefix D24.

Policy Item D24-73-1
RE: Claims Cost Levies

BACKGROUND
1. Explanatory Notes
Section 73 authorizes WorkSafeBC to charge claims costs to the employer in certain circumstances. The maximum amount WorkSafeBC may levy is adjusted annually in accordance with the Consumer Price Index under section 25 of the Act. Starting January 1, 2017, the maximum amount is $55,810.03.

2. The Act
Section 73:

(1) If

(a) an injury, death or disablement from occupational disease in respect of which compensation is payable occurs to a worker, and

(b) the Board considers that this was due substantially to

(i) the gross negligence of an employer,

(ii) the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases, or

(iii) the failure of an employer to comply with the orders or directions of the Board, or with the regulations made under Part 3 of this Act,

the Board may levy and collect from that employer as a contribution to the accident fund all or part of the amount of the compensation payable in respect of the injury, death or occupational disease, to a maximum of $55,810.03.

(2) The payment of an amount levied under subsection (1) may be enforced in the same manner as the payment of an assessment may be enforced.

POLICY
This section may be applied if:

(a) a worker dies, is seriously injured, or is disabled from occupational disease;

(b) this is substantially due to

(i) the gross negligence of an employer,

(ii) the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases, or

(iii) the failure of an employer to comply with the orders or directions of WorkSafeBC, or with the Occupational Health and Safety Regulation;

(c) the grounds for an administrative penalty under Item D12-196-1 are met; and

(d) the employer has failed to establish that the employer exercised due diligence.

WorkSafeBC has discretion as to the amount charged under section 73(1) up to the maximum amount. A decision to charge claim costs may include the cost of future amounts of compensation that may be incurred after the decision if those future costs result from matters currently under consideration by WorkSafeBC, the Review Division or the Workers' Compensation Appeal Tribunal.


EFFECTIVE DATE: March 1, 2016
AUTHORITY: s. 73(1), Workers Compensation Act
CROSS REFERENCES: See also Accident Reporting and Investigation (Item D10-172-1); Criteria for Imposing OHS Penalties (Item D12-196-1);
HISTORY: Changes effective March 1, 2016 to the criteria for a claims cost levy.
Housekeeping changes effective September 15, 2010 to remove reference to D16-223-1, update maximum claims cost levy amount, replace Worker and Employer Services Division with the Board, delete practice reference and make formatting changes.
Item developed to align prevention policy with section 73(1) of the Workers Compensation Act so that the Board's discretion as to the amount of the claim cost levy is not fettered, effective July 1, 2008. This change applied to all decisions, including appellate decisions, to charge claim costs on and after July 1, 2008.
Consequential changes subsequently made to the policy statement to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective December 31, 2003 a consequential change was made to include a reference to new Item D12-196-4 and the maximum amount referenced in section 73(1) was updated.
Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999.
APPLICATION: This policy applies to all violations occurring on and after March 1, 2016.

Disclaimer: The Workers' Compensation Board of B.C. ("WorkSafeBC") publishes the online version Occupational Health and Safety Regulation ("OHS Regulation") in accordance with its mandate under the Workers Compensation Act to provide information and promote public awareness of occupational health and safety matters. The online OHS Regulation is not the official version of the OHS Regulation, which may be purchased from Crown Publications. WorkSafeBC endeavours to update the online OHS Regulation as soon as possible following any legislative amendments. However, WorkSafeBC does not warrant the accuracy or the completeness of the online OHS Regulation, and neither WorkSafeBC nor its board of directors, employees or agents shall be liable to any person for any loss or damage of any nature, whether arising out of negligence or otherwise, arising from the use of the online OHS Regulation. Employers are legally obligated to make a copy of the Workers Compensation Act and the OHS Regulation readily available for review by workers. The circumstances under which WorkSafeBC may consider an employer's providing access to electronic versions of the Act and OHS Regulation to have satisfied this obligation are described in Guideline G-D3-115(2)(f).