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Guidelines Workers Compensation Act

Guidelines Workers Compensation Act - Contents

Guidelines Workers Compensation Act Part 3 Division 1

G-D1-108-1 Board jurisdiction over operations involving Aboriginal people

Issued: September 28, 2005

Regulatory excerpt
Section 108 of the Workers Compensation Act ("Act") provides:

(1) Subject to subsection (2), this Part applies to
...
(b) every employer and worker whose occupational health and safety are ordinarily within the jurisdiction of the Provincial government, and
...

Policy Item D1-108-1 provides:

(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.

Purpose of guideline
The purpose of this guideline is to clarify the authority of the Board over the occupational health and safety (OH&S) of organizations that are operated by Aboriginal people or employ Aboriginal workers, or which are located on Indian reserves.

Summary
The Board has jurisdiction over the OH&S of employers operating in B.C. until it can be established otherwise. With respect to organizations involving Aboriginal people or located on an Indian reserve, the federal government, and not the Board, will have jurisdiction over:

Activities undertaken by an Indian band or band council, or an organization that is operated directly by or closely integrated with an Indian band or band council, that are related to the administration or governance of the band or the reserve.
An organization that is engaged in activities that are closely connected with Indian status, rights or identity.

Jurisdiction remains with the Board where the operations in question are not linked to band administration or Indian status, rights or identity.

Ordinary commercial operations will fall under Board jurisdiction, even where the workers or owners of the business are Aboriginal people, or the business is located on a reserve.

A Board prevention officer faced with the assertion that OH&S enforcement infringes an Aboriginal or treaty right should refer the matter to his or her manager.

Jurisdiction over "Indians" and OH&S
The Constitution Act, 1867 lists exclusive areas in which each of the federal and provincial governments may enact laws. OH&S laws are considered to fall under the provincial authority over "property and civil rights."

Though there is a presumption that OH&S falls under provincial jurisdiction, if it can be established that an organization operates predominantly in an area the Constitution provides is to be regulated by the federal government, the OH&S of that organization will fall under federal jurisdiction and the Board will have no jurisdiction.

One area listed in the Constitution as falling under federal jurisdiction is "Indians and lands reserved for the Indians". The federal government regulates this area through the Indian Act, which defines the legal rights of Indians, establishes and regulates Indian reserves, establishes band councils to administer reserves, and describes a number of things that a band council is empowered to do.

While the federal government has the exclusive power to enact laws relating to "Indians", this does not mean that only laws enacted by the federal government can apply to Aboriginal people. Provincial laws of "general application," like OH&S laws, will apply to Aboriginal people and organizations that are owned by Aboriginal people or employ Aboriginal workers, or which operate on a reserve, unless it can be said that regulating the labour relations of the organization is integral to regulating "Indians and the lands reserved for Indians."

In this regard the federal government, and not the Board, will have jurisdiction over band councils, or organizations integrated with them, that:

Are carrying out activities that relate to the administration and governance of reserves and band members in accordance with the authority granted band councils under the Indian Act.
Are carrying out activities that relate to Indian status, rights or identity.

Examples of situations where the federal government, and not the Board, will have jurisdiction include:

Workers employed by a band who carry out construction work on reserve residences or provide other municipal services exclusively on an Indian reserve.
Law enforcement officers on an Indian reserve operating under the authority of a band.
Health services organizations on an Indian reserve, provided the organization is operated by, or under the authority of the band, and the clientele is predominantly "Indian".
Social service agencies operated by, or under the authority of a band, provided the target clientele is predominantly "Indian".

Note that the determination of Board jurisdiction over OH&S under Part 3 of the Act is separate from the requirement for employers to pay assessments to the Board and the entitlement of workers to compensation for work related injury or illness under Part 1 of the Act; that is, the Board may not have jurisdiction over the OH&S of an organization, even though the organization is required to be registered as an employer with the Board.

Subsidiary organizations and contractors
Band councils will often delegate to separate organizations or engage contractors to perform tasks associated with the band administration. Such organizations may fall under federal jurisdiction if:

They themselves can be said to be federal organizations, that is if they exist predominantly for the purposes of carrying out functions relating to the band council's mandate and their operations are predominantly dedicated to carrying out these functions.
There is a "high degree" of operational integration with a federally regulated organization, or if the contractor forms an integral part of a federally regulated enterprise.
If the federally regulated organization is dependent on the provincial enterprise to carry out its federally regulated tasks.

In determining jurisdiction over contractors engaged in activities on an Indian reserve or connected to a band's operations or authority, prevention officers should determine the nature of the contractor's business on an ongoing basis, and assess whether the above factors are present.

Board jurisdiction
While the activities of bands or band councils in governing and administering reserves will fall under federal jurisdiction, not all activities carried out by a band or by a band council are necessarily federally regulated. The OH&S of ordinary commercial activities, even if carried out directly by an Indian band or located on a reserve will not normally be federally regulated and will fall under Board jurisdiction.

Examples where the Board will have jurisdiction over organizations operated by Aboriginal people include:

Forestry operations.
Commercial fishing.
Recreational guiding operations.
Manufacturing, services, or other commercial/industrial activities, whether on reserve or off.

Aboriginal and treaty rights, the Nisga'a Treaty and self government
Prevention officers may encounter situations where there is an assertion that the Board does not have jurisdiction because the activity in question relates to an Aboriginal or treaty right, or that the activity falls under a band's right to self government.

While Aboriginal and treaty rights are protected under the Constitution, it is unlikely that Board enforcement activities would be undertaken in a way that would infringe those rights.

With respect to the Nisga'a Treaty, that Treaty explicitly sets out that it does not affect federal or provincial jurisdiction in respect of OH&S. However, the Treaty provides that the Nisga'a government must have notice of industrial relations proceedings involving individuals employed on Nisga'a lands where an issue relating to the Treaty or Nisga'a culture has been raised. This right to notification probably extends to enforcement activities by the Board.

One band in British Columbia, the Sechelt Band, has formally established the right to self government. However, under this arrangement, the laws of general application of Canada and British Columbia continue to apply, and therefore the Board is not precluded from asserting its jurisdiction over OH&S enforcement.

Prevention officers should engage in enforcement activities under the presumption that the enforcement activity is not precluded as the result of the existence of a treaty or Aboriginal right. A prevention officer faced with the assertion that OH&S enforcement infringes an Aboriginal or treaty right or a right to self government should refer the matter to his or her manager.

What should prevention officers consider?
The following questions may assist in determining if jurisdiction over an employer or workplace involving Aboriginal people rests with the federal government:

Is the operation run by a band council?
What is the nature of the operation? Is it a commercial enterprise? Does it carry out tasks related to band or reserve administration or governance(see above - i.e. policing, municipal services, governance, providing reserve housing, or health care)?
If the organization is a contractor/subsidiary, what is the nature of the organization's normal activities? Does the organization have a permanent and very close relationship with a band council? Is the council dependent on the contractor/subsidiary to carry out tasks relating to governance or administration?
Does the organization have a purpose of benefiting band members or first nations?

G-D1-108 - 2 BC Safety Authority

Issued October 26, 2005; Revised February 13, 2006; Revised October 19, 2007

Regulatory excerpt
Section 108(1) of the Workers Compensation Act ("Act") states:

(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.

Purpose of guideline
The purpose of this guideline is to describe the authority of the BC Safety Authority ("Authority") and its relationship to WorkSafeBC.

History of the Authority
On April 1, 2004, the Authority took jurisdiction over the public safety aspects of various equipment and systems through the provisions of the Safety Standards Act. This transferred the existing safety operation component of the Safety Engineering Services Division, Ministry of Community, Aboriginal and Women's Services (MCAWS) to the Authority.

Purpose and jurisdiction of the Authority
The Authority is an independent, not-for-profit corporation that is responsible for administering the Safety Standards Act. The mandate of the Authority is public safety with regard to equipment and systems listed in the Safety Standards Act. Its purpose is to carry on activities, such as issuing directives and safety orders, and setting standards, that foster safety in the design, manufacture, disposal, construction, installation, operation, maintenance, and use of listed equipment and systems.

The Authority's jurisdiction is limited to equipment and systems listed in the Safety Standards Act. The responsibilities of the Authority fall into the following areas:

Amusement Rides and Recreational Railways Safety Program - safety in the area that pertains to amusement rides, including tourist/amusement rail operators, and recreational railways
Boiler and Pressure Vessel Safety Program - the safe operation and manufacturing of pressure containing equipment under the jurisdiction of the Safety Standards Act, including high pressure boilers, low pressure boilers, hot water boilers, refrigeration units, unfired pressure vessels, and fired pressure vessels
Electrical Safety Program - safety in the area that pertains to electrical safety, including all types of electrical equipment and installations
Elevating Devices Program - safety in the area that pertains to elevating devices, including passenger elevators, freight elevators, escalators, moving walks, handicapped lifts, and construction hoists
Gas Safety Program - safety in the area of gas distribution, utilization of natural and propane gas, and the manufacture or dilution of any of them, as well as the safe installation and operation of gas fueled equipment
Passenger Ropeways Safety Program - safety in the area that pertains to passenger ropeways, including ski lifts
Railway Safety Program - safety in the area of intra-provincial, common carriers, industrial and commuter railways. The administration of some provisions of the Railway Safety Act has been delegated to the Authority

Authority's relationship to WorkSafeBC
Legislation
The Authority's mandate of public safety (for the listed equipment and systems only) covers workers as well as members of the public. In many cases, the OHS Regulation ("Regulation") will reference standards set by the Authority (or set by legislation administered by the Authority) as obligations in the workplace to ensure worker safety.

Inspections, investigations, and other enforcement by WorkSafeBC
WorkSafeBC expects workplace parties to comply with safety standards and certification levels established by the Authority, although any compliance orders issued by WorkSafeBC will be based on a provision of the Act or the Regulation.

Often, a single employer may be inspected or investigated by WorkSafeBC prevention officers for occupational health and safety compliance, and by Authority inspectors for public safety compliance. Where practicable, inspection or investigation personnel from both agencies will coordinate their inspection and investigation efforts where it may be beneficial to safety or necessary to minimize disruption at the workplace.

Note that Prevention Manual Policy Item D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist provides that WorkSafeBC prevention officers will not issue an order or exercise another power to directly enforce a statute or regulation of the Authority.

Requirements for notifying and cooperating with the Authority
Prevention Manual Policy Item D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist provides directions to prevention officers inspecting an operation that WorkSafeBC is not totally excluded from, but for which certain equipment or activities included in the operation are covered by a statute or regulation administered by another agency, such as the Authority. The policy requires prevention officers, who observe what they believe to be a violation of a statute or a regulation administered by the Authority, to:

Notify the Authority of the details of the observation that they believe to be a violation of its statutes or regulation
Cooperate with the Authority in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and prevention officers' duties under the Act

Before notifying the Authority, the prevention officer should inform the employer of the situation that may be a violation of a statute or regulation of the Authority and that the prevention officer will be contacting the Authority for their follow-up.

If the Authority requests it, and it is practicable to do so, the prevention officer will preserve the scene of an incident until the Authority personnel are able to attend. The Authority inspectors are instructed to do the same if a similar request is made by a prevention officer.

Example
During the course of an inspection of a ski resort, a prevention officer learns that the employer has failed to implement an occupational health and safety program even though one is required under section 3.1 of the Regulation. The prevention officer may make an order requiring that an OHS program be established.

During the inspection, the prevention officer also notices that operating permits for the chairlifts are not kept where theses devices are located, as required by the Elevating Devices Safety Regulation. The prevention officer decides that in this case there is no immediate danger or undue risk present. The prevention officer will not write an order to enforce this requirement of the Elevating Devices Safety Regulation. However, the prevention officer who notices this violation will notify the Authority and cooperate in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and the prevention officer's duties under the Act.

Where a prevention officer identifies a condition of immediate danger or undue hazard at a workplace that is a possible violation of a statute or regulation administered by the Authority, the prevention officer will contact the Authority immediately. The prevention officer may also consider taking action to minimize the danger to workers under an appropriate provision of the Act or Regulation, e.g. stop work order.

Sharing of information
Prevention officers will provide the Authority with timely notification and consultations whenever their activities will impact the Authority. Prevention officers will respond in a timely manner to the Authority's requests for information related to an inspection or incident investigation after consulting with their manager. This includes statistical information and analysis, where resources allow, or copies of summaries of records of inspections, investigations, and witness statements and other information relevant to an inspection or incident investigation. The Authority inspectors will do the same.

Where information is requested by the Authority that does not pertain to an inspection or incident investigation, such requests will be forwarded to WorkSafeBC's Freedom of Information and Privacy Protection Office.

Seizure of evidence
WorkSafeBC and the Authority each have the power to seize evidence in the course of an investigation. Personnel from both parties should cooperate prior to the seizure of evidence to ensure, as much as possible, that one party's seizure of evidence does not adversely affect the other party's investigation.

If seized evidence is to be tested, prevention officers will consult with the Authority and make reasonable efforts to ensure the testing does not adversely affect the Authority's investigation. Prevention officers will provide the Authority with advance notice of the time and location of testing so that Authority personnel may attend if they wish to do so. The Authority inspectors will do the same.

Contact information for the Authority
BC Safety Authority
Suite 400 - 88 6th Street
New Westminster, BC V3L 5B3
Canada
email:
Toll free: 1-866-566-SAFE (7233)
Phone: (604) 660-6286
Fax: (604) 660-6215

G-D1-108-3 Labour Program - Human Resources and Services Development Canada (HRSDC) Jurisdiction

Issued February 22, 2006

Regulatory Excerpt
The WorkSafeBC's Prevention jurisdiction is set out in section 108 of the Workers Compensation Act ("Act"):

(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.

Purpose of guideline
The purpose of this guideline is to provide general guidance on the limits to WorkSafeBC's prevention jurisdiction resulting from the constitutional division of powers between the federal and provincial government.

Federal/Provincial jurisdiction
The Constitution Act, 1867 lists exclusive areas in which each of the federal and provincial governments may enact laws. Most labour relations and employment matters including OHS, fall under the provincial authority over "property and civil rights." This authority over provincial organizations is regulated and administered by WorkSafeBC.

Although there is a presumption that OHS falls under provincial jurisdiction, the OHS of certain organizations will fall under federal jurisdiction. The OHS of an organization may come under federal jurisdiction in one of the following two ways:

Federal competence
First, if it can be established that an organization operates predominantly in an area of federal competence under the Constitution, and if it can be said that regulating the labour relations of that organization is necessary for regulating that area of federal competence, the OHS of that organization will fall under federal jurisdiction and WorkSafeBC will have no jurisdiction. Examples of areas of federal competence include:
- businesses connected with navigation and shipping
- railways extending beyond the limits of a province
- line of ships extending beyond the limits of a province
- ferries between two or more provinces or between any province and another country
- airports, aircraft or airlines
- the administration of Indian reserves
- banks within the meaning of section 2 of the federal Bank Act
In evaluating whether an organization operates in an area of federal competence, the enquiry must be made into the normal activities of the organization in the context of the nature of the service, business, or work performed by the organization. It is the core nature of the business that must be evaluated; individual or intermittent projects or activities should not bear on the determination of whether an organization is under federal jurisdiction.
Integral to federal organization
Second, if an organization's operations cannot be considered federally regulated on their own (such as with a contractor doing work for a federally regulated business), the organization may be considered to be under federal jurisdiction if the organization is "integral" to a federally regulated organization. This may exist where there is a high degree of operational integration with a federally regulated organization or where the federally regulated organization is dependant on the provincial enterprise to carry out its federally regulated operations.

It is important to note also that employers under federal jurisdiction must be registered and pay assessments to WorkSafeBC, and WorkSafeBC will administer claims of workers for these employers. The registration status of an employer is irrelevant to whether that employer falls under the WorkSafeBC's prevention jurisdiction, and a determination that an employer is beyond the WorkSafeBC's prevention jurisdiction does not impact the requirement to register or a worker's entitlement to compensation.

WorkSafeBC protocol where there are jurisdictional limits
Where the OHS of an organization falls under federal jurisdiction, WorkSafeBC is precluded from exercising its powers to inspect that organization. The occupational health and safety of organizations under federal jurisdiction is regulated through Part II of the Canada Labour Code and its associated regulations, which is administered by the Labour Program of Human Resources and Skills Development Canada (HRSDC).

Policy Item D1-108-1 provides general guidance on how WorkSafeBC prevention officers will exercise their powers in situations where it has been established that there are jurisdictional limits on those powers. It states that, where WorkSafeBC is totally excluded from inspecting an operation, prevention officers will not knowingly issue an order or exercise another power under Part 3 with respect to an operation in this situation.

If prevention 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
cooperate with that agency in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and the officers' duties under the Act

While section 108(1)(c) of the Act permits the federal government to submit to the application of Part 3 of the Act, which would give WorkSafeBC the ability to inspect organizations that are under federal jurisdiction, the federal government has not submitted to the application of Part 3 of the Act under this section.

Prevention officers' questions about jurisdiction may be directed to the Regulatory Practices Department of WorkSafeBC.

G-D1-108-4 Fire safety and prevention

Issued February 22, 2006; Revised April 4, 2006

Regulatory excerpt
Section 108(1) of the Workers Compensation Act states:

(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.

Purpose of guideline
The purpose of this guideline is to describe WorkSafeBC's relationship to the Office of the Fire Commissioner ("Office") and the Office's jurisdiction over fire safety and fire protection in British Columbia.

Jurisdiction
The Office is the senior authority having jurisdiction over fire safety and prevention in B.C. The Office administers the Fire Services Act and it regulations, and appoints and trains local assistants to the Fire Commissioner.

Under the authority of Prevention Manual Policy Item Policy Item D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist (http://www2.worksafebc.com/Publications/OHSRegulation/Policies-WorkersCompensationAct.asp #SectionNumber:D1-108-1), where WorkSafeBC prevention officers observe what they believe to be a violation of the Fire Services Act or its regulations, prevention officers will notify the local assistant to the Fire Commissioner. Before notifying the local assistant, the prevention officer should inform the employer of the situation that may be a violation of the Fire Services Act or its regulations and that the officer will be advising the Office about a possible violation. Prevention officers will not issue an order or exercise another power to directly enforce a statute or regulation of another agency.

Prevention officers can contact the Office at (250) 356-9000 to obtain contact information for local assistants in their region.

The Office advises that at times, there may be some outstanding fire safety issues that are not resolved in a workplace. These could be violations under the Workers Compensation Act or the OHS Regulation. The local assistants to the fire commissioner (LAFCs) will let the owners/employers know that the items, if not corrected, will be reported to WorkSafeBC. The LAFCs will report issues they are aware of that affect worker health and safety to WorkSafeBC by calling the Prevention Call Centre or the toll free number. If the issue involves a high risk or immediate danger to a worker, the LAFC would advise the Prevention Call Centre so that a prevention officer could be assigned to respond promptly. For less urgent matters, the LAFC would understand that it may take several business days for the prevention officer to receive the information and follow up.

G-D1-108-5 Jurisdiction over railways

Issued April 1, 2006; Revised October 19, 2007

Regulatory excerpt
WorkSafeBC's prevention jurisdiction is set out in section 108 of the Workers Compensation Act ("Act"):

(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 2004-8-33.], or

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

Purpose of guideline
The purpose of this guideline is to outline WorkSafeBC's jurisdiction over railways. Prior to the enactment of legislative changes in 2004 which redesigned the regulatory framework governing railways, the Act excluded prevention jurisdiction over railways. On April 1, 2004, WorkSafeBC was given jurisdiction over the occupational health and safety of railways and rail operations within provincial jurisdiction. The BC Safety Authority ("Authority") assumed the other regulatory responsibilities which previously rested with the provincial government.

Provincial jurisdiction
Only railways and rail-related operations operating entirely within the province fall under WorkSafeBC's prevention jurisdiction. Certain railways still remain beyond provincial jurisdiction, namely railways extending beyond the province. These fall under federal jurisdiction and WorkSafeBC is excluded from exercising powers under Part 3 of the Act over these operations.

Specific railways/operations
WorkSafeBC's jurisdiction extends to the occupational health and safety of onboard operations and facilities of the following types of operations:

Common carrier passenger or freight railways operating exclusively within the province, including:
- Island Corridor Foundation (Southern Railway of Vancouver Island Ltd., formerly Esquimalt and Nanaimo Railway)
- Grand Forks Railway
- International Rail Road Systems
- Southern Railway of British Columbia
Industrial railways and sidings e.g. at pulp and paper mills (provided they are not operated by federal employers like ports, grain terminals, etc.)
Commuter railways, which include:

Skytrain (BC Rapid Transit Company)
Canada Line (Intransit BC)
Evergreen Line (proposed)
All proposed street car systems

Recreational railways, such as amusement rides

For further clarification, railway operations once carried on by BC Rail have been transferred to CN Rail. As CN Rail is a national carrier, the former BC Rail operations are now under federal jurisdiction, including occupational health and safety requirements.

Notifying the BC Safety Authority
While WorkSafeBC has jurisdiction over occupational health and safety with respect to provincial railways, the BC Safety Authority - Railway Safety Program is responsible for regulating the general railway safety standards for the protection of the public. The Authority's railway inspectors enforce the Railway Safety Act and regulations and have jurisdiction over the same provincial railways and provincial common carrier railways as WorkSafeBC (see above).

Prevention Manual Policy Item D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist (http://www2.worksafebc.com/Publications/OHSRegulation/Policies-WorkersCompensationAct.asp#SectionNumber:D1-108-1) provides directions to WorkSafeBC prevention officers inspecting an operation that WorkSafeBC is not totally excluded from, but for which certain equipment or activities included in the operation are covered by a statute or regulation administered by another agency, such as the Authority.

For example, where a prevention officer in the course of an inspection or investigation of a railway becomes aware of possible breaches of the railway operating rules under the Railway Safety Act or regulations, the policy requires the prevention officer to

Notify the Authority of the details of the observation that they believe to be a violation of its statutes or regulation
Cooperate with the Authority in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and the prevention officer's duties under the Act

Before notifying the Authority, the prevention officer should inform the employer of the situation that may be a violation of a statute or regulation of the Authority.

G-D1-108-6 WorkSafeBC jurisdiction over helilogging operations

Issued June 6, 2006

Regulatory excerpt
Section 108 of the Workers Compensation Act ("Act") provides:

(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 OHS are ordinarily within the jurisdiction of the Provincial government

Purpose of guideline
The purpose of this guideline is to clarify the authority of WorkSafeBC over the occupational health and safety (OHS) of organizations that conduct helilogging operations.

Summary
WorkSafeBC has jurisdiction over the regulation of OHS of employers operating in B.C. until they are excluded for some reason. WorkSafeBC is excluded from OHS enforcement activity with respect to employers that operate in federally regulated industries.

For helilogging operations, employers involved in air operations will fall under federal jurisdiction. In addition, helilogging ground crews that are employed by such federally regulated employers or that work for different employers that are integrated with the federal employer will fall under federal jurisdiction.

Jurisdiction over OHS
The Constitution Act, 1867 ("Constitution") lists exclusive areas in which each of the federal and provincial governments may enact laws. Labour relations and employment matters, including OHS, fall under the provincial authority over "property and civil rights."

Regulation of OHS falls under provincial jurisdiction, unless it can be established that an organization operates predominantly in an area of federal competence under the Constitution and that regulating the labour relations of the organization is integral to regulating that area of federal competence. The OHS of that organization then will fall under federal jurisdiction and WorkSafeBC will have no jurisdiction over OHS concerns.

Likewise, an operation that would otherwise fall under provincial jurisdiction may fall under federal jurisdiction if there is a "high degree of operational integration" with a federally regulated organization. For example, if that operation forms an integral part of a federally regulated organization, or if the federally regulated organization is dependent on the provincial enterprise to carry out its federally regulated tasks.

In assessing whether an organization is federally regulated, the courts inquire into the operations and normal activities of the organization in the context of the nature of the service, business, or work performed.

Federal jurisdiction over helilogging
It is clear that the OHS of helilogging workers engaged in air operations will generally fall under the federal jurisdiction over aeronautics. However, determining the OHS jurisdiction of the helilogging ground crew requires a case by case inquiry into the particular circumstances.

The federal government will have jurisdiction over the operations of ground crews involved in helilogging operations if it can be established that the ground crew's operations form part of the federally regulated aeronautics operations. For example, where both the ground crew and the air crew have the same employer.

Where there is a ground crew that is not part of an aeronautics operation, the crew will be under federal jurisdiction if there is a high degree of "functional integration" with the aeronautics undertaking. Functional integration may exist where there is common management, corporate control and direction over both the ground crew and air crew, or where there is a natural link or operational continuity between the activities of the ground and air crew.

WorkSafeBC will have jurisdiction over the ground crew where the crew operates independently of the aeronautic undertaking and cannot be said to be integrated into the operations of the aeronautic undertaking. This may exist where the ground operation undertakes a variety of operations, some of which may relate to helilogging or helilogging clients and where there is little interaction between the air crew and the ground crew.

What should field officers ask?
In determining if a ground crew working in helilogging is under WorkSafeBC jurisdiction, WorkSafeBC prevention officers should consider the following:

Who is the employer? A large integrated logging firm? An air service or helilogging business? A ground crew contractor? A smaller contractor supplying services or equipment to the above?
Does the ground crew employer carry out only ground operations? Are the ground operations part of a larger operation?
Is the ground crew dedicated to helilogging operations only?
Are air and ground crews separated into different divisions or administrative units?
Is there common management for air and ground crews?
Are the ground crews full time employees, or contractors? If they are contractors, is the helilogging operation reliant in an ongoing, permanent, or continuous nature?
What is the nature of the normal or predominant activities of the ground crew contractor? What services does it provide? Does it engage exclusively or primarily in the provision of helilogging ground crews? What percentage of the business is dedicated to helilogging operations?
How much control does the helilogging employer exercise over the contractor? How dependent is the contractor on the helilogging operation? In what way "dependent?"
Does the contractor's ground crew have special skills, training or knowledge relating to helilogging?
Are the activities they carry out unique or specific to helilogging?
How are the helilogging operations performed? How direct is the link between the actual activities of the contractor's ground crew and the air operations?

Questions about jurisdiction in helilogging, and other questions relating to the jurisdiction of WorkSafeBC over OHS, may be directed to the Regulatory Practices Department of WorkSafeBC.

G-D1-108-7 Jurisdiction over mines

Issued June 18, 2008

Regulatory excerpt
WorkSafeBC's prevention jurisdiction is set out in section 108 of Part 3 (Occupational Health and Safety) of the Workers Compensation Act ("Act"):

(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 2004-8-33.]

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

Purpose of guideline
The purpose of this guideline is to clarify the authority of WorkSafeBC over the occupational health and safety ("OHS") of organizations that conduct operations on or around mines.

Ministry of Energy, Mines and Petroleum Resources OHS Jurisdiction
WorkSafeBC's prevention jurisdiction does not extend to mines to which the Mines Act applies. Under the Mines Act, a "mine" includes

(a) a place where mechanical disturbance of the ground or any excavation is made to explore for or to produce coal, mineral bearing substances, placer minerals, rock, limestone, earth, clay, sand or gravel

(b) all cleared areas, machinery and equipment for use in servicing a mine or for use in connection with a mine and buildings other than bunkhouses, cook houses and related residential facilities

(c) all activities including exploratory drilling, excavation, processing, concentrating, waste disposal and site reclamation

(d) closed and abandoned mines

(e) a place designated by the chief inspector as a mine

The approval of mining projects under the Mines Act and the Health, Safety and Reclamation Code for Mines in British Columbia is administered by the Ministry of Energy, Mines and Petroleum Resources ("MEMPR"). A permit from MEMPR is required for coal and mineral exploration programs, placer mining, sand and gravel pits and quarries, proposed coal or hardrock mineral mines, major expansions or modifications of producing coal and hardrock mineral mines, as well as large pilot projects, bulk samples, trial cargoes and test shipments.

All activities conducted in relation to mining within the boundaries of a Mines Act permit area fall within the OHS jurisdiction of MEMPR. Examples include: mining drilling and exploration; construction and blasting on mine property; operation of mining company labs and mobile equipment at a mine site; roads on mine property; and processing facilities, power lines and pipelines that service the mine and are situated within the mine boundaries. Sites outside of the mine permit area that are designated as "mines" by the Chief Inspector of Mines will also fall under MEMPR's OHS jurisdiction.

Aggregate pits, such as gravel pits, that are exploited primarily for commercial purposes constitute "mines" under the Mines Act and are thus within the OHS jurisdiction of MEMPR. In other words, if the primary purpose of the excavation is to extract aggregate, OHS over the pit will be the responsibility of MEMPR. Examples of such pits include gravel pits primarily used for building a logging road (unless the pit is situated within the road's right-of-way) or for selling gravel. On the other hand, if the excavation is primarily conducted for development purposes (for example, for erecting a foundation structure for a building) under a development or building permit from another level of government (such as a municipality or regional district), the aggregate pit will fall within the jurisdiction of WorkSafeBC, even if the excavated material is eventually sold.

WorkSafeBC OHS Jurisdiction
WorkSafeBC has jurisdiction over OHS with respect to areas, machinery, equipment and buildings that are not used to service or in connection with a "mine" as defined above. This includes, for example, access roads outside of the mine boundaries, and timber removal operations that are not connected to the mining activity (even if they are carried out within the mine boundaries). Likewise, WorkSafeBC has OHS jurisdiction over bunkhouses, cook houses and related residential facilities that are used to service a mine or in connection with a mine, to the extent that they are workplaces in which workers such as cooks, maintenance people and others are employed.

WorkSafeBC's jurisdiction also extends to service roads running through mine boundaries that are used to access areas beyond the mine, such as forestry or oil and gas operations. It should also be noted that oil and gas exploration and production activities are within WorkSafeBC's jurisdiction.

Dual OHS Jurisdiction
While WorkSafeBC is excluded from enforcing OHS requirements at a "mine" site, there are employers in respect of which jurisdiction will be divided between WorkSafeBC and MEMPR. In other words, there are employers who are under WorkSafeBC jurisdiction for much of their business, but who operate on some "mine" workplaces where WorkSafeBC has no jurisdiction. In these situations, WorkSafeBC requirements will apply in general to the employers, but WorkSafeBC has no jurisdiction to enforce specific requirements with respect to those "mine" workplaces. For example, a road construction firm that operates a gravel pit to build an industrial road (such as a logging road) will be subject to general WorkSafeBC requirements around safety programs and health and safety committees. However, WorkSafeBC may not enforce specific requirements around the firm's operation of mobile equipment at the gravel pit.

Other examples of situations where dual jurisdiction may arise include concrete plants with associated gravel pits. In these situations, the jurisdictional dividing line will vary from case to case. The more direct and regular the connection between the activity and the mine site, the more likely it is to be "for use in servicing a mine or for use in connection with a mine." For instance, a loader that is routinely used to dump gravel into the processing plant will fall within WorkSafeBC's jurisdiction. In contrast, if the loader constitutes a significant part of the operation of the gravel pit and is only used occasionally in relation to the processing plant, OHS over that piece of equipment will be the responsibility of MEMPR.

Further information
When faced with assertions that OHS over a particular facility or activity falls outside of WorkSafeBC's jurisdiction, or situations where the jurisdictional divide is unclear, prevention officers may contact MEMPR to obtain further information about the operations in question. In addition, prevention officers should consult with their manager.

Questions about jurisdiction over mines, and other questions relating to the jurisdiction of WorkSafeBC over OHS, may be directed to the Regulatory Practices Department of WorkSafeBC.

Requirements for notifying and cooperating with MEMPR
Prevention Manual Policy Item D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist provides that WorkSafeBC prevention officers will not issue an order or exercise another power to directly enforce a statute or regulation administered by MEMPR. The policy also requires prevention officers who observe what they believe to be a violation of a statute or a regulation administered by MEMPR to

Notify MEMPR of the details of the observation that they believe to be a violation of its statute or regulation. As part of this notification, it is recommended that prevention officers forward a copy of the inspection report, if one was prepared, to MEMPR. It should be noted, for further clarity, that if the workplace is outside of WorkSafeBC's jurisdiction, the inspection report must not include an order and it is not required to be posted.
Cooperate with MEMPR in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and prevention officers' duties under the Act.

Before notifying MEMPR, the prevention officer should inform the employer of the situation that may be a violation of a statute or regulation of MEMPR and that the prevention officer will be contacting MEMPR for their follow-up.

Contact information for MEMPR
Southwest Regional Office (Victoria)
Phone: (250) 387-4825
Fax: (250) 953-3878

Southeast Regional Office (Cranbrook)
Phone: (250) 426-1557
Fax: (250) 426-1652

South Central Regional Office (Kamloops)
Phone: (250) 371-6069
Fax: (250) 371-6070

Northwest Regional Office (Smithers)
Phone: (250) 847-7383
Fax: (250) 847-7603

Northeast/Central Regional Office (Prince George)
Phone: (250) 565-4240
Fax: (250) 565-4328

G-D1-108-8 Jurisdiction over marine operations

Preliminary Issue September 24, 2008

Regulatory excerpt
WorkSafeBC's prevention jurisdiction is set out in section 108 of Part 3 (Occupational Health and Safety) of the Workers Compensation Act ("Act"), which provides, in part:

(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.

Purpose of guideline
The purpose of this guideline is to clarify the authority of WorkSafeBC over the occupational health and safety ("OHS") of organizations that conduct marine operations.

Jurisdiction over OHS
The Constitution Act, 1867 ("Constitution") lists exclusive areas in which the federal and provincial governments may enact laws. The regulation of OHS falls under provincial jurisdiction. However, if an organization operates predominantly in an area that is within federal jurisdiction under the Constitution, such as navigation and shipping, and the regulation of the OHS of the organization is integral to regulating that area of federal competence, the OHS of that organization will fall under the jurisdiction of Human Resources and Social Development Canada ("HRSDC"). In those instances, WorkSafeBC will have no jurisdiction over OHS concerns.

Likewise, an operation that would otherwise be under provincial jurisdiction may fall under federal jurisdiction if there is a high degree of operational integration with a federally regulated organization. In other words, if the provincial operation forms an integral part of a federally regulated organization, or if the federally regulated organization is dependent on the provincial enterprise to carry out its federally regulated tasks, OHS over the operation will be the responsibility of HRSDC. For example, HRSDC has OHS jurisdiction over firms that provide stevedoring services (loading and unloading of ships).

Commercial fishing
WorkSafeBC has jurisdiction over the OHS of the business of fishing, which encompasses the activities of the crew and the operation of the vessel and its gear in the territorial waters and navigable rivers of British Columbia. WorkSafeBC has jurisdiction over these matters even if the vessel passes briefly through American waters, as long as the journey is between two ports within the province. In particular, fishing operations are subject to the requirements of sections 24.69 - 24.143 of Part 24 (Diving, Fishing and Other Marine Operations) of the OHS Regulation ("Regulation").

The federal government (Transport Canada) may control only the fundamental aspects of navigation and shipping within the province. It may impose rules designed to ensure the safety of vessels as long as the rules relate only to maritime matters, such as communication procedures, crew navigation qualifications, and emergency equipment. In addition, the federal government (Fisheries and Oceans Canada) may manage the fishery resources.

There are a number of other activities on board commercial fishing vessels that are the joint focus of WorkSafeBC and the federal government. These include the stowing of cargo and catch, the setting and retrieving of the vessel's anchor, engine room procedures, and emergency drills.

This division of responsibilities is reflected in a memorandum of understanding between WorkSafeBC and Transport Canada.

Small vessels
WorkSafeBC has OHS jurisdiction over tugboats, logging boom boats and crew vessels that travel between ports in British Columbia, even if they pass briefly through American waters. Even though the federal government has, as stated above, some control over navigable waterways, this does not impact WorkSafeBC's OHS jurisdiction over employers that use or work on those waterways.

On the other hand, vessels that carry out regular interprovincial or international operations fall under the OHS jurisdiction of the federal government. For example, a tug service that runs barges to ports in the United States will fall under federal jurisdiction, while one that is limited to British Columbia waters will be under the OHS jurisdiction of WorkSafeBC.

Vessels under WorkSafeBC's OHS jurisdiction that are used to transport workers are subject to the requirements of sections 17.15 - 17.26 of Part 17 (Transportation of Workers) of the Regulation.

Ferries
WorkSafeBC has jurisdiction over the OHS of BC Ferries' vessels, as their operations are restricted to ports within British Columbia.

Wharves
Wharves, docks and mooring floats are within the OHS jurisdiction of WorkSafeBC. As a result, they are subject to the requirements of sections 24.2 - 24.6 of Part 24 (Diving, Fishing and Other Marine Operations) of the Regulation.

Ports and harbours
The federal government has OHS jurisdiction over ports and harbours that serve interprovincial or international routes. The federal government's responsibility also extends to any operations in those sites that are functionally integrated with or essential to federal navigation or shipping undertakings. For example, the OHS over stevedoring firms falls under federal jurisdiction.

Federal jurisdiction over the OHS of enterprises that transport or handle goods may also arise if the transportation of grains or dangerous goods is involved.

Ship repairs
WorkSafeBC has jurisdiction over the OHS of enterprises engaged in the construction, repair, and maintenance of vessels. However, if the ship repair operations are conducted by a firm that is under federal jurisdiction (e.g. because it provides regular international shipping services), the OHS over those operations will fall under federal jurisdiction.

Requirements for notifying and cooperating with HRSDC
Prevention Manual Policy Item D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist provides that WorkSafeBC prevention officers will not knowingly issue an order or exercise another power to directly enforce a statute or regulation administered by HRSDC. The policy also requires prevention officers who observe what they believe to be a violation of a statute or a regulation administered by HRSDC to conduct the following:

Notify HRSDC (1-800-641-4049) of the details of the observation that they believe to be a violation of its statute or regulation. As part of this notification, it is recommended that prevention officers forward a copy of the inspection report, if one was prepared, to HRSDC. It should be noted that if the workplace is outside of WorkSafeBC's jurisdiction, the inspection report must not include an order and it is not required to be posted.
Cooperate with HRSDC in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and prevention officers' duties under the Act.

Before notifying HRSDC, the prevention officer should inform the employer of the situation which may be a violation of a statute or regulation of HRSDC, and that the prevention officer will be contacting HRSDC for their follow-up.

When faced with assertions that OHS over a particular facility or activity falls outside of WorkSafeBC's jurisdiction, or situations where the jurisdictional divide is unclear, prevention officers should consult with their manager. Questions about jurisdiction in marine operations, and other questions relating to the jurisdiction of WorkSafeBC over OHS, may also be directed to the Regulatory Practices Department of WorkSafeBC.

Guidelines Workers Compensation Act Part 3 Division 3

G-D3-115(1) The BC Human Rights Code and responsibilities of employers

Issued February 4, 2005

Section 115(1) of the Workers Compensation Act ("Act") states:

115(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.

The purpose of this guideline is to provide direction to prevention officers in dealing with worker complaints that compliance with provisions of the Act or OHS Regulation may violate provisions of the British Columbia Human Rights Code (" Code"). Sections 13(1) and 13(4) of the Code state:

Discrimination in employment

13(1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

13(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

There are circumstances in which a worker may refuse to perform certain work practices prescribed by the Act or OHS Regulation based upon religious or other protected characteristics specified in section 13(1) of the Code. Moreover, a worker may complain that an employer that attempts to compel the worker to comply with the requirements of the Act or OHS Regulation in light of his or her particular complaint is discriminating against the worker contrary to the provisions of the Code. At this point, the employer may choose to call a prevention officer to assist in resolving the matter.

Bona fide occupational requirements and accommodation of workers
It is generally accepted that OHS requirements are bona fide occupational requirements, as they are reasonably necessary to assure the safety of workers. Even so, an employer may have to make reasonable attempts to accommodate a worker's protected characteristics listed in section 13(1) of the Code (such as a physical disability or religious beliefs) but only to the point where the employer would suffer undue hardship in making an accommodation.

What constitutes accommodation to the point of undue hardship is a question that rests on the unique facts of each case. Accommodation may take many forms depending on the circumstances, including re-assignment, changing work schedules, modifying machinery, and so forth. The point of undue hardship will generally vary with the size of the employer, as larger employers may find it easier to accommodate a worker's protected characteristics without suffering a great degree of harm.

The employer is usually expected to take the initiative in proposing ways to accommodate a worker, and a worker is expected to actively participate in the process.

Role of the prevention officer
The Board does not enforce Code requirements, which are beyond the scope of the Act. Code requirements are administered by the BC Human Rights Tribunal. If a prevention officer encounters a situation where the Code is at issue and a violation of the Act or OHS Regulation is apparent, the prevention officer will first ensure that any immediate risk to the health and safety of workers is controlled. The prevention officer will then inform the employer that he or she may have a duty to accommodate the worker's protected characteristics (such as a physical disability, religious beliefs, or other characteristics listed in section 13(1) of the Code). The prevention officer will advise the employer to contact the BC Human Rights Tribunal or seek legal advice on how the worker should be accommodated (if at all), which will depend on the specific facts at hand.

The prevention officer will not advise the employer on accommodation issues, as the nature of accommodation is a complex legal question which is dependent on numerous factors related to the employer's operations. The prevention officer should also refrain from writing orders until the employer has had an opportunity to seek further advice, including legal counsel, to resolve the issue. However, the prevention officer could advise on alternative work practices that comply with the Act or OHS Regulation which could be acceptable to both parties.

The prevention officer should return to the worksite after a reasonable period of time and discuss what steps (if any) the employer has taken to resolve the issue and any ongoing Act or OHS Regulation violations that stem from Code-related issues. If the employer has not taken steps to address any ongoing violations, the prevention officer should no longer refrain from writing orders against the employer. The prevention officer should ensure compliance with the Act and OHS Regulation, regardless of any outstanding Code-related issues at the worksite, as the onus rests with the employer to accommodate a worker in the face of bona fide occupational requirements.

Any dispute that arises regarding the employer's choice of accommodation measures (if any) would fall within the jurisdiction of the BC Human Rights Tribunal and should be dealt with by that agency.

G-D3-115(2)(f) Copy of the Act readily available

Issued April 27, 2000; Updated March 28, 2002; Editorial Revision February 7, 2006

Regulatory excerpt
Section 115(2)(f) of the Workers Compensation Act (Act) states:

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

Purpose of guideline
This guideline discusses considerations involved in determining how to make a copy of the Act and OHS Regulation "readily available" under section 115(2)(f) of the Act.

"Readily available"
What constitutes "readily available" requires the exercise of judgement with some consideration of the circumstances surrounding the request. For example, if reference to the Act or the OHS Regulation is for health and safety purposes related to the work under way or about to take place, then a worker should be able to review the relevant material promptly, though not necessarily immediately on demand. However, this may mean that the work has to stop, or may not start until the health or safety issue is clarified. This will be particularly relevant if the issue is one of a worker exercising the right to refuse unsafe work. If the need for reference is for a claims or assessment matter, the actual time it takes to make the Act readily available for review might reasonably be a longer time than for making the health and safety related portions available.

Use of electronic versions of the legislation
The copy of the OHS Regulation and Act that is made readily available for workers may be either a printed or electronic version. If an employer chooses to meet the requirement under section 115(2)(f) by providing access to an electronic version of the Act and OHS Regulation, the employer should be prepared to provide assistance to workers who do not have sufficient computer skills or equipment to access the electronic version on their own. The employer should also be prepared to print off portions of the Act or OHS Regulation as the worker may reasonably request to deal with a particular topic or issue.

The use of the Board's "Excerpts" from the Act
The Board reproduces some portions of the Act relating to occupational health and safety matters as "Excerpts" from the Act, which are available on-line (see below). An employer might comply with section 115(2)(f) of the Act by having a copy of these excerpts as well as the OHS Regulation reasonably available at the workplace and by having a plan in place to provide workers access to the complete Act within a few work days.

The employer's plan for providing workers access to the complete Act might include arrangements to visit a company's office or other fixed work location, a local library or another resource center where the relevant material can be accessed in print form or online. The Act requires the employer to post and keep posted "a notice advising where the copy is available for review".

Sources of the Act and OHS Regulation The following Internet addresses provide unofficial online versions of excerpts of the Act and the OHS Regulation.

The OHS Regulation: www2.worksafebc.com/Publications/OHSRegulation/home.asp
Excerpts of the Workers Compensation Act: www2.worksafebc.com/Publications/OHSRegulation/ WorkersCompensationAct.asp.

Legislation can also be purchased from Crown Publications Inc. (http://www.crownpub.bc.ca; ph. 250.386.4636).

G-D3-124 Responsibilities of the persons/parties in a workplace

Issued March 28, 2002; Revised June 6, 2007

Regulatory excerpt
Section 124 of the Workers Compensation Act ("Act") states:

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 the 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 Item D3-123/124-1 provides:

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

Simultaneous compliance by more than one person would result in unnecessary duplication of effort and expense

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. WorkSafeBC is neither bound by any agreements of this nature, nor by whether the terms of the agreement are complied with. WorkSafeBC'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 WorkSafeBC 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.

Purpose of guideline
The purpose of this guideline is to provide examples of the application of section 124 of the Act.

Background
At any workplace, more than one workplace party may be responsible for particular workplace conditions or hazards. Each party must fulfill the obligations posed on him or her through the Act and OHS Regulation ("Regulation"). Where those obligations have not been fulfilled, WorkSafeBC prevention officers may issue orders and, where appropriate, recommend administrative penalties or prosecutions.

In most circumstances, workplace parties may not contract out or delegate their responsibilities, or otherwise rely on others to discharge their responsibilities. However, s.124 of the Act provides for a Limited Exemption to a workplace party's compliance obligations. This exemption, further described in Policy Item D3-123/124-1: General Duties - Overlapping Obligations (Policy) above, allows a workplace party to make arrangements with another party to fulfill that party's obligation. It is important to bear in mind that in order for the Limited Exemption to apply, all the elements set out in s. 124 and summarized in the bulleted list in the Policy must be met. These are

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

Some examples may assist in understanding the applicability of the Limited Exemption in s. 124 of the Act.

Example 1:
An employer operates a small wood-processing plant. The employer decides to hire a contractor to supervise a small crew made up of both the contractor's and the employer's workers to clean up wood waste around machines and conveyors on a Saturday when the plant is not operating. The employer tells the contractor he is responsible for making sure everything is done safely, ensures the contractor understands lockout procedures, and provides the contractor with access to the controls for the machinery. The contractor ensures the machinery is adequately locked out, as required by Part 10 of the Regulation, and performs the required maintenance safely.

In this example, the employer fulfilled its obligation for the Saturday job. The elements of s. 124 are met, as both the employer and the contractor had an obligation to ensure that the machinery was locked out, but having the employer comply with the lockout provisions as well as the contractor would have resulted in unnecessary duplication. However, had the contracting employer not fulfilled the lockout requirements, both the employer and the contracting employer would have been in violation of Part 10.

Example 2:
An employer operates a manufacturing plant and requires an air compressor. The employer contacts a supplier (an equipment dealer/rental firm) and orders a used compressor. The only compressor the supplier had was missing the guard around the cooling fan and its drive belts. The supplier shipped the unit to the employer with the guard missing. The employer noticed the guard was missing, and before putting the compressor into service in the plant, ensured that a replacement guard that met the requirements of Part 12 of the Regulation was made in its machine shop from a guard from another piece of equipment that was not in service.

While the guarding on the equipment was ultimately compliant, the supplier did not meet its obligations under s. 120 of the Act to ensure its equipment was safe or provide directions regarding the safe use of the equipment. Section 124 does not apply, as the employer and the supplier did not have the same obligation. Further, the Policy states that: "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." In this example, the supplier left the risk to be eliminated by the employer performing its duty. Section 124 does not automatically excuse one party from compliance merely because another party has addressed the non-compliant situation and ensured that a hazardous situation was avoided.

Example 3:
An office building is being renovated. The owner has hired a prime contractor to coordinate the various contractors working on the renovation. Each contractor that is an employer for the purposes of the Act and Regulation, must provide its workers "the information, instruction, training and supervision necessary to ensure the health and safety of those workers" under s. 115 of the Act. However, some aspects of this obligation may of necessity be fulfilled by the prime contractor at the workplace, as it fulfills its obligation to coordinate the workplace, depending on the prime contractor's system of coordination and the realities of the particular workplace.

The employer will inevitably remain responsible for certain aspects of instruction, training, and supervision (such as how to perform tasks safely and to ensure the workers conform to the prime contractor's system for coordinating the workplace). For those aspects of instruction, training, and supervision that the realities of the workplace suggest would be better performed by the prime contractor, then s. 124 permits the employer to be excused from having to undertake those activities. However, if the prime contractor is not performing its obligations effectively, or its system of coordination is such that contact with workers is limited, then the employer is responsible to ensure that all aspects of worker instruction, training, and supervision are adequate to ensure health and safety.

Guidelines Workers Compensation Act Part 3 Division 4

G-D4-135-1 Joint committee course approval

Issued February 27, 2001; Revised March 25, 2005

Section 135(1) of the Workers Compensation Act states:

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.

A person who is new to the role of joint committee member, or to the role of worker health and safety representative, is likely to best meet their occupational health and safety training needs through introductory level courses such as the WorkSafe Joint Committee course developed by the Board. A joint committee member or a worker health and safety representative who already has had education, training and experience in health and safety programs and committee activity may or may not be able to meet their current training needs through WorkSafe offerings. In some instances, workplaces have training needs which are unique to their processes or situations. In these cases, joint committee education/training needs may best be addressed through courses developed and delivered by public or private sector providers.

The following sets out what is a course "conducted by or with the approval of the Board" under section 135 of the Workers Compensation Act.

1. WCB WorkSafe courses - WorkSafe courses have been developed by the Board and are therefore considered to be "Board approved." Each of the six one-day WorkSafe courses enables employers and workers to achieve different objectives. Partners registered with the WCB as WorkSafe providers include community colleges, other post-secondary education institutions and training agencies.

For information on WorkSafe courses visit the WCB website at http://www.worksafebc.com/news_room/courses/default.asp or call (604) 276-3090 or toll-free (from within BC) at 1-888-621-7233, extension 3334.

2. Other courses - Other occupational health and safety courses are acceptable if the employer follows a reasonable process of assessing the training needs of committee members and selecting appropriate training programs outside of the WorkSafe courses. Appropriate occupational health and safety training programs for committee members are related to the duties and the responsibilities of the committee. A reasonable process would include the steps set out in Policy Item D4-135-1 of the Prevention Manual. The selected training programs do not need to be referred to the Board for pre-approval; however, the Board reserves the right to deal with any disputes over the appropriateness of training and otherwise to monitor or inquire into the contents and conduct of training.

A list of education and training providers who provide B.C. occupational health and safety courses and teach WCB curriculum, as well as guidelines for choosing a training provider, is located at www2.worksafebc.com/PDFs/SafetyUpdates/training_providers.pdf.
Not all of the training providers on the list teach WorkSafe courses.

Guidelines Workers Compensation Act Part 3 Division 6

G-D6-152 Worker complaints of discriminatory action and failure to pay wages complaints

Issued August 16, 2000; Revised April 2, 2004; Revised February 7, 2006: Revised May 17, 2006

Regulatory excerpt
The discrimination provisions are in Division 6 of Part 3 of the Workers Compensation Act ("Act"). See form #57W1 for excerpts from the Act.

Purpose of guideline
The purpose of this guideline is to provide information to WorkSafeBC prevention officers and workplace parties about how WorkSafeBC handles worker complaints of discriminatory action and failure to pay wages under the Act. It provides an overview of the legislation on discriminatory action, a description of the initial investigation by prevention officers, processes associated with the three possible outcomes of the initial investigation, and information regarding the final adjudication decision by the Compliance Section.

Background
Discrimination provisions provide that workers may not be punished by, or receive retribution from, their employer or union because they have reported an occupational health or safety concern in the workplace, or have otherwise exercised a right or carried out a duty under Part 3 of the Act (the occupational health and safety provisions) or the OHS Regulation. Retribution by an employer could take the form of firing, demotion, suspension, and reduction of wages, or changes in working hours or duties.

Union retribution would involve an adverse effect on a unionized worker's membership in the union. Where workers believe they have been subject to this form of discrimination, the Act provides that the worker may make a written complaint to WorkSafeBC and have a determination made in respect of the issue. A prevention officer will be assigned to meet with the worker to explain the process of how to lodge a complaint under the Act, including the time limits for lodging a complaint.

Where discriminatory action or a failure to pay wages has occurred, WorkSafeBC can order the employer/union to provide a remedy to put the worker in the same position he or she would have been in had the discriminatory action or failure to pay wages not occurred.

Discriminatory action complaints
Section 151 of the Act prohibits an employer or union from taking or threatening to take a discriminatory action against a worker:

For exercising any right or carrying out any duty under the Act or the OHS Regulation (section 151(a)). An example of a right is the right to refuse unsafe work (s. 3.12 OHS Regulation). An example of a duty is reporting the existence of a hazard likely to endanger a worker (s. 3.10 OHS Regulation).
For testifying or being about to testify under the Act or the Coroners Act on an issue related to occupational health and safety or occupational environment (section 151(b)).
For giving information regarding conditions affecting the occupational health or safety or occupational environment of a worker to an employer, another worker, or a union representing a worker, or a WorkSafeBC officer (section 151(c)).

Section 150(1) and (2) define discriminatory action to include any act or omission by an employer or union that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.

Discriminatory actions include

Suspension, layoff or dismissal
Demotion or loss of opportunity for promotion
Transfer of duties, change of location of workplace, reduction in wages or change in working hours
Coercion or intimidation
Imposition of any discipline, reprimand or other penalty
Discontinuation or elimination of the job of the worker

Failure to pay wages complaints
Although the term "wages" is not used in the occupational health and safety provisions of the Act, there are a number of sections that require an employer to pay a worker for lost work time. These are

Section 134(2) (time off work by members of joint committees)
Section 135(3) (educational leave for committee members)
Section 182(4) (worker accompanying an inspection)
Section 192(1) (layoff resulting from stop work order)

Where discriminatory action or a failure to pay wages has occurred, WorkSafeBC can order the employer/union to provide a remedy to put the worker in the same position he would have been in had the discriminatory action or failure to pay wages not occurred.

Filing a grievance under a collective agreement
Union workers have the option of filing a grievance through their union against the employer about the discriminatory action or failure to pay wages.

If the worker chooses to file a grievance under his or her union collective agreement with the employer, the worker cannot simultaneously pursue a complaint with WorkSafeBC regarding the same discriminatory action or failure to pay wages. Nor can a worker pursue a complaint with WorkSafeBC if he/she is displeased with the union grievance outcome.

However, if the union decides not to pursue the grievance, the worker may pursue a discriminatory complaint with WorkSafeBC provided

The worker files their complaint with WorkSafeBC within 30 days of the union's decision not to pursue.
The complaint is still made within one year of the action considered to be discriminatory or within 60 days after the wages became payable (Prevention Manual Item D6-153-1).

Time limits for filing a complaint with WorkSafeBC

Where the complaint is in respect of a discriminatory action, the worker must file a written complaint with WorkSafeBC within one year of the action considered to be discriminatory (section 152(2)(a) Act).
Where the complaint is in respect of a failure to pay wages, the worker must file a written complaint with WorkSafeBC within 60 days after the wages became payable (section 152(2)(b) Act).

An oral complaint does not meet the statutory requirements of the Act and to meet the time limits, the complaint must be made in writing within the specified time frames noted above.

Representation
Workers and employers may have a representative act for them in the discrimination complaint process. The representative may be a lawyer, but need not be, as for example, unionized workers may choose to have a union representative assist them on a complaint against their employer. Where mediation is involved, representation is encouraged, in part, because the mediator cannot offer legal advice to either party.

Initial investigation of the complaint
Initial process
When a worker believes his or her employer/union has subjected him or her to, or threatened him or her with discriminatory action or believes his or her employer has failed to pay them wages, he or she may contact WorkSafeBC, either by telephone or in writing. A prevention officer will contact the worker to initiate an investigation and will

Collect details of the complaint, along with a contact number.
Explain to the worker, and answer any questions about, the requirements under the Act, and the process, including the mediation option, for dealing with complaints.

The prevention officer will, at this initial stage, where the worker wishes to remain anonymous, protect the identity of the worker. However, the worker will also be told that their anonymity and the particulars of the complaint cannot be assured where the worker wishes WorkSafeBC to proceed with an inquiry into the complaint.

The prevention officer will document the information collected from the worker in a consultation record (CR). Where the complaint is against a union, the CR will be documented under the union firm number. The prevention officer will separately retain all relevant information and not attach these to the CR (e.g. written dismissal letter, Record of Employment, pay stubs, employee evaluations, etc.).

Site inspection
If the worker has made reports of unsafe acts or conditions at a workplace, or if a site inspection is necessary to determine if there is an occupational health and safety component to the complaint, the prevention officer may conduct a workplace inspection and issue the appropriate orders in an Inspection Report (IR). Any violations of the Act or the OHS Regulation should be dealt with in accordance with normal inspection protocol. IR's are not to include any particulars regarding the worker's complaint of discriminatory action; however, prevention officers should note reference to any CR's in the "related document" field in the IR. If the IR is relevant to the complaint of discriminatory action, the prevention officer should ensure a copy of the IR is forwarded to the Compliance Section along the other complaint materials.

Prevention officers will not write specific orders under Division 6; issuance of these types of orders is the responsibility of the Compliance Section case officer.

Prevention officer determines if there is a prima facie case of discriminatory action or failure to pay wages
The onus initially lies with the worker to provide sufficient information to indicate that discriminatory action/a failure to pay wages may have occurred. For discriminatory action complaints, the worker will need to provide some evidence which may indicate the employer has adversely affected his or her employment, as set out in section 150 (or in the case of a union, that it has adversely affected his or her membership in the union), as a result of one or more of actions, described in section 151. The same onus of providing "some evidence" lies with the worker in complaints about an employer's failure to pay wages. In both types of complaints, this is referred to as a prima facie case -- a bare outline of a complaint that will prevail until contradicted and overcome by other evidence.

Where a worker makes out a prima facie case, section 152(3) of the Act provides that "...the burden of proving that there has been no such contravention is on the employer or the union, as applicable." The employer/union bears the burden of proving, on a balance of probabilities, that actions it took against the worker were not at all for reason of any of actions protected under section 151. The same onus lies with the employer to rebut a worker's failure to pay wages complaint.

When meeting with the worker, the prevention officer will need to assess whether the worker has made out a prima facie case. This will assist the prevention officer in determining how extensive their inquiries will need to be.

The worker is not required to prove that discriminatory action occurred to make a complaint needing further inquiry by the prevention officer, only that there is some evidence of discriminatory action. For example, in most cases, a complaint describing a dismissal for reporting an occupational health and safety concern (with basic particulars such as dates and locations) will be a sufficient basis for proceeding to the next step in the inquiry process.

Processes based on prevention officer's assessment of whether a prima facie case exists
Following the prevention officer's assessment of whether there is a prima facie case, there are three possible scenarios

A prima facie case of discrimination or failure to pay wages exists - worker wishes to proceed with a complaint
A prima facie case of discrimination or failure to pay wages exists - worker does not wish to proceed with a complaint
Prevention officer considers that the worker has not made a prima facie case.

The following sections explain the processes for these scenarios.

A prima facie case of discrimination orfailure to pay wages exists - worker wishes to proceed with a complaint
Where the prevention officer thinks a worker has made a prima facie case, the prevention officer should explain to the worker, and have him or her sign the following:

Worker Consent Form (Form# 57W4)
Election Form (Form# 57W2), where the worker is a union worker, acknowledging that they choose not to pursue their complaint through the grievance process

At this stage, at his or her discretion, a prevention officer may also ask the worker to complete the Worker Complaint of Discriminatory Action Form (Form# 57W1), which includes an information sheet for workers who are filing a complaint of discriminatory action or failure to pay wages, and the Additional Resources List (Appendix A). The worker is to be advised that regardless of when the written complaint form is completed, it must be received by WorkSafeBC within the 60-day or 1-year time limits set out in the Act.

The prevention officer will contact the employer/union when all of the following conditions are met, where applicable:

The prevention officer assesses if the worker has made out a prima facie case for a complaint.
In the case of a union worker, where the worker has signed a Worker Election Form, acknowledging that he or she does not wish to pursue his or her complaint through the grievance process but wishes to pursue his or her complaint with WorkSafeBC.
The worker wishes WorkSafeBC to proceed with investigating the complaint, and has signed the Worker Consent Form authorizing WorkSafeBC to contact the employer/union.

In his or her communications with the employer/union, the prevention officer will

Explain that a complaint of discrimination has been made and the purpose of the investigation
Describe the process
Ask the employer/union to explain what has occurred

The prevention officer will proceed as they would with any other investigation

Interview the company principals
Review the company's records
Request copies of relevant documentation
Interview material witnesses
Conduct a site inspection, as appropriate

The prevention officer should provide the employer with a copy of the Additional Resources List (Appendix A).

The prevention officer should not try to weigh the evidence provided by the employer and determine if the employer has met its burden of proof of showing that there has been no discriminatory action or failure to pay wages. For example, if the employer seems to provide evidence/information which appears to refute the worker's allegation, the prevention officer may not conclude that the worker's prima facie case has no merit. Rather, at the adjudication level, a case officer in the Compliance Section will consider and weigh the employer's/union's response.

Where a worker has made a prima facie complaint and the employer refuses to cooperate with the prevention officer's investigation, the worker's complaint should be sent to the Compliance Section with a note stating that the employer refused to cooperate with the investigation. As a matter of law, where a worker has made out a prima facie case, and where the employer does not respond to that case, the worker's complaint will succeed.

The prevention officer will document the information collected from the employer in a CR and note the discrimination number. The prevention officer will retain all relevant documentation for future forwarding to the Compliance Section.

Where the worker and employer/union express an interest in attempting to resolve the complaint between them, the prevention officer, at his or her discretion, may facilitate settlement discussions.

If the worker and the employer/union can agree upon a settlement of the worker's complaint, the prevention officer will complete the Prevention Officer Settlement Report confirming that the matter has been settled. On completion, this report and any CRs, IRs and prevention officer notes will be forwarded to the Compliance Section. No other documentation should be made or retained, regarding particulars of the settlement discussions.

If the worker or employer cannot agree on a settlement, the prevention officer will advise the worker of their right to submit a written Worker Complaint of Discriminatory Action Form to the Compliance Section of WorkSafeBC and will provide that form to the worker (if this has not already been done).

The prevention officer will then forward the worker's completed Worker