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Policies Workers Compensation Act

Policies Workers Compensation Act Contents

PART 1

Policies WCA Part 1 Division 1
D24-2-1 RE: Imposition of Levies - Independent Operators

Policies WCA Part 1 Division 5
D24-73-1 RE: Imposition of Levies - Charging of Claim Costs

PART 3

Policies WCA Part 3 Division 1
D1-107-1 RE: Application of the Act and Policies
D1-108-1 RE: Application of Part 3 - Where Jurisdictional Limits Exist

Policies WCA Part 3 Division 2
     D2-111-1 RE: Assignment of Board Authority
     D2-111-2 RE: Zone First Aid Competitions
     D2-111-3 RE: Board Approval
     D2-113-1 RE: Varying or Cancelling Previous Decisions or Orders

Policies WCA Part 3 Division 3
     D3-115-1 RE: General Duties - Employers
     D3-116-1 RE: General Duties - Workers
     D3-117-1 RE: General Duties - Supervisors
     D3-118-1 RE: General Duties - Multiple-Employer Workplaces
     D3-119-1 RE: General Duties - Owners
     D3-120-1 RE: General Duties - Suppliers
     D3-121-1 RE: General Duties - Directors and Officers of a Corporation
     D3-123/124-1 RE: General Duties - Overlapping Obligations

Policies WCA Part 3 Division 4
     D4-125-1 RE: Joint Committees - When a Committee is Required
     D4-132/133-1 RE: Joint Committees - Procedures and Resolving Disagreements
     D4-134-1 RE: Joint Committees - Time Off Work
     D4-135-1 RE: Joint Committees - Educational Leave
     D4-138-1 RE: Joint Committees - Employer Must Post Committee Information
     D4-139-1 RE: Joint Committees - Worker Health and Safety Representative
     D4-140-1 RE: Joint Committees - Participation of Worker Representative in Inspections

Policies WCA Part 3 Division 6
     D6-150/151/152-1 RE: Discriminatory Actions/Failure to Pay Wages - Scope
     D6-153-1 RE: Discriminatory Actions/Failure to Pay Wages - Investigation of Complaint
     D6-153-2 RE: Discriminatory Actions/Failure to Pay Wages - Remedies

Policies WCA Part 3 Division 7
D7-154-1 RE: Posting of Information - Requirements

Policies WCA Part 3 Division 8
D8-160-1 RE: First Aid Equipment - Imposition of Special Rate of Assessment

Policies WCA Part 3 Division 9
D9-166-1 RE: Variance Orders - Information Required
D9-168-1 RE: Variance Orders - Consultation on Application

Policies WCA Part 3 Division 10
D10-172-1 RE: Accident Reporting and Investigation - Immediate Notice of Certain Accidents (Major Release of Hazardous Substance)

Policies WCA Part 3 Division 15
D15-215-1 RE: Prosecutions - Due Diligence

Policies WCA Part 3 Division 16
D16-223-1 RE: Collection by Assessment or Judgment

Policies Workers Compensation Act Part 1 Division 1

Certain provisions from Part 1 of the Workers Compensation Act have occupational health and safety implications.

The Items for these provisions have been grouped here using the prefix D24.

Policy Item D24-2-1
RE: Imposition of Levies - Independent Operators

BACKGROUND

1. Explanatory Notes
In directing that Part 1 applies to independent operators, the Board may specify the applicable health and safety obligations.

2. The Act
Section 2(2):

The Board may direct that this Part [i.e., Part 1] applies on the terms specified in the Board's direction

to an independent operator who is neither an employer nor a worker as though the independent operator was a worker ....

POLICY

If an independent operator to whom Part 1 applies under section 2(2) violates the occupational health and safety obligations set out in the Board's direction, the Board may levy an administrative penalty against the independent operator.

Where appropriate, the Board will apply the policies and practices set out in the following Items to an administrative penalty levied against an independent operator to whom Part 1 applies under Section 2(2):

D12-196-1, -2, -3, -6;
D12-196-8;
D12-196-10, -11; and
D16-223-1.

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s. 2(2), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the policy statement to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:

Policies Workers Compensation Act Part 1 Division 5

Certain provisions from Part 1 of the Workers Compensation Act have occupational health and safety implications.

The Items for these provisions have been grouped here using the prefix D24.

Policy Item D24-73-1
RE: Imposition of Levies - Charging of Claim Costs

BACKGROUND

1. Explanatory Notes
Section 73 authorizes the Board to charge claims costs to the employer in certain circumstances. The maximum amount the Board may levy is adjusted annually in accordance with the Consumer Price Index under section 25 of the Act. Starting January 1, 2008, the maximum amount is $48,244.78.

2. The Act
Section 73:

(1) If
(a) an injury, death or disablement from occupational disease in respect of which compensation is payable occurs to a worker, and

(b) the Board considers that this was due substantially to

(i) the gross negligence of an employer,
(ii) the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases, or
(iii) the failure of an employer to comply with the orders or directions of the Board, or with the regulations made under Part 3 of this Act,

the Board may levy and collect from that employer as a contribution to the accident fund all or part of the amount of the compensation payable in respect of the injury, death or occupational disease, to a maximum of $48,244.78.

(2) The payment of an amount levied under subsection (1) may be enforced in the same manner as the payment of an assessment may be enforced.

POLICY

This section may be applied if:

the grounds for an administrative penalty under Item D12-196-1 are met; and
a serious injury or disablement from occupational disease, or a death, results from a violation of the regulations.

The Board has a discretion as to the amount charged under section 73(1) up to the maximum amount. A decision to charge claim costs may include the cost of future amounts of compensation that may be incurred after the decision if those future costs result from matters currently under consideration by the Worker and Employer Services Division, the Review Division or the Workers' Compensation Appeal Tribunal.

Where appropriate, the Board will apply the policies and practices set out in the following Items to the charging of claim costs under section 73(1):

D12-196-1, -2, -3, -4;
D12-196-8;
D12-196-10, -11; and
D16-223-1.

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	July 1, 2008
AUTHORITY:	s. 73(1), Workers Compensation Act
CROSS REFERENCES:	See also Accident Reporting and Investigation - Types of Incidents Covered (Item D10-172); Administrative Penalties - Criteria for Imposing (Item D12-196-1);
HISTORY:	Item developed to align prevention policy with section 73(1) of the Workers Compensation Act so that the Board's discretion as to the amount of the claim cost levy is not fettered, effective July 1, 2008. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the policy statement to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective December 31, 2003 a consequential change was made to include a reference to new Item D12-196-4 and the maximum amount referenced in section 73(1) was updated.
APPLICATION:	This policy applies to all decisions, including appellate decisions, to charge claim costs on and after 2003 July 1, 2008.

Policies Workers Compensation Act Part 3 Division 1

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

BACKGROUND

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

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

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

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

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

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

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

Section 99(2):

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

POLICY

In making decisions, Board officers must take into consideration:

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

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

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

Section 99(2) of the Act provides that:

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

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

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

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

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

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

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

PRACTICE

For any relevant PRACTICE information, readers should consult the Prevention Division's Guidelines available on the WCB website.

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	ss. 82(1)(a) and 99(2), Workers Compensation Act
CROSS REFERENCES:
HISTORY:
APPLICATION:	This policy applies to decisions on or after March 3, 2003.

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

BACKGROUND

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

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

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

These limits are largely matters of general law over which the Board has no control. They are also too complex to state in this Item. Jurisdictional information is available from the Prevention Division and in the OHS Guidelines. Reference works on constitutional law and the consolidated federal and provincial statutes may also be of assistance.

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

2. The Act
Section 108:

(1) Subject to subsection (2), this Part applies to
(a) the Provincial government and every agency of the Provincial government,

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

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

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

(a) mines to which the Mines Act applies,

(b) railways to which the Railway Act applies, 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.

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

Section 114:

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

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

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

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

POLICY

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

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

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

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

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

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

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

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

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

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

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

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

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

PRACTICE

For any relevant PRACTICE information, readers should consult the Prevention Division's OHS Guidelines available on the WCB website.

EFFECTIVE DATE:	October 1, 2001
AUTHORITY:	s.108, Workers Compensation Act
CROSS REFERENCES:	See also s.114, Workers Compensation Act
HISTORY:	A housekeeping change was made on December 14, 2001.
APPLICATION:	This Item applies to situations arising on and after October 1, 2001.

Policies Workers Compensation Act Part 3 Division 2

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

BACKGROUND

1. Explanatory Notes
Section 111 sets out the Board's functions, duties and powers in matters relating to occupational health and safety. The "Board" for this purpose is the corporation known as the Workers' Compensation Board. It is necessary to determine what persons should exercise the Board's authority in various areas or provide a mechanism for making that determination. The Board of Directors does this through policy-making under Section 82 of the Act. Section 113 sets out the Board's privative clause with respect to the exercise of its authority under Part 3.

2. The Act
Section 82(1):

The board of directors must

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

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

Section 111(1):

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

Section 111(2):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 113(1):

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

POLICY

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

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

The President/Chief Executive Officer (CEO) has the authority to exercise the remaining powers and responsibilities described in Part 3. The President/CEO also has the authority to assign these powers and responsibilities to divisions, departments, categories of officers or individual officers of the Workers' Compensation Board. President/CEO assignments will state whether the assignee has the authority to further assign the power or responsibility or whether it must be exercised personally.

The powers and responsibilities described in Part 3 will be carried out primarily by the Board's Prevention Division and must be exercised in accordance with the policies of the Board of Directors.

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

PRACTICE

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

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

Policy Item D2-111-2
RE: Zone First Aid Competitions

BACKGROUND

1. Explanatory Notes
Section 111 sets out the Board's mandate under Part 3. Section 111(2)(e), (f), (i) and (j) authorizes the Board to undertake various initiatives to promote occupational health and safety and occupational environment. Among these initiatives, the Board sponsors first aid competitions to promote occupational health and safety and raise public awareness about occupational first aid.

2. The Act
Section 111(1):

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

Section 111(2), in part:

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

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

(f) to promote public awareness of matters related to ocupational health and safety and occupational environment; ...
(i) to establish programs of grants and awards in relation to its responsibilities under this Act;

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

POLICY

Zone first aid competitions are held throughout the Province. The number and location of zone competitions are generally based on the Prevention Division's regional boundaries. The Board may, where necessary, increase or decrease the number of zone competitions.

Each zone has an agency which coordinates the zone competition, often with the assistance from the Board.

The agency may apply in writing to the Board for financial assistance. The agency must provide:

the date, time and location of the competition and banquet;
a copy of the financial statement from the immediate past year's competition or a proposed budget for the present competition if this is the first zone competition for the agency;
the degree of assistance required from the Board;
the name and address of the contact person;
the amount of the entry fee per team; and
the number of teams expected to participate.

(a) Standards

The following standards apply to zone first aid competitions:

The competition "problem" will be devised around an industrial setting, and the "patient" care provided must be based upon acceptable first aid practice.
Each team must have four members.
Team members must be at least 16 years of age, but are not required to possess a valid first aid certificate.
Each team member will be identified as belonging to a particular team through some identifier such as a uniform, badge or armband.
Each entry will be judged as a team and each member will be observed individually.
The "problem" and marking sheets will be drawn by those responsible for the competition and the Chief Judge; their findings will be final.
So that there is no possibility of anyone knowing the "problem" beforehand, the teams will be locked up until they appear on the scene.
Team captains will draw for positions prior to the competition.
A coach or member of a team must not be a member of any committee or an employee involved in the organization or presentation of any competition in which the coach or team is participating.
Completed entry forms must be received by the competition committee by a date prior to the competition and established by the coordinating agency.
If it becomes necessary to limit the number of teams at any zone competition, the decision of the Chief Judge will be final.
The winning team of each zone competition may be invited to compete for the provincial trophy, if the zone competition has been properly conducted and a minimum of three teams have competed. The team representing a zone at the Provincial Competition must reside in that zone.

If these standards are not followed, the winning team may be at risk of not being invited to the Provincial Competition.

(b) Judging Rules

The following rules for judging apply to zone first aid competitions:

The competition must be judged by "common sense first aid". No specific first aid text will be followed because conditions seldom conform to a predicable pattern. In the same circumstances, individuals may react in different ways. The competitors must be prepared to assess and adapt to a wide range of situations. In short, the fullest and most efficient treatment possible under the circumstances will govern the marking.
The "problem" will have a scene as realistic as possible; the "patient" or "patients" will be coached as to behavior, and injuries simulated.
The teams will either see the accident happening, or be called to the scene so that, as far as practicable, everything they need regarding history, surroundings, light, assistance and materials available will be apparent.
The teams will use only the equipment specified by the competition coordinator and/or Chief Judge.
Team members are allowed only such additional items as they might normally be expected to carry with them, such as a handkerchief, tie, pocket knife, etc. Extra bandages are not allowed.
The "patients" will be supplied by the judges and/or competition committee.
Team members will be required to carry out, where necessary, all phases of transportation of injured people.

PRACTICE

There is no PRACTICE for this item.

EFFECTIVE DATE:	August 1, 2001
AUTHORITY:	s. 111(1) and (2)(e), (f), (i) and (j), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Replaces Policy No. 80.65 of the Prevention Division Policy and Procedure Manual
APPLICATION:	This Item results from the 2000/2001 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item continues the substantive requirements of Policy No. 80.65, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 80.65 was issued. Clarification has been provided regarding the location of zones for purposes of zone first aid competitions.

Policy Item D2-111-3
RE: Board Approval

BACKGROUND

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

2. The Act
Section 111(1):

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

Section 111(2), in part:

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

...

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

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

POLICY

The Board does not approve any program, product, machinery, equipment, or work process.

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

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

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

An acceptance under Part 3 and the regulations does not denote that the program, product, machinery, equipment or work process is endorsed, certified or approved by the Board. No person will advertise, mark, market or by any means portray that any program, product, machinery, equipment or work process is endorsed, certified or approved by the Board.

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	April 1, 2002
AUTHORITY:	s.111(1) and (2)(c) and (d), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Replaces Policy No. 1.2.1 of the Prevention Division Policy and Procedure Manual
APPLICATION:	This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item continues the substantive requirements of Policy No. 1.2.1, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.1 was issued.

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

BACKGROUND

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

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

2. The Act

Section 113(2) to (2.3):

113(2)

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

113(2.1)

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

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

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

113(2.2)

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

113(2.3)

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

Section 189:

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

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

POLICY

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

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

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

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

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

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

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

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

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

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

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

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

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

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s.113, Workers Compensation Act
CROSS REFERENCES:	See also Posting of Information -- Requirements (Item D7-154-1).
HISTORY:	Item developed to implement the Workers Compensation Amendment Act (No. 2), 2002, effective March 3, 2003.
APPLICATION:

Policies Workers Compensation Act Part 3 Division 3

Policy Item D3-115-1
RE: General Duties - Employers

BACKGROUND

1. Explanatory Notes
Section 115 sets out the general duties of employers under Part 3.

2. The Act
Section 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.

Section 115(2):

Without limiting subsection (1), an employer must

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

(b) ensure that the employer's workers

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

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

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

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

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

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

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

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

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

POLICY

There is no POLICY for this Item.

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.115, Workers Compensation Act
CROSS REFERENCES:	See also General Duties - Workers (Item D3-116-1), Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Suppliers (Item D3-120-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1); Due Diligence (Items D12-196-10 and D15-215-1)
HISTORY:
APPLICATION:

Policy Item D3-116-1
RE: General Duties - Workers

BACKGROUND

1. Explanatory Notes
Section 116 sets out the general duties of workers under Part 3.

2. The Act
Section 116(1):

Every worker must

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

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

Section 116(2):

Without limiting subsection (1), a worker must

(a) carry out his or her work in accordance with established safe work procedures as required by this Part and the regulations,

(b) use or wear protective equipment, devices and clothing as required by the regulations,

(c) not engage in horseplay or similar conduct that may endanger the worker or any other person,

(d) ensure that the worker's ability to work without risk to his or her health or safety, or to the health or safety of any other person, is not impaired by alcohol, drugs or other causes,

(e) report to the supervisor or employer

(i) any contravention of this Part, the regulations or an applicable order of which the worker is aware, and

(ii) the absence of or defect in any protective equipment, device or clothing, or the existence of any other hazard, that the worker considers is likely to endanger the worker or any other person,

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

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

POLICY

There is no POLICY for this Item.

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.116, Workers Compensation Act
CROSS REFERENCES:	See also General Duties - Employers (Item D3-115-1), Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Suppliers (Item D3-120-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1); Due Diligence (Item D15-215-1); Right to Refuse Unsafe Work Item D5-141-1
HISTORY:
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 117(1):

Every supervisor must

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

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

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

Section 117(2):

Without limiting subsection (1), a supervisor must

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

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

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

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

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

POLICY

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

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

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.117, Workers Compensation Act
CROSS REFERENCES:	See also General Duties - Employers (Item D3-115-1), Workers (Item D3-116-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Suppliers (Item D3-120-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1); Due Diligence (Item D15-215-1)
HISTORY:
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 118(1):

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

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

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

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

Section 118(2):

The prime contractor of a multiple-employer workplace must

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

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

Section 118(3):

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

POLICY

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

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

It does not matter whether:

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

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

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

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

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

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

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

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

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

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.118, Workers Compensation Act
CROSS REFERENCES:	See also General Duties - Employers (Item D3-115-1), Workers (Item D3-116-1), Owners (Item D3-119-1), Suppliers (Item D3-120-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1); Due Diligence (Item D15-215-1)
HISTORY:
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 106:

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

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

Section 119:

Every owner of a workplace must

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

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

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

POLICY

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

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

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

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

1. The owner knew or should have known that:

Category 1: Knowledge

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

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

Category 2: Control

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

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

(i) the risk of the potential harm, or

(ii) the extent of the potential harm,

to persons at or near the workplace; or

(b) possessed material information and either:

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

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

PRACTICE

For any other relevant PRACTICE information, readers should consult the Guidelines available on the WCB website.

EFFECTIVE DATE:	December 1, 2004
AUTHORITY:	s.119, Workers Compensation Act
CROSS REFERENCES:	See also sections 73 (Levies) and 111 (Board's mandate under this Part) of the Act; Part 3, Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences) of the Act; Policies in the Prevention Manual in Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences); and policy item #113.00 (Charging of Claims Costs - Introduction) of the Rehabilitation Services & Claims Manual , Volume II.
HISTORY:	On Decenber 1, 2004, provisions of the Act with respect to multiple owner situations were clarified, and the list of factors which Board officers consider before holding an owner responsible for a compliance issue were rewritten in a more directive manner.
APPLICATION:	To all situations in which an owner has responsibilities under section 119 of the Act on or after December 1, 2004.

Policy Item D3-120-1
RE: General Duties - Suppliers

BACKGROUND

1. Explanatory Notes
Section 120 sets out the general duties of suppliers. Section 106 defines "supplier" for this purpose.

2. The Act
Section 106:

"supplier" means a person who manufactures, supplies, sells, leases, distributes, erects or installs
(a) any tool, equipment, machine, device, or

(b) any biological, chemical or physical agent
to be used by a worker;

Section 120:

Every supplier must

(a) ensure that any tool, equipment, machine or device, or any biological, chemical or physical agent, supplied by the supplier is safe when used in accordance with the directions provided by the supplier and complies with this Part and the regulations,

(b) provide directions respecting the safe use of any tool, equipment, machine or device, or any biological, chemical or physical agent, that is obtained from the supplier to be used at a workplace by workers,

(c) ensure that any biological, chemical or physical agent supplied by the supplier is labeled in accordance with the applicable federal and provincial enactments,

(d) if the supplier has responsibility under a leasing agreement to maintain any tool, equipment, machine, device or other thing, maintain it in safe condition and in compliance with this Part, the regulations and any applicable orders, and

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

POLICY

There is no POLICY for this Item.

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	ss.106 and 120, Workers Compensation Act
CROSS REFERENCES:	See also General Duties - Employers (Item D3-115-1), Workers (Item D3-116-1), Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1); Due Diligence (Item D15-215-1)
HISTORY:
APPLICATION:

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

BACKGROUND

1. Explanatory Notes

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

2. The Act
Section 121:

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

Section 213:

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

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

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

POLICY

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

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

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	ss.121 and 213, Workers Compensation Act
CROSS REFERENCES:	See also General Duties - Employers (Item D3-115-1), Workers (Item D3-116-1), Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Suppliers (Item D3-120-1), Overlapping Obligations (D3-123/124-1); Due Diligence (Item D15-215-1)
HISTORY:
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 123:

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

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

Section 124:

If

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

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

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

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

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

POLICY

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

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

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

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

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

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

PRACTICE

For any other relevant PRACTICE information, readers should consult the Guidelines available on the WCB website.

EFFECTIVE DATE:	December 1, 2004
AUTHORITY:	ss.123 and 124, Workers Compensation Act
CROSS REFERENCES:	See also sections 73 (Levies) and 111 (Board's mandate under this Part) of the Act ; Part 3, Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences) of the Act ; Policies in the Prevention Manual in Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences); and policy item #113.00 (Charging of Claims Costs - Introduction) of the Rehabilitation Services and Claims Manual , Volume II.
HISTORY:	On December 1, 2004, provisions of the Act with respect to overlapping obligations were clarified.
APPLICATION:	To all situations in which more than one party shares the same obligations under Part 3 of the Act or the regulations on or after December 1, 2004.

Policies Workers Compensation Act Part 3 Division 4

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

BACKGROUND

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

2. The Act
Section 125:

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

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

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

Section 127:

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

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

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

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

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

POLICY

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

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

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

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

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

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

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

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.125, Workers Compensation Act
CROSS REFERENCES:	See also Joint Committees - Worker Health and Safety Representatives (Item D4-139-1)
HISTORY:
APPLICATION:

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

BACKGROUND

1. Explanatory Notes
A number of provisions in Division 4 provide for a referral to the Board for resolution of various disagreements. These provisions include:

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

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

2. The Act
Section 128:

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

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

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

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

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

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

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

Section 131:

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

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

Section 132:

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

Section 133:

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

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

(a) indicating acceptance of the recommendation, or

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

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

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

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

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

POLICY

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

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

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

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

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

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

PRACTICE

There is no PRACTICE for this Item.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	ss.128, 131, 132 and 133; Workers Compensation Act
CROSS REFERENCES:	See also Joint Committees - Time off Work (Item D4-134-1), Educational Leave (Item D4-135-1), Employer Must Post Committee Information (Item D4-138-1), Worker Health and Safety Representative (Item D4-139-1)
HISTORY:
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 134:

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

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

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

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

POLICY

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

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

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

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

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

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

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

PRACTICE

There is no PRACTICE for this Item

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

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

BACKGROUND

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

2. The Act
Section 135:

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

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

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

POLICY

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

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

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

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

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

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

PRACTICE

There is no PRACTICE for this Item.

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