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Labour group gives Manitoba failing mark for safety enforcement

By Linda Johnson
| www.cos-mag.com

Manitoba may have tough workplace health and safety laws, but its Ministry of Labour seems increasingly reluctant to enforce them, according to a safety watchdog group.

Working Families Manitoba (WFM), a campaign of the Manitoba Federation of Labour, says the ministry did not impose a single financial penalty for workplace safety violations last year — even though 965 employers had failed to comply with safety improvement orders.

In addition, the number of fines for serious violations (fines issued after an incident) dropped from an average of 14 per year to one — which was a $15,000 fine imposed on a company for failing to ensure an electrical panel had been de-energized before work began.

“We were incredibly disappointed,” says Kevin Rebeck, president of the Manitoba Federation of Labour.

“We have some good laws here, and to see that they’re not being utilized in the way they’re intended to be — that almost 1,000 employers were ignoring the law and not being fined — was disappointing.”

The enforcement statistics, covering April 2011 to April 2012, was obtained by WFM through freedom of information and released as part of its annual “report card” on workplace safety and health.

Rebeck says that not enforcing the law simply encourages non-compliance. And, he adds, it is especially important that the ministry take punitive action when an employer does not comply with an improvement order because it is, in effect, their second transgression.

By law, an inspector who finds a safety violation must first issue an order. Only if the employer fails to remedy the problem within a specified time can an administrative penalty — a fine not exceeding $5,000 — be imposed.

“These are employers that were told already. The improvement order is their free pass, when they’re told, ‘Something’s not working right. We see that it isn’t. Get it fixed.’”

“When [inspectors] came back a second time, and they still hadn’t acted on the improvement order — they didn’t make sure people had safety harnesses or didn’t make a first aid kit available — they were given a second free pass.”

However, Jo-Anna Guerra, executive director of Workplace Safety and Health (WSH), a division of Manitoba Family Services and Labour, says the government has had many successes with its enforcement activities. The WSH enforces the Workplace Safety and Insurance Act through a number of tools: workplace inspections, stop work orders, improvement orders, administrative penalties and prosecution.

During the last five years, she says, the number of safety and health officers conducting inspections has increased. In fact, the number of inspections last year reached a record 12,838, which resulted in 11,741 improvement orders and 297 stop work orders.

“The increased presence of these officers in the workplace serves to enhance compliance with the legislation and promote safety and health at work. Workplace Safety and Health’s efforts have contributed to the 41 per cent reduction in the time-loss injury rate in the province since 2000,” she says.

Guerra says Manitoba Family Services and Labour has undertaken a comprehensive review of prevention activities. The review will encompass the legislated five-year review of the Workplace Safety and Health Act and the Workers’ Compensation Board rate-setting model, as well as injury prevention initiatives, including public awareness, employer engagement and education and training activities. The results will be used to develop a five-year injury prevention strategy for the province.

WSH has also hired a director of investigations to oversee the Workplace Safety and Health's investigation team, she adds. There have already been four successful prosecutions in 2012–13, and seven cases are currently before the court.

In addition to enforcement, WFM’s report card also grades the province on the strength of its health and safety rules, injury prevention and workers’ compensation.

While critical of the lack of financial penalties imposed (which resulted in a grade of D for enforcement), WFM concluded the government had made progress in other aspects of this area. They noted, for example, the increase in inspections — 1,433 more in 2011 than in the year before, an increase of 12 per cent. As well, the Manitoba government in May announced it will modify policies to ensure every fatality is investigated according to Bill C-45, or the “Westray Law,” under which any employer found responsible for a workplace death can face criminal charges and be sentenced to prison.

The province received its highest grade (A-) in the safety rule category. Mining safety laws have been strengthened, WFM says, and in August 2011, Manitoba enacted additional workplace violence regulations that require employers in high-risk sectors to take greater steps to protect workers.

Reviewing injury prevention (graded B+), the group praised the government’s decision to increase funding for its SAFE Work public information campaign by 15 per cent to $1.5 million. They also welcomed the recent creation of a chief prevention officer (CPO) position in the province.

The position of CPO was introduced for the first time in Manitoba in April 2012 to help co-ordinate prevention activities between Workplace Safety and Health and the Workers’ Compensation Board, and to assist in providing clear direction on injury prevention priorities, Jennifer Howard, Family Services and Labour Minister, said in announcing the position.

The new CPO, Don Hurst, served as assistant deputy minister of Workplace Safety and Health from 2004 to 2012. As part of the ministry’s comprehensive review, one of Hurst’s first duties will be to co-ordinate a review of injury prevention activities, including public awareness initiatives, employer engagement and education and training services, a spokesperson for the ministry says.

While they welcome the establishment of the CPO position, WFM says they also hope Hurst will have “legislatively protected autonomy” and enough resources to be able to properly carry out his responsibilities. Rebeck says he expects Hurst will play a key role in the ministry’s prevention assessment reviews, including one on the WCB.

“We’re encouraged by that, and we’re looking forward to meeting with him as he sorts out his role. It’s one we want to keep our eye on,” he says.

“Anytime [the government] dedicates someone who is going to be focused in an area like prevention, we’re pleased.”

The government’s handling of workers’ compensation received a low grade (B-) due to its failure to take comprehensive action to stop claim suppression by employers seeking lower premiums and rebates, WFM says. While the workers’ compensation board reports a 40 per cent decrease in the time-loss injury rate over the past decade, the group comments in the report card, it is hard to believe workplaces have become 40 per cent safer.

“We have grave concerns about claim suppression,” Rebeck says. “We feel a lot of employers out there have found a way to game the system. If the issue for the WCB is how many accidents are reported from my workplace, then, rather than make my workplace safer, the other alternative is to make sure no one reports. I might do that through intimidation, through misinformation, by creating a culture of peer pressure.”

“We think the system shouldn’t reward that. The system instead should have some rewards for having health and safety committees that workers serve on, and when they give advice and direction, the employer acts on that. There should be rewards for actually making the workplace safer,” he says.

In its report card, WFM calls for a thorough, independent and public review of the system “to evaluate its effectiveness in achieving its stated goal — promoting safer workplaces.”

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