CONTENTS
Monday 28 November 1994
Workers' Compensation and Occupational Health and Safety Amendment Act, 1994, Bill 165, Mr Mackenzie / Loi de 1994 modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail, projet de loi 165, M. Mackenzie
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président: Wood, Len (Cochrane North/-Nord ND)
Conway, Sean G. (Renfrew North/-Nord L)
*Fawcett, Joan M. (Northumberland L)
*Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
*Martel, Shelley, (Sudbury East/-Est ND)
*Mills, Gordon (Durham East/-Est ND)
*Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
*Waters, Daniel (Muskoka-Georgian Bay ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Carr, Gary (Oakville South/-Sud PC) for Mr Turnbull
Fletcher, Derek (Guelph ND) for Mr Wood
Hansen, Ron (Lincoln ND) for Mr Wood
Mahoney, Steven W. (Mississauga West/-Ouest L) for Mr Conway
Also taking part / Autres participants et participantes:
Ministry of Labour:
Murdock, Sharon, parliamentary assistant to the minister
Toker, Mitchell, manager, workers' compensation unit
Clerk / Greffière: Manikel, Tannis
Staff / Personnel: Hopkins, Laura, legislative counsel
The committee met at 1548 in committee room 1.
WORKERS' COMPENSATION AND OCCUPATIONAL HEALTH AND SAFETY AMENDMENT ACT, 1994 / LOI DE 1994 MODIFIANT LA LOI SUR LES ACCIDENTS DU TRAVAIL ET LA LOI SUR LA SANTÉ ET LA SÉCURITÉ AU TRAVAIL
Consideration of Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act / Projet de loi 165, Loi modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail.
The Chair (Mr Mike Cooper): We're continuing our clause-by-clause analysis of Bill 165. Just a reminder to the committee members that under the motion that was passed in the House, at 4 pm we'll be starting to vote without debate on all motions, and all motions will be deemed to have been moved. We left off on a government motion by Ms Murdock.
Mr Steven W. Mahoney (Mississauga West): Just on a point of clarification, since we have a number of people in the committee room today, it should just be clear that we're operating under a time allocation motion passed in the Legislature which fundamentally says that we can debate issues on this bill for about the next 12 minutes and then every question will be put.
Just to avoid people misunderstanding that the government has brought in closure, time allocation, whatever you want to call it, this debate is fundamentally over and will move into the Legislature for one two-and-a-half-hour debate, which I believe is scheduled to take place one week from today.
If members of the public, many of whom are injured workers, are here today to hear some kind of debate on substantive issues around reform of workers' compensation, I just want them to know that the NDP government has shut down this committee and shut down the process.
The Chair: Debate on the motion by Ms Murdock?
Ms Sharon Murdock (Sudbury): I would point out that we've been in clause-by-clause for one full week and three other weeks, so we're shutting it down, using the terminology, but we're shutting it down because we have been at this long enough.
Section 28 of the bill:
I move that subsection 103.1(2) of the Workers' Compensation Act --
The Chair: It's already been moved, Ms Murdock.
Ms Murdock: Oh, it has been?
The Chair: Yes.
Ms Murdock: If we can go to the two prior motions, one by the Liberals and one by the Conservatives, we explained in detail how that would work and why we were doing it in this section. But for the benefit of the people in the audience, it's intended to closely parallel the agreement regarding developing a template of best practices for the board's experience rating programs.
In its experience rating programs, of which we heard much during the public hearings, the Workers' Compensation Board uses the employer's cost record and accident frequency to determine an employer's performance in relation to the rest of its rate group. Employers with good accident records are issued rebates under these programs and the poor performers are issued surcharges. Therefore, we feel that the experience rating programs are results-driven.
In order to augment the current experience rating programs by providing incentives for good health and safety, vocational rehab and return-to-work practices, the government has introduced an amendment which will allow the WCB to use those criteria to adjust an employer's refund or surcharge position, and the wording from that is used exactly out of the PLMAC agreement, as was discussed by labour and management.
Mr Gary Carr (Oakville South): If you could jog my memory on the difference between the amendments, the difference between the proposals, between what the Liberals --
Ms Murdock: Yours was to not have any surcharge at all. That was the concern.
Mr Carr: I was thinking more of the Liberals'; I knew ours. What was the difference there?
Ms Murdock: I have to go back. The Liberal motion was:
"surcharges are imposed only on employers whose accident record for the previous year exceeds the industry average for that year...; and
"refunds are available only to employers whose accident records for the previous year is below the industry average...."
Mr Carr: Wasn't it true that during some of the hearings a lot of people came forward and said they wanted to keep the experience rating? What was your recollection during the hearings?
Ms Murdock: Wanted to? I'm sorry; I didn't hear you.
Mr Carr: To keep the experience rating and that the merit rating programs be left alone. Isn't that what we heard in a lot of the hearings?
Ms Murdock: Yes, we certainly did. They were concerned particularly with the preamble of subsection 103.1(2), "Determination of refund or surcharge," in our amendment. They wanted it very clearly stated about work injury frequency and accident cost, and we did that. That was one of the other things. We're not agreeing with the presenters who came before us that employers who do not have good health and safety practices etc should not be surcharged. Actually, they weren't arguing about the surcharge. What they were saying to us during the public hearings was that this was very important in terms of rebate, and we have not removed that. We have now given four areas which can be looked at in determining how to determine that surcharge or that rebate.
Mr Carr: But this gives you more power to eliminate refunds or increase surcharges, doesn't it, the way it's written?
Ms Murdock: Well, no.
Mr Carr: Isn't that what the intent is?
Ms Murdock: They had the power to do it before. There was a surcharge, but there wasn't any kind of a method. There was nothing in the existing legislation that gave you parameters to judge by, so what we're doing in subsection (3) of this is giving the areas that employers and labour and management agreed to were the areas the Workers' Compensation Board should be looking at in a workplace to determine whether or not anything is being done in terms of determining the surcharge, if there is a surcharge. If their accident rate is down and their health and safety practices are good, then they will probably continue getting a rebate.
Mr Carr: This gets into the big debate we had before. You say you can already do it, so why do you want this amendment? I know we went around that one for a long time, which I don't want to revisit and go through, but if you already have existing power to do it, then why this amendment?
Ms Murdock: What they were coming before us and telling us during the public hearings was that the amendment in Bill 165 did not specifically use that wording from the PLMAC agreement. Upon the recommendation of the people who came before the hearings, we have delineated that as well as listening to them in regard to looking at injury frequency and accident cost, which were the two areas that they were very concerned about. They wanted it clarified. So this government amendment to our bill is clarifying that.
Mr Carr: In your mind, does this give more of an incentive to return-to-work opportunities?
Ms Murdock: No, I would say it gives more of an incentive for employers who are not looking at the NEER program to get involved in it and start working on their health and safety practices. That's what I would say.
Mr Carr: The way it's written here, if they don't, they'll face increased surcharges.
Ms Murdock: Depending on what they're doing under (a), (b), (c) and (d).
Mr Carr: Right now you can increase the surcharges? You say you can or you can't?
Ms Murdock: I don't know.
Mr Carr: Legally, do you know?
Mr Mitchell Toker: The current experience rating program is operated on the basis of accident costs and injury frequency. Currently, surcharges or rebates are generated on the experience a particular employer would have with respect to those two criteria. What we've done here in subsection (2) is confirm that accident costs and injury frequency remain the main criteria to be used in experience rating and in subsection (3) identify the additional criteria that will be used to adjust the surcharges either up or down based on practices in the area of health and safety, return to work and vocational rehabilitation.
Mr Mahoney: I guess the frustration with this whole section and with this amendment particularly leads from the sort of artificial attempts -- if you'll notice, through the amendment they refer to "practices and programs" and "safety practices and other programs." They refer to "rehabilitation practices and programs" and "practices and programs of the employer to assist workers to return to work."
Rather than actually focusing on the results and what is being done, it appears that there's a great attempt by this government to have Workplace Health and Safety Agency models all over the place, and as long as the workplace has got all these so-called wonderful practices and programs in place, it doesn't much matter whether or not they're getting injured workers back to work, whether or not they're reducing accidents. You're not measuring it in terms of actually seeing injured workers back to work -- modified work, the same work that they were doing before, alternative work, that type of thing.
These are clear-cut things that can be measured, rather than, do we have a practice or do we have a program, are we running educational seminars in classrooms or whatever? Not to say that those are not good things to do; they are. It would be the hope of anybody that if you educated management and workers together, you would improve the level of safety in the workplace. But the real focus here should be on reducing accidents and returning injured workers back into the workplace so that they can get their jobs back and retain their dignity and get on with their lives.
I don't see how this amendment does anything other than add to what I frankly think is a typical philosophical bent of the New Democrats to put in more "practices and programs." It's quite clear to me when you see the function. We hear the people involved with the agency bragging of the success of the health and safety agency all the time, and you would assume -- because Bill 208 was Liberal legislation, we believe in the legislation -- that implementing that bill and putting in place programs in the workplace would lead to a reduction in accidents and a better return to work, and therefore your off-balance wouldn't be as great as it is in this particular program. Instead, you're bringing in these magical, mystical solutions of "practices and programs."
The one that scares the hell out of me is (d), "such other matters as the board considers appropriate." What in the world does that mean? We're going to invent some kind of new bipartite board or whatever if the Workers' Compensation Board decides or the government of the day, be it yours, ours or a future government, whoever, decides that it wants to set up some nice little perk for some of its friends to get involved in health and safety training: whatever they want to do, whatever they consider appropriate.
1600
When you combine that with the fact that the minister in this legislation gets complete control of the ship for one year, the potential for politicization of the workers' compensation system is right here, right in this amendment. It is absolutely clear, it is dangerous, and there's no need to be putting this kind of situation into place in the province of Ontario. We'll be voting strongly against this.
We're quite prepared to say that maybe our solution, the amendment we put forward dealing with averages, isn't the easiest and isn't the easiest to measure, but why can't we deal with substantive, constructive, factual statistics that show whether or not there's been a reduction in accidents and an improvement in early return-to-work programs put in place, and actually not just the programs but the results? This has got to be result-oriented.
I'm afraid that your government, Madam Parliamentary Assistant, is so bent on establishing philosophical criteria for how to run the Workers' Compensation Board that you can't see the forest for the trees. Injured workers want to return to work. Good employers want them to return to work, because it's cost-effective for them to return to work. So why not measure this program, and if somebody is not successful in returning injured workers to work, they should be hammered. Absolutely no question about it. Any company that refuses to put in place early return to work should be dealt with in the stiffest possible way.
The Chair: Thank you, Mr Mahoney.
Mr Mahoney: But as is also appropriate, there should be benefits to a company that's prepared to cooperate with the injured workers and get them back to work. You're totally negating that with this amendment.
The Chair: Thank you. It now being 4 o'clock --
Mr Mahoney: Once again I'm being shut off because it's 4 o'clock, ladies and gentlemen. They're shutting this joint down right now. You're watching democracy in action right here.
The Chair: Thank you, Mr Mahoney. It now being 4 o'clock, we will proceed with all the votes necessary to complete this bill.
On the government motion by Ms Murdock, all those in favour? Opposed? Carried.
On the Liberal motion deemed to be moved, all those in favour? Opposed? Defeated.
Shall section 28, as amended, carry? All those in favour? Opposed? Carried.
Shall section 29 carry? All those in favour? Opposed? Carried.
Shall section 30 carry? All those in favour? Opposed? Carried.
On government motion number 68, shall the motion carry? All those in favour? Opposed? Carried.
Shall section 31, as amended, carry? All those in favour? Opposed? Carried.
On section 32, PC motion 69, all those in favour? Opposed? Defeated.
PC motion number 70: All those in favour?
Mr Carr: On a point of order, Mr Chair: Can any of these be recorded?
The Chair: Yes, you can call for a recorded vote.
Mr Carr: A recorded vote on this.
The Chair: All those in favour of PC motion number 70?
Mr Mahoney: I move for a 20-minute recess.
The Chair: This committee stands recessed for 20 minutes.
The committee recessed from 1606 to 1627.
The Chair: I call this committee back to order.
Mr Carr has called for a recorded vote on PC motion 70. All those in favour of the motion?
Ayes
Carr.
The Chair: Opposed?
Nays
Fawcett, Hansen, Klopp, Mahoney, Martel, Mills, Murdock (Sudbury), Offer, Waters.
The Chair: The motion is defeated.
Government motion, replacement 71. All those in favour? Opposed? Carried.
Shall section 32, as amended, carry? All those in favour? Opposed? Carried.
The members are being called to the House for a vote.
Mr Mahoney: We could at least deal with our motion that strikes out the 4% cap in the Friedland, which is the next motion that I think some of the folks who are here would probably like to see us vote on.
Mr Steven Offer (Mississauga North): We should have a recorded vote on that.
Mr Mahoney: A recorded vote on that one, yes.
The Chair: On the Liberal motion number 72 --
Mr Mahoney: To eliminate the cap.
The Chair: All those in favour? Recorded vote.
Ayes
Carr, Fawcett, Mahoney, Offer.
Interjections.
The Chair: Order, please. Opposed?
Nays
Hansen, Klopp, Martel, Mills, Murdock (Sudbury), Waters.
The Chair: The motion is defeated.
This committee stands recessed until immediately following the vote in the House.
The committee recessed from 1630 to 1644.
The Chair: I would like to call this committee back to order. Continuing on section 33, we have a government motion, number 73. All those in favour? Opposed? Defeated -- oh, carried. Sorry.
Mr Mahoney: I wasn't going to say anything.
The Chair: My apologies. That motion was carried.
Mr Mahoney: Hansard shows it was defeated.
Interjection: It shows where your mind is.
The Chair: The Chair did correct himself.
Okay, on the next government motion, 74.
Mr Mahoney: Mr Chairman, could you take the vote that you called again?
The Chair: Called previous?
Mr Offer: Yes, you've got to do it again.
Mr Paul Klopp (Huron): No, you can't.
Mr Mahoney: Why not?
The Chair: Okay, just to make it clear, just to note, Ms Fawcett was not here.
Mr Offer: Are you challenging the Chair?
The Chair: Ms Fawcett was not in the room.
Mr Mahoney: Just to be safe, have a recorded vote.
Mr Derek Fletcher (Guelph): Mr Chair, I call a 10-minute recess.
Mr Mahoney: Recorded vote, Mr Chair.
Mr Fletcher: On a point of order.
The Chair: We cannot entertain a point of order.
Mr Offer: It's your stupid government's time allocation motion.
Mr Fletcher: But you can't vote on something you've already voted on.
The Chair: The Chair did make a mistake. It was carried five to four.
Mr Fletcher: Right, and that was cleared up; it was a slip of the tongue.
The Chair: I apologize for that. On the next government motion, 74.
Mr Mahoney: Recorded vote.
The Chair: A recorded vote. All those in favour?
Ayes
Fletcher, Klopp, Martel, Murdock (Sudbury), Waters.
The Chair: Opposed?
Nays
Carr, Fawcett, Jordan, Mahoney, Offer. Mr Mahoney: It's a tied vote, Mr Chairman.
The Chair: As the Chair, I have to maintain the status quo, so I'll have to vote against the government motion and go with the original bill.
Mr Mahoney: So it's defeated.
The Chair: So it's defeated.
Mr Fletcher: Can we have another vote on that? I think you made a mistake, a slip of the tongue.
The Chair: We are on subsection 33(2). That motion is defeated.
Shall section 33, as amended, carry? All those in favour? Down. Opposed? Carried.
Mr Mahoney: Is it necessary, after they've voted, that you tell them to put their hands down?
The Chair: It makes it easier, just so there's no confusion.
Shall section 34 carry? Carried.
Shall section 35 carry? Carried.
Shall section 36 carry? Carried.
Back to section 7.
Mr Mahoney: Is this the replacement motion?
The Chair: Government motion number 14, moved by Ms Murdock and stood down on September 29. All those in favour? Opposed? The motion is defeated.
We have a government replacement motion, version number 2. All those in favour? Opposed? Carried.
Shall section 7, as amended, carry? Carried.
Shall the title of the bill carry? Carried.
Shall the bill, as amended, carry?
Mr Offer: Recorded vote.
The Chair: All those in favour?
Ayes
Fletcher, Klopp, Martel, Mills, Murdock (Sudbury), Waters.
The Chair: All those opposed?
Nays
Carr, Fawcett, Jordan, Mahoney, Offer.
The Chair: Carried.
Shall I report the bill? Agreed.
Seeing no further business before this committee, just a reminder that there will be a subcommittee meeting immediately following, but this committee stands adjourned to the call of the Chair.
The committee adjourned at 1651.