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Guidelines Workers Compensation Act Part 3 Division 1

G-D1-107 About OHS Guidelines

Preliminary Issue September 30, 2009

Regulatory excerpt

WorkSafeBC's mandate over occupational health and safety in the province is set out under section 111 in the Workers Compensation Act ("Act"). The mandate includes ensuring that reasonable standards are maintained for the protection of the health and safety of workers, and the occupational environment in which they work. The functions, duties, and powers that WorkSafeBC may exercise in fulfilling this mandate include, in part

In addition to the requirements for health and safety and the occupational environment that are set out in the Act, the Occupational Health and Safety Regulation ("Regulation") also sets out legal requirements. To assist with the administration of the Act and the Regulation, WorkSafeBC publishes policies, guidelines, and other materials.

Hierarchy of authority
The hierarchy of authority between the Act, Regulation, policies, and guidelines is as follows.

The Act provides the legal authority and framework for all WorkSafeBC prevention activity. The Regulation is enacted under the authority of the Act. The Act and the Regulation both set out legally binding requirements on employers, workers, and other workplace parties.

Policies and guidelines are intended to provide direction on compliance with the Act and the Regulation. Prevention policies are issued by the Board of Directors and are binding on WorkSafeBC decision makers. They cannot conflict with requirements in the Act or the Regulation.

Guidelines are issued to further WorkSafeBC's prevention mandate by providing information to stakeholders. They cannot conflict with the requirements in the Act or the Regulation. In the event of a conflict, a prevention policy will take precedence over a guideline.

About Prevention Policies and the Prevention Manual
Prevention policies are issued on the authority of the Board of Directors. The policies related to occupational health and safety are published in the "Prevention Manual."

About OHS Guidelines
OHS guidelines are interpretive documents relating to specific sections of the Act or the Regulation which are intended to assist in the application and interpretation of these many requirements. Guidelines are issued on the authority of the Vice-President, Worker and Employer Services Division. In general terms, they are published to provide workplace parties with information about how compliance can be achieved under a particular section, and the approach to compliance that a WorkSafeBC prevention officer can be expected to take on an inspection at a workplace.

The guidelines communicate information to assist workplace parties in a variety of ways. A guideline may do one or more of the following:

Explain terms or phrases used in the Act or the Regulation
Explain the intent of a legal requirement, or provide background or educational information to enhance understanding of a legal requirement
Provide one or more suggested options for compliance
Prescribe procedures, measures, standards, or training courses acceptable to WorkSafeBC
Communicate the existence of a vice-president directive suspending the application of a regulatory requirement

How "Enforceable" Are Guidelines?
A frequent question is whether workplace parties are required to apply the information provided in a guideline, and what are the consequences if they choose not to.

The simple answer is that whether a party is bound by a guideline will depend on the reason for, and intent of the particular guideline.

1. Information about complying

Most OHS guidelines simply provide information about complying with legal requirements that are in the Act or the Regulation. For these guidelines, the information and examples discussed in the guideline are not, strictly speaking, mandatory in nature - other means of complying may be acceptable, provided that the objectives of the requirement in the Act or the Regulation are met.

One common use of a guideline to provide information about compliance is where a section sets out very broad based requirements (referred to as performance based requirements). Many employers will want to know in these instances, "What do I need to do to meet this requirement?"

In the case where there may be more than one way to comply with a requirement, a workplace party can choose to follow a method of compliance that is not contemplated by the applicable guideline. It should be noted that prevention officers will give strong weight to the information provided in a guideline in determining whether the requirement in the Act or the Regulation has been met. To accept an alternative approach to compliance, the officer will need to be satisfied that the chosen method of compliance meets the legal requirement at issue.

For example, section 4.21 of the Regulation requires that an employer develop and implement procedures for checking the well being of workers who work alone. The guideline for this section (G4.21) provides information about methods for accomplishing this, including the various systems and technologies that may be used. The guideline serves to assist the employer only, and is not meant to be strictly followed in order to achieve compliance. The employer can review this information and use it to determine how they can best meet the requirements of section 4.21 given their particular circumstances.

2. Prescribing WorkSafeBC determinations

Many guidelines relate to sections of the Regulation that give WorkSafeBC the ability to set out mandatory standards. In these cases, the guideline simply communicates WorkSafeBC's standard that must be followed. Such sections tend to have language like "acceptable to the board" or "approved by the board."

For example, section 21.5 of the Regulation provides that only the holder of a valid blaster's certificate issue "by the board" or "acceptable to the board" may conduct or supervise a blasting operation. Guideline G21.5 sets out the agencies that are accepted by WorkSafeBC to issue valid certificates. Only certificates issued in accordance with the guideline will be recognized as valid by prevention officers.

In any event, whether providing information about compliance, or setting out a standard to be followed, the actual wording of the Act or the Regulation and the information contained in a guideline should be thoroughly reviewed by a workplace party when choosing a course of action.

Developing and updating OHS Guidelines
The Regulatory Practices Department at WorkSafeBC coordinates the development and updating of guidelines. The guideline process uses the expertise of subject matter experts within WorkSafeBC, as well as input from industry and labour representatives, and affected stakeholders, to thoroughly canvas the issues at hand, and reach practical, workable resolutions which are communicated in guidelines.

New guidelines and updates to guidelines are initially released for use marked as a "Preliminary Issue" with the effective date indicated, and will remain so marked for a minimum of 60 days. These guidelines are posted on the WorkSafeBC website for public comment during this time period. There are two reasons for the "Preliminary Issue" step. First, it allows WorkSafeBC to issue guidance material in a timely manner to address issues that arise. Second, a consultative body called the Policy and Practice Consultative Committee (PPCC) made up of representatives of industry and labour receives the guideline and is given the opportunity to review and comment before it is finalized.

At the conclusion of the 60-day consultation period, any necessary changes to a guideline are made, and the "Preliminary Issue" marking is removed.

Anyone who wishes to comment on a guideline or has suggestions for a new guideline can contact the Regulatory Practices Department at WorkSafeBC's Richmond office at 604-231-8644.

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

Issued: September 28, 2005

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

Policy Item D1-108-1 provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108 - 2 BC Safety Authority

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108-3 Labour program - Human Resources and Services Development Canada (HRSDC) jurisdiction

Issued February 22, 2006; Editorial Revision September 30, 2009

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

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

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

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

Federal competence
First, if it can be established that an organization operates predominantly in an area of federal competence under the Constitution, and if it can be said that regulating the labour relations of that organization is necessary for regulating that area of federal competence, the OHS of that organization will fall under federal jurisdiction and WorkSafeBC will have no jurisdiction. Examples of areas of federal competence include:
- Businesses connected with navigation and shipping
- Railways extending beyond the limits of B.C.
- Line of ships extending beyond the limits of B.C.
- Ferries between B.C. and another province or between B.C. and another country
- Airports, aircraft or airlines
- The administration of Indian reserves
- Banks within the meaning of section 2 of the federal Bank Act
- Telecommunications (radio and television broadcasting, cable television, telephone, and internet)
In evaluating whether an organization operates in an area of federal competence, the enquiry must be made into the normal activities of the organization in the context of the nature of the service, business, or work performed by the organization. It is the core nature of the business that must be evaluated; individual or intermittent projects or activities should not bear on the determination of whether an organization is under federal jurisdiction.
Integral to federal organization
Second, if an organization's operations cannot be considered federally regulated on their own (such as with a contractor doing work for a federally regulated business), the organization may be considered to be under federal jurisdiction if the organization is "integral" to a federally regulated organization. This may exist where there is a high degree of operational integration with a federally regulated organization, (for example, where there is common management, corporate control and direction, or a natural link or operational continuity), or where the federally regulated organization is dependent on the provincial enterprise to carry out its federally regulated operations.

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

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

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

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

Notify the other agency of the observation
Cooperate with that agency in dealing with the situation to the extent this is consistent with WorkSafeBC's mandate and the officers' duties under the Act

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

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

G-D1-108-4 Fire safety and prevention

Issued February 22, 2006; Revised April 4, 2006

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

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

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

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

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

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

G-D1-108-5 Jurisdiction over railways

Issued April 1, 2006; Revised October 19, 2007

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

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

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

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

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

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

Recreational railways, such as amusement rides

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

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

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

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

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

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

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

Issued June 6, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108-7 Jurisdiction over mines

Issued June 18, 2008

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

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

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

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

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

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

(d) closed and abandoned mines

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108-8 Jurisdiction over marine operations

Issued September 24, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Disclaimer: The Worker and Employer Services Division issues Guidelines to help with the application and interpretation of sections of the Occupational Health and Safety Regulation and with divisions of the Workers Compensation Act that relate to health and safety. Guidelines are not intended to provide exclusive interpretations but to assist with compliance. WorkSafeBC ("Workers' Compensation Board of B.C.") does not warrant the accuracy or the completeness of the online version of the Guidelines and neither WorkSafeBC nor its board of directors, employees or agents shall be liable to any persons for any loss or damage of any nature, whether arising out of negligence or otherwise, which may be occasioned as a result of the use of the online version of the Guidelines.