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Preliminary Issue September 15, 2015
Section 186.1 of the Workers Compensation Act ("Act") states:
(1) The Board may enter into an agreement with an employer if the Board considers that
(a) the employer has contravened, or failed to comply with, a provision of this Part or the regulations,
(b) the employer has not contravened, or not failed to comply with, the same provision described in paragraph (a) within the 12 month period immediately preceding the contravention or failure as set out in that paragraph,
(c) the health or safety of workers, for which the employer has responsibilities under this Act, is not at immediate risk, and
(d) entering into the agreement is appropriate in the circumstances.
(2) An agreement entered into under subsection (1)
(a) must be in writing,
(b) must describe one or more actions the employer agrees to take, which may include one or more expenditures the employer agrees to make, to remedy the employer's contravention or failure as setout in subsection (1)(a) or the adverse effects that resulted from that contravention or failure,
(c) must set out the time frame within which the employer, with respect to each action described under paragraph (b) of this subsection, agrees to
(i) take the action, and
(ii) report to the Board on the action taken,
(d) must specify the date the agreement ends,
(e) must set out the required manner, form and content of the report referred to in paragraph (c)(ii) of this subsection, and
(f) may, subject to subsection (4), be amended if agreed to by the Board and the employer.
(3) The employer must, as soon as practicable after
(a) entering into an agreement under subsection (1),
(i) provide a copy of the agreement to the joint committee or worker health and safety representative, as applicable, or
(ii) if there is no joint committee or worker health and safety representative, post a copy of the agreement at the workplace, and
(b) reporting to the Board under subsection (2) (c) (ii),
(i) provide a copy of the report to the joint committee or worker health and safety representative, as applicable, or
(ii) if there is no joint committee or worker health and safety representative, post a copy of the report at the workplace.
(4) The Board must rescind an agreement entered into under subsection (1) if the Board considers that
(a) the employer has failed to
(i) take any of the actions described under subsection (2) (b) within the time frame set out for the action in subsection (2)(c)(i), or
(ii) report to the Board within the time frame set out in subsection (2)(c)(ii),
(b) the employer intentionally provided false or misleading information in relation to the agreement, or
(c) the health or safety of workers is at immediate risk, based on information received by the Board after the agreement was entered into.
(5) The Board may rescind an agreement entered into under subsection (1) if the Board considers that the agreement no longer adequately protects the health or safety of workers.
(6) A rescission of an agreement under subsection (4) or (5) takes effect immediately despite the employer not having received notice.
(7) As soon as practicable after rescinding an agreement under subsection (4) or (5), the Board must
(a) make reasonable efforts to provide verbal notice of the rescission to the employer, and
(b) send written notice of the rescission to the employer.
(8) Section 221 (4) to (6) does not apply to the sending of written notice under subsection (7)(b).
(9) The employer must, as soon as practicable after receiving written notice under subsection (7)(b),
(a) provide a copy of the written notice to the joint committee or worker health and safety representative, as applicable, or
(b) if there is no joint committee or worker health and safety representative, post a copy of the written notice at the workplace.
Purpose of guideline
The purpose of this guideline is to provide interim guidance on the use of compliance agreements pending the issuance of final WorkSafeBC Policy under section 186.1 of the Act.
Division 12 of Part 3 of the Act sets out WorkSafeBC's authority to use a variety of tools to ensure compliance with the Act and OHS Regulation ("Regulation"). One of those tools is the compliance agreement. Instead of issuing an order, WorkSafeBC may, in certain circumstances, enter into a compliance agreement in which a responsive employer voluntarily agrees to correct occupational health and safety ("OHS") contraventions within a short specified timeframe, and report back by a particular date.
Interim Policy Item D12-186.1-1 ("Interim Policy") outlines when WorkSafeBC may enter into or cancel a compliance agreement. This guideline provides additional information regarding the use of compliance agreements.
When a compliance agreement will not be offered
The Interim Policy provides that WorkSafeBC will not enter into a compliance agreement with an employer under the following circumstances:
When a compliance agreement may be appropriate
Compliance agreements are offered at WorkSafeBC's discretion, and not all violations can be appropriately addressed by this tool. As stated in the Interim Policy, a compliance agreement can only be considered if WorkSafeBC believes that the employer will likely fulfill its obligations under the agreement. In other words, is a compliance agreement the appropriate tool to motivate the employer to comply?
Some of the factors that must be considered when deciding whether a compliance agreement is appropriate in the circumstances include the following:
Requirements of compliance agreements
The Interim Policy outlines the requirements of a compliance agreement. It must:
In addition, the compliance agreement will describe the following:
Compliance agreement deadlines
The action deadline is the date by which the employer must complete its corrective action(s). This timeframe will be mutually agreed upon by WorkSafeBC and the employer, and it must be reasonable. Generally, 14 days from the date of the violation will be considered to be reasonable, but the prevention officer will take into account all relevant factors. For example, if one of the corrective actions entails installing new equipment, the time it takes to supply the equipment will be taken into consideration. On the other hand, if an OHS violation can reasonably be corrected within a shorter timeframe (e.g., seven days), the action deadline will be agreed upon accordingly. The corrective actions contained in a compliance agreement are intended to be completed as soon as reasonably possible.
The report deadline is a reasonable, mutually agreed-upon date by which the employer must report back to WorkSafeBC on corrective actions taken. It will typically be seven days following the action deadline.
It is the employer's sole responsibility to meet the action and report deadlines. Failure to meet these deadlines will result in cancellation of the compliance agreement.
The agreement end date will generally be 14 days after the report deadline. The prevention officer's assessment of whether the agreement has been complied with may include a review of documentation provided by the employer and/or a site inspection; this will be documented in writing.
Amending a compliance agreement
While the compliance agreement is still in effect (i.e., it has not ended or been cancelled), WorkSafeBC and the employer can agree to an amendment in writing. As stated in the Interim Policy, when considering whether an amendment is appropriate, the prevention officer will consider a number of factors on a case-by-case basis, including the employer's progress towards compliance.
In many cases, an amendment may simply consist of an extension of the action and/or report deadlines. These deadlines may be extended provided the request for an extension is made prior to the expiry of that particular deadline. WorkSafeBC does not have the discretion to extend a deadline that has been missed. Extensions of time must be reasonable and documented through an amended compliance agreement.
Cancelling a compliance agreement
The Interim Policy provides that a compliance agreement will be cancelled by WorkSafeBC if:
While the cancellation takes effect immediately whether or not the employer receives notice, the prevention officer will send written notice to the employer and will make reasonable efforts to provide verbal notice as well.
Compliance agreements require employers to post the following documents at the workplace:
The employer must also provide copies of the above documents to the joint health and safety committee or worker health and safety representative as appropriate.
Issuance of orders
As set out in the Interim Policy, if a compliance agreement is entered into, WorkSafeBC will not issue an order for any violation specifically described in it while that specific compliance agreement is in effect. In addition, if the employer satisfactorily completes the compliance agreement, WorkSafeBC will not retroactively issue an order for violations addressed by the agreement.
Except in exceptional circumstances, WorkSafeBC will issue orders when:
Withdrawn September 30, 2009 (please refer to G-D3-116 Orders to workers)
Issued June 26, 2003; Editorial Revision June 2005; Revised April 25, 2012
This guideline discusses the authority for and the circumstances where an officer of the Board may issue an order on a person or employer, even though there has been no violation of the Workers Compensation Act ("Act") or the regulations.
Section 187 of the Act states:
(1) The Board may make orders for the carrying out of any matter or thing regulated, controlled or required by this Part or the regulations, and may require that the order be carried out immediately or within the time specified in the order.
(2) Without limiting subsection (1), the authority under that subsection includes authority to make orders as follows:
(a) establishing standards that must be met and means and requirements that must be adopted in any work or workplace for the prevention of work related accidents, injuries and illnesses;
(b) requiring a person to take measures to ensure compliance with this Act and the regulations or specifying measures that a person must take in order to ensure compliance with this Act and the regulations;
(c) requiring an employer to provide in accordance with the order a medical monitoring program as referred to in section 161;
(d) requiring an employer, at the employer's expense, to obtain test or assessment results respecting any thing or procedure in or about a workplace, in accordance with any requirements specified by the Board, and to provide that information to the Board;
(e) requiring an employer to install and maintain first aid equipment and service in accordance with the order;
(f) requiring a person to post or attach a copy of the order, or other information, as directed by the order or by an officer;
(g) establishing requirements respecting the form and use of reports, certificates, declarations and other records that may be authorized or required under this Part;
(h) doing anything that is contemplated by this Part to be done by order;
(i) doing any other thing that the Board considers necessary for the prevention of work related accidents, injuries and illnesses.
(3) The authority to make orders under this section does not limit and is not limited by the authority to make orders under another provision of this Part.
All orders made by WorkSafeBC are issued under the authority of section 187, which allows orders for past violations as well as orders to prevent future violations.
Section 188(4) of the Act states:
An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.
Generally, prevention officers will only issue compliance orders if non-compliance with the Act or the regulations is observed or determined during a workplace inspection, inquiry, or investigation. However, there may be occasions when a prevention officer will issue compliance order(s) even when no violation of the Act or the regulations has occurred. Policy on the authority of a prevention officer to make orders under sections 187 and 188 of the Act are set out in Prevention Manual Items D12-187-1 and D12-188-1. OHS Guideline G-D12-188(4) is related to this topic. There is no published restriction or condition that limits the authority of a prevention officer of WorkSafeBC to issue an order only in the circumstances where a violation is occurring or has occurred.
A prevention officer may make an order to an employer even though no violation of the Act or regulations has occurred. Such orders will not be issued routinely, but rather will be issued if the officer has evidence that the person subject to the order does not intend to comply in the future. Mere lack of knowledge about the Act or regulations is not sufficient to show an intention not to comply. Lack of knowledge (without additional evidence of intention not to comply) can and should be the subject of discussion between the officer and the employer representative or other relevant party, and the officer will document such discussion in the inspection text of an inspection report (IR) or consultation record (CR).Express or implied intent not to comply
In order for an officer to issue an order where there is no violation of the Act or the regulations, the prevention officer must identify (and support with evidence) an express or implied intention not to comply by the person subject to the order. Where a person expressly informs the prevention officer that he or she will not comply with the requirements of the Act or the regulations, the prevention officer may issue an order requiring that person to take the appropriate steps to achieve compliance. A person may express an intention not to comply in a number of ways. For example, he or she may claim an inability to comply because of lack of knowledge, economics (such as saying they can't afford to comply), impracticality of compliance, or related arguments. In this case, the officer should explore with the person his or her intention to address any impediments to compliance. If the person is unwilling or unable to address impediments to compliance, the officer may issue an order requiring that person to take the appropriate steps to achieve compliance. However, if the person agrees to address the impediments to compliance he or she has raised, then the prevention officer should not write an order. The prevention officer must record the particulars of this discussion in the inspection text of the IR or on a CR.
There may be occasions when a prevention officer receives information from other individuals at a workplace that a person has no intention of complying with the Act or the regulations. In this instance, the prevention officer will need to inquire directly of that person with regard to his or her intention regarding compliance. Statements from third parties, without further investigation, are not sufficient to establish an intention not to comply.
An implied intent not to comply is determined by examining the circumstances that indicate that the person will not comply. Some key elements that should be present are:
For example, consider the situation if some friable asbestos insulation on a pipe elbow has been hit and damaged, resulting in asbestos contamination of a small area of a plant. The employer has response procedures for such an event, and the crew implements them immediately. The affected area is barricaded and signs are posted to keep workers clear of the danger area. The emergency repair crew is summoned to patch the damaged area and clean up the asbestos debris. A prevention officer inspecting the workplace arrives on the scene just as the supervisor and repair crew start to put on their protective clothing prior to entry into the hazard area. The prevention officer notices one of the crew is not clean-shaven where the respirator will need to seal against the worker's face. Section 8.39(2) of the OHS Regulation ("Regulation") applies. The prevention officer questions the supervisor and the worker regarding their intentions. Both the supervisor and the worker are aware of the requirements of section 8.39(2). But since this is a "small job" and they do not have any shaving equipment readily available, they want to get on with the repair and cleanup, rather than wait for the worker to shave. The prevention officer intervenes and issues an order that the worker is not to put on a respirator and enter the danger area until he is clean-shaven where the respirator seals with his face. Note at this point there has been no violation of section 8.39(2), so the text of the order does not indicate a violation has occurred. The order could be worded as follows:
A worker (John Doe) assigned to repair and cleanup work in an asbestos contaminated area was about to don a respirator and enter the asbestos contaminated area and was not clean-shaven where the respirator is required to seal with his face. Section 8.39(2) of the Regulation applies. A worker required to use a respirator that requires an effective seal with the face for proper functioning must be clean-shaven where the respirator seals with the face. Ensure any worker required to use such a respirator is clean-shaven where the respirator seals with the worker's face before donning the respirator and entering the hazard area.
Orders of this type will normally be issued only when there is a significant risk to workers should the work proceed without compliance. Note the order does not reference section 187 of the Act. That section provides the authority for the officer to issue the order. There is no violation of section 187. However, to allow WorkSafeBC to locate and review these types of orders, the prevention officer will include reference to "WCA 187(2)" in the "Regulations Referenced" field for the order, in addition to any other sections of the Act or regulations referenced in the order.Absence of express or implied intent not to comply
In the absence of an express or implied intent not to comply with the Act or the regulations, a prevention officer should not write an order. Lack of knowledge by the person is not sufficient for a finding of a lack of intention to comply. If the person displays lack of knowledge, the prevention officer should point out the applicable sections of the Act and/or the regulations regarding the work activity. The discussion is to be recorded in the inspection text portion of the IR, or as a CR. This inspection text or CR may be referenced to provide evidence of prior knowledge if any future violations are identified.
There may be some situations where an order is necessary to ensure an employer or other person takes specific steps to address a hazard, even though there is no express or implied intent not to comply with the Act or the regulations. In such circumstances, the order may only be issued with the approval of the Vice President, Prevention Services.
Issued December 21, 2009
Purpose of guideline
The purpose of this guideline is to advise about the correct approach to including information in an inspection report ("IR") which is subject to the Freedom of Information and Protection of Privacy Act ("FIPPA").
FIPPA came into force in October 1993 and applies to all provincial ministries, Crown corporations, agencies, commissions, and boards, including WorkSafeBC. FIPPA governs how WorkSafeBC collects, uses, and discloses information. In particular, FIPPA compels WorkSafeBC to protect personal information.
Personal information in IRs
The name or other identifying personal information about a worker should not be included in an IR or in any other records that are available to the public upon request to WorkSafeBC (Prevention Records). Personal information is any recorded information about an identifiable individual other than business contact information. The following are some examples of personal information that should not be disclosed in an IR about an identifiable individual:
Examples of how to include personal information when needed
There may be a small number of cases where an IR will need to contain some personal information in order to support the WorkSafeBC prevention officer's decision. Only information that is absolutely necessary to exercise WorkSafeBC's mandate should be included. In those situations, an attempt should be made to present the information in a way that minimizes its personal nature, and if possible, documented in a consultation record ("CR") linked to the IR.
The name of individuals should not be disclosed in an IR. If it is necessary to document the actions of more than one worker in an IR, the prevention officer may refer to them as "worker A," "worker B," etc.
The name of individuals accompanying the prevention officer as worker and employer representatives will be included in an IR in the field provided in FirmFile. The name of the representative should not be included in the IR text if an observed violation relates directly to that individual. If a violation does relate directly to a representative, the IR text will simply refer to "a worker." For example: "a worker was not wearing adequate hearing protection." The IR should not contain any additional personal information about that individual.
Age and employment experience:
In cases where the age or employment experience of a worker is relevant to the orders or observations in an IR, that information should be expressed as a range. For example, if the inspection relates to the orientation and training provided to a "young worker," the IR may state that the individual is under 25 years of age, rather than specifying the worker's exact age.
Where it is relevant to document that a particular worker has extensive experience in a particular occupation, the IR may note that the worker has "more than 20 years of experience," or simply "substantial years of experience." Similarly, in the case of a "new worker," the IR should not specify the exact amount of time the worker has been employed.
There are some situations where medical information will be relevant to the inspection or order. For example, impairment may have been a factor in an incident or affected the safety of a worksite. In that case, it would be appropriate for the IR to state that the worker was impaired. However, the IR should not reference specific toxicology results or what has caused the impairment (drugs, alcohol, medication, etc). Similarly, in cases where a worker is exposed to a contagion or blood-borne pathogen such as Hepatitis C or HIV, the IR should state that the worker was exposed to a "blood-borne pathogen" or an "immune compromising condition." However, the IR should not disclose that the exposure resulted in the worker being diagnosed with a specific medical condition.
Workers' personal opinions about their employers or health and safety matters should not be included in an IR. These matters should instead be documented in a CR.
Confidential business information in IRs
In addition to personal information, FIPPA also protects information that would reveal trade secrets, or commercial, financial, labour relations, scientific, or technical information. If that information is provided in confidence and disclosing it would harm the business interests of a firm, it should not be included in an IR.
Orders to workers
As stated in OHS Guideline G-D3-116, where an order to worker ("OtW") is issued as the result of a prevention officer's findings on an inspection, the applicable IR issued to the employer should reference the number of the OtW report. However, the name and other personal information about the worker related to the OtW should not be included in the IR.
Issued May 15, 2002; Revised January 1, 2004; Editorial Revision October 14, 2004
Section 188(4) of the Workers Compensation Act ("Act") states:
An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.
Under Policy Item D2-111-1 of the Prevention Manual, the President and Chief Executive Officer has assigned to the Vice President, Worker and Employer Services Division, the authority to exercise WorkSafeBC's power under section 188(4) to establish restrictions and conditions on the making of orders under Part 3 of the Act.
The Occupational Health and Safety ( OHSR) took effect on April 15, 1998. Many new requirements were enacted under the OHSR, and therefore, a period of one year was granted to comply with the new requirements. The initial one-year period was extended by the Vice President for some sections where there were practical difficulties with compliance by the affected industries. A number of these extensions were due to expire on December 31, 2003.
Where the Vice President has issued a directive to continue the extension for one or more sections of the OHSR , an OHS Guideline has been issued for the relevant sections.
Conditions and restrictions of directives
The following conditions and restrictions apply to the authority of prevention officers of WorkSafeBC to make orders under those directives in addition to any specific conditions or restrictions named in the guideline:
Issued June 1, 2006; Revised January 20, 2012
The Workers Compensation Act ("Act") states as follows:
82 (3) The Board of Directors may
(c) delegate in writing a power or duty of the board of directors to the president of the Board, or another officer of the Board, and may impose limitations or conditions on the delegate's exercise of a power or performance of a duty.
84.1(5) The president may delegate in writing any of the president's powers and duties to another officer of the Board or another person and may impose limitations or conditions on the delegate's exercise of a power or performance of a duty.
188(4) An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.
Purpose of guideline
The purpose of this guideline is to describe the assignment of duties and authorities under the OHS Regulation ("Regulation") to designated positions within the [Worker and Employer Services Division ("WES Division")], in particular those relating to approvals, acceptances, authorizations, or permissions required in the Regulation.
There are many provisions of Part 3 of the Act and the Regulation that provide for actions to be carried out or decisions to be made by WorkSafeBC or by prevention officers of WorkSafeBC. These include specific types of decisions mandated by the Act, such as deciding on applications for variances from the Regulation, or deciding issues relating to discriminatory action, and also include decisions required in the Regulation where something must be approved, accepted, authorized, or permitted by WorkSafeBC.
The Board of Directors has provided the President/Chief Executive Officer (CEO) the authority to exercise the powers and responsibilities described in Part 3 (other than those reserved to the Board of Directors), and has also provided the President/CEO the authority to assign these powers and responsibilities to other divisions, departments, categories of officers, or individual officers of WorkSafeBC. The President/CEO in turn has delegated a number of these powers and responsibilities to the Senior Vice President, Operations.
The Senior Vice President Operations has in turn issued a Delegation of Authority which sets out who within the WES Division may exercise a number of those authorities. The Delegation of Authority also sets out how decisions to approve, accept, authorize, or permit things on behalf of WorkSafeBC are to be made.
Where this document refers to an "officer," that term means persons appointed as officers whose functions primarily involve conducting inquiries, investigations or inspections, or making decisions or exercising powers under Part 3 of the Act. "Officers" include WES Division vice presidents, directors, assistant directors and managers.
Decisions in Part 3 of the Act:
The following table sets out the delegation of decision making authorities under Part 3 of the Act, in accordance with the President's Assignment of Authority and the Senior Vice President Operations' Assignment of Authority:
|Section of Act||Decision||By whom|
|113(2)–(2.3)||Varying or cancelling orders||The person who made the order, or a person authorized to make that type of decision or order|
|113(5)||Charging of costs||President/CEO or in accordance with existing WorkSafeBC policy|
|114(1)||Interjurisdictional Agreements||Senior Vice President, Operations|
|150–153||Discriminatory Actions||Director, Investigations|
|155||Health and Safety Summaries||Vice President, Prevention Services or delegate|
|156(3)||Disclosure in Public Interest||Senior Vice President, Operations or Senior Vice President, Corporate Affairs|
|159, 163, 195||Establishing fees||President/CEO|
|159, 163, 195||Certification, other than establishing fees||Director responsible for Certification Services, or delegate|
|164- 170||Variances||Director, Regulatory Practices, or delegate|
|180||Issuing Officer Credentials||President/CEO|
|188(4)||Restrictions on an officer's authority to issue orders||Senior Vice President, Operations|
|191(4)||Confirmation of Stop Work Order||Senior Vice President, Operations, or Vice President, Prevention Services|
|160, 196, 73||Administrative Penalties and Claims Costs Levies||Any officer|
|198||Approval of Application for Court Injunctions||President/CEO|
|214(2)||Approval of laying of information in respect of an offence||President/CEO|
|223||Collection of Amounts owed to WorkSafeBC||Senior Vice President, Operations and Chief Financial Officer, or General Counsel|
The Act provides direct authority to conduct inspections, investigations and enquiries, and to undertake a number of enforcement actions to "officers." Which officers may exercise that authority in specific contexts is subject to management direction in accordance with s. 188(4) of the Act.
Decisions in the Regulation:
In addition to the decisions under the Act above, there are numerous provisions in the Regulation which require "WorkSafeBC" approve, accept, authorize, or permit something.
The ability to make those decisions rests with WorkSafeBC officers. However, the ability of an officer to make a decision approving, accepting, authorizing, or permitting something is restricted by the Delegation of Authority by the Senior Vice President, Operations, issued under the authority of s. 188(4) of the Act. This document sets out which officer may make which types of decisions.
There are five basic categories of "officers" who may make decisions with respect to approvals, acceptances, authorizations, or permissions under the Regulation. These are:
These are further described below.
1. Authority under the Regulation that may be exercised only by the Director of Regulatory Practices or their designated alternate
The Director of Regulatory Practices has designated the position of Senior Prevention Adviser, Regulatory Practices, to exercise authority in the areas listed below. The decision will be issued in a decision letter. Workplace parties must request and obtain a decision letter for the following decisions before proceeding:
|General||Grant approval, acceptance, authorization, or permission except as otherwise specified in this guideline|
|4.4(2)||Determine alternative publications, codes, standards, practices, procedures, or rules acceptable to WorkSafeBC except as otherwise specified in this guideline|
|7.18(2)||Apply Division 3 (or parts thereof) to medical or dental radiation received by a patient, or to natural background radiation|
|7.22||Exempt an employer from the requirements of monitoring exposure to ionizing radiation (providing and ensuring workers' proper use of personal dosimeters)|
|9.1||Determine excluded confined spaces (in conjunction with WorkSafeBC exclusions committee)|
|14.14(h)||Specify other hoisting equipment requiring records of inspection and maintenance|
|16.13(6)||Exempt mobile equipment from braking requirements and specify any necessary conditions|
As noted under "General," unless this guideline sets out otherwise, all decisions relating to approvals, acceptances, authorizations, or permissions must be decided in advance by the Director of Regulatory Practices, or designated alternate.
2. Authority under the Regulation that may be exercised by the Director of Regulatory Practices, who has described compliance in a guideline
In some situations, the Director of Regulatory Practices will have determined that issuing specific decisions relating to approvals, acceptances, authorizations, or permissions is not required by that department. In such situations, the Director of Regulatory Practices may issue a guideline setting out what is acceptable, and what workplace parties must do in order to be compliant. A prevention officer may then evaluate compliance with the elements set out in the guideline during a routine workplace inspection.
For example, a guideline may specify, "what elements safe work procedures must have in order to be "acceptable to WorkSafeBC". That is, WorkSafeBC accepts the alternative safe work procedures if they meet the criteria described in the guideline, and an employer that implements safe work procedures in accordance with the terms of the guideline may proceed without getting prior permission from WorkSafeBC. However, if criteria other than specified or referenced in a guideline are to be used, a request and submission to the Director of Regulatory Practices will be necessary.
This scenario only relates to where the Regulation requires that something be acceptable, approved, or determined (or other similar language) by WorkSafeBC, and does not relate to situations where guidelines are simply issued as guidance documents to assist in evaluating compliance.
The Director of Regulatory Practices has issued guidelines describing acceptable compliance for the following sections:
|5.53(4)||Accept occupational hygiene methods for workplace exposure monitoring and assessment (refer to G5.53-4)|
|6.8(2)||Accept procedures for control, handling, or use of asbestos (refer to G6.8)|
|6.27||Accept means of asbestos cleanup (refer to G6.27)|
|6.67||Accept manner of implementation of an effective health protection program in the handling of lead (refer to G6.67)|
|6.68(b)||Accept manner of maintenance of health monitoring records in the handling of lead (refer to G6.68)|
|6.79||Accept manner of maintenance of health monitoring records in the handling of pesticides (refer to G6.79)|
|6.113||Accept a dust suppression system for a rock drill (refer to G6.113)|
|7.22||Accept a personal dosimeter for monitoring exposure to ionizing radiation (refer to G7.22)|
|7.29(1)(a)||Accept measures and methods for heat stress assessment (refer to G7.29-2, G7.29-3, and G7.29.4)|
|7.30(2)(a)||Accept heat stress administrative controls (refer to G7.30-2)|
|7.34(a)||Accept measures and methods for cold stress assessment (refer to G7.34-1)|
|10.4(6)||Approve effective means of lockout (refer to G10.4(6))|
|11.2(5)||Where a fall arrest system is not practicable, accept work procedures (refer to G11.2(5)-1)|
|11.7(c)||Accept manner of design, installation, and use of temporary horizontal lifeline system (refer to G11.7)|
|12.78||Accept manner of testing and inspection of automotive lifts (refer to G12.78)|
|13.29(2.1)||Accept work procedures when lower limit travel devices are not practicable (refer to G13.29)|
|14.48(2)||Accept standards of design, installation, operation, and maintenance of audio and video communication systems used in a hoisting operation (refer to G14.48(2)|
|16.18(1)||Accept standard for operating controls for mobile equipment (refer to G16.18)|
|17.10(1)(a)||Accept design and construction of vehicles (refer to G17.10)|
|19.16(2)(a)||Accept written safe work procedures if it is not practicable to completely isolate high voltage electrical equipment (refer to G19.16-1)|
|19.27(1)(b)||Determine whether re-routing, de-energizing, or guarding is practicable when working close to energized high voltage equipment and conductors (refer to G19.27)|
|19.34(5)||Accept insulated tools when tree pruning or falling near energized conductors (refer to G19.34(5))|
|20.13(3.1)||Accept control measures re loads on thrust-out crane loading platforms (refer to G20.13(3.1))|
|26.16(4)(b)||Accept written safe work procedures re use of logging equipment on steep slopes (refer to G26.16)|
|26.41(1)(b)||Accept manner of positioning guylines for a mobile yarder (refer to G26.41)|
|26.65(4)(b)||Accept manner of installation of logging truck barrier (refer to G26.65(4)(b))|
3. Authority under Regulation that may be exercised by regional prevention managers and prevention officers
Regional prevention managers and prevention officers may exercise authority for determinations under the following sections. The prevention officer will consult with other subject matter experts as necessary and will consult any guidelines and other WorkSafeBC publications necessary for assistance with the decision-making process. The prevention officer will record the decision in the inspection text of an inspection report.
|9.22(1)||Accept alternative measures under section 9.22(1) for municipal sewage systems (refer to G9.22-2)|
|9.29(2)||Prescribe any additional precautions regarding inerting a confined space (refer to G9.29)|
This authority is in addition to the authority connected to undertaking inspections and investigations and undertaking enforcement actions under sections 179, 187, 190, and 191, and related sections of the Act.
In the event that the regional prevention manager or prevention officer is unable to exercise the authority due to extraordinary circumstances (because the issue has province-wide implications or the matter is unusually complex), the Director of Regulatory Practices or designate will exercise the authority.
4. Authority under the Regulation that may be exercised only by the Director or Manager of Prevention and Occupational Disease Initiatives, or their respective designated alternates
|7.3(2)(a)||Determine acceptable alternative standards for noise exposure measurement|
|7.7(1)(c)||Determine acceptable alternative types or standards of hearing protection|
|7.8(2)||Determine who is authorized to conduct hearing tests|
5. Authority under the Regulation that may be exercised only by the Director of Prevention Emerging Issues or the Manager of Certification Services, or their respective designated alternates
|General||Determine the courses or programs of instruction, education, or training (or training standards) that are acceptable to, or approved by, WorkSafeBC where exercise of such authority is referenced in the Regulation|
|3.16(1.1)||Determine ambulance service acceptable to WorkSafeBC under Schedule 3-A|
|14.34.1(a)||Determine who is a person acceptable to WorkSafeBC to issue crane operator's certificates|
|21.25(b)(v)||Grant prior permission regarding attendance at explosive and detonator containers (refer to G21.25)|
|21.63||Accept an instrument for testing electrical circuits|
|21.69(2),(3)||Determine appropriate circumstances and acceptable alternative procedures (alternative warning procedures in blasting)|
|21.85(1)||Accept work procedures for placing explosive charges|
|21.85(4)||Approve changes to blasting procedures|
|22.73(1)||Approve the underground storage of explosives|
|22.75(b)||Provide approval for the use of explosives (if not Fume Class 1 rating) in underground workings|
|24.26(3)(b)||Provide written authorization to use mixed gases other than nitrox in diving operations|
The Manager of Certification Services may communicate acceptable training by including his/her decision in a guideline. For example, guideline G18.4(1) describes the manner of training acceptable to WorkSafeBC for traffic control persons; guideline G26.21/ 26.22 describes the acceptable training standard for fallers; and guideline G24.26 describes training courses to achieve nitrox diving training to an acceptable standard.
Issued December 1, 2014; Editorial Revision consequential to August 4, 2015 Regulatory Amendment
Section 196(1) of the Workers Compensation Act ("Act") states:
(1) The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that
(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,
(b) the employer has not complied with this Part, the regulations or an applicable order, or
(c) the employer's workplace or working conditions are not safe.
Prevention Policy D12-196-2 states:
For ease of reference, in this policy:
1. "high risk" refers to high risk of serious injury, serious illness or death; and
2. "Regulation" refers to the Occupational Health and Safety Regulation.
This policy sets out how high risk is determined for the policies regarding occupational health and safety related penalties and warning letters. Violations in the six circumstances on the list of Designated High Risk Violations (A) are high risk. Determining whether other violations are high risk will depend on the High Risk Criteria (B).
A. Designated High Risk Violations
Violations of the Act or Regulation relating to the following circumstances are high risk:
- Entry into an excavation over 1.2 m (4 feet) deep contrary to the requirements of the Regulation.
- Work at over 3m (10 feet) without an effective fall protection system.
- Entry into a confined space without pre-entry testing and inspection to verify that the required precautions have been effective at controlling the identified hazards.
- Causing work disturbing material containing asbestos, or potentially containing asbestos, to be performed without necessary precautions to protect workers.
- Hand falling or bucking without necessary precautions to protect workers from the tree that is being felled or bucked, or other affected trees.
Explanatory note: OHS Guideline G-D12-196-2 includes examples of circumstances where this would apply.
- Work in the vicinity of potentially combustible dust without the necessary precautions to protect workers.
B. High Risk Criteria
When violations have occurred in circumstances that are not listed in A above, WorkSafeBC will determine whether the circumstances are high risk in each case on the basis of the available evidence concerning:
- the likelihood of an incident or exposure occurring; and
- the likely seriousness of any injury or illness that could result if that incident or exposure occurs.
Explanatory note: OHS Guideline G-D12-196-2 provides a list of violations that are likely to be high risk when applying the high risk criteria. Even though a violation is on that list, it must still be analyzed using the High Risk Criteria (B) in this policy, since not every instance will be high risk.
Purpose of guideline
The purpose of this guideline is to provide information on the application of the Prevention Policy D12-196-2 ("Policy") and specific examples to assist in clarifying WorkSafeBC's approach to determining whether a violation is high risk.
High risk violations are those violations of the Act or OHS Regulation ("Regulation") which present a high risk of serious injury, serious illness, or death. The Policy provides for two categories of high risk violations. The first category contains six "designated high risk violations". These high risk violations are those that regularly result in fatalities, serious injuries, or serious illness and give a worker little or no opportunity to avoid or minimize severe injury, death, or occupational disease. The second category comprises other violations that are not on the list of designated high risk violations but may also present a high risk of serious injury, serious illness, or death based on criteria set out in the Policy.
Applying the high risk policy
To determine whether a violation is considered high risk, first determine whether it is on the list of designated high risk violations (A) in the Policy. If the violation is not a designated high risk violation, then apply the high risk criteria in (B) to determine whether the violation would be considered high risk.
Designated high risk violations (A): Hand falling or bucking
The six designated high risk violations are listed in the Policy excerpt above. Item 5 in that list is hand falling or bucking practices without necessary precautions to protect workers from the tree that is being felled or bucked, or other affected trees. The following are examples of hand falling and bucking violations which would be considered to be high risk violations (the applicable section of the Regulation is provided in brackets):
(a) Failing to prepare a safe escape route before falling or bucking begins [section 26.24(2)]
(b) Failing to move to a predetermined position, at least 3 m (10 feet) away from the base of the tree where possible, and take cover, when the tree starts to fall [section 26.24(7)]
(c) Failing to use the following proper falling procedures [section 26.24(5)]
(i) Sufficient undercut
(ii) Undercut must be complete and cleaned out
(iii) Sufficient holding wood
(iv) Backcut must be higher than undercut to provide step on the stump
(v) Wedging tools must be immediately available and unless the tree has a pronounced favourable lean, wedges must be set
(e) Using a tree to cause another partially cut tree to fall in succession, except to overcome a specific falling difficulty and done in accordance with the Regulation [section 26.24(6)]
(f) Leaving partially cut trees, unless done in accordance with the Regulation [section 26.25]
(g) Brushing of standing trees where brushing can be avoided [section 26.24(5.1)]
Section 26.23(1) of the Regulation states, in part:
"brushing" means the striking of a standing tree by a tree being felled if the strike is a direct blow or a glancing blow of sufficient force to cause one or more branches to break at or near the stem of the standing tree
(h) Working within a 2 tree-length radius of a tree being felled [section 26.24(1)]
The above list is not exhaustive and there may be additional hand falling and bucking violations, not listed, that are also high risk violations.
The BC Faller Training Standard provides additional information on best practices for complying with several of the requirements listed above.
Applying the high risk criteria (B)
Where a violation is not on the list of designated high risk violations (A), the Policy sets out two criteria for determining whether a violation is high risk, as follows:
When considering the likelihood of an incident or exposure occurring, some of the factors that may be considered are
When considering the likely seriousness of any injury or illness, some of the factors that may be considered are
Examples of violations that would likely be determined high risk
The Policy refers to the following list which contains violations that will likely be considered to be high risk when applying the two high risk criteria in (B) set out above. Even though an item is on this list, it must be analyzed using the two high risk criteria in the Policy, as not every instance of the following violations will be high risk, depending on the circumstances. The list is provided to assist workers, employers, and WorkSafeBC prevention officers in identifying potential high risk violations but is not an exhaustive list.
(a) Exposure to electrocution hazards (including violations related to the limits of approach)
(b) Failure to adequately identify, assess, and control the risk of violence in the workplace where the failure presents a high likelihood of serious injury or death
(c) Unsafe use, handling, or storage of flammable or combustible, oxidizing substances
(d) Unsafe explosives handling and blasting practices
(e) Ineffective de-energization, lockout, or safeguarding
(f) Exposure, without effective protection, to:
(i) substances designated as ACGIH A1 or A2 carcinogen, or IARC 1 or 2A carcinogen
(ii) biohazards and infectious diseases (hazardous substances Risk Group 3 and 4 (section 5.1.1 of the Regulation))
(iii) ACGIH reproductive toxins and ACGIH sensitizers
(iv) ionizing radiation (e.g., x-rays) and Class 4 lasers
(v) the following items classified under the Workplace Hazardous Materials Information System (WHMIS) as:
(1) Acute Toxicity (Categories 1, 2 and 3 -- Inhalation)
(2) Specific Target Organ Toxicity -- Single Exposure (Category 1)
(3) Specific Target Organ Toxicity -- Repeated Exposure (Category 1)
(4) Reproductive Toxicity (Category 1)
(5) Carcinogenicity (Category 1)
(6) Germ cell mutagenicity (Category 1)
(7) Respiratory sensitization (Category 1)
(8) Corrosive to Metal
(9) Skin Corrosion/Irritation (Category 1)
(10) Serious Eye Damage/Irritation (Category 1)
For any of items i to v above, where IDLH (Immediately Dangerous to Life or Health) concentrations have been established, "exposure" refers to exposure at or above the IDLH concentration. Where ALARA (As Low as Reasonably Achievable) principles apply, "exposure" refers to exposure at or above the exposure limit provided for by the Regulation.
(g) Lack of operator protective structures on mobile equipment (e.g., ROPS and FOPS)
(h) Exposure to the risk of being struck by or crushed by material, objects, or mobile equipment
(i) Unsafe transportation of workers