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Guidelines Workers Compensation Act Part 3 Division 9

G-D9-164 Variance process

Issued April 1, 2006; Editorial Revision November 24, 2006

Regulatory excerpt
Sections 164 - 171 of Division 9 of Part 3 of the Workers Compensation Act ("Act") outline the statutory requirements concerning variances to requirements of the OHS Regulation. The Act can be accessed on the WorkSafeBC web site at www.worksafebc.com.

The following four sections have central relevance to the variance process:

Section 164, which provides WorkSafeBC with the authority to consider applications, the scope of possible variance decisions, and the criteria that must be met in issuing a decision
Section 166, which deals with information that must be provided by the applicant
Section 167, which outlines the obligation of the applicant to post notice of a variance application and to provide copies to parties such as the joint occupational health and safety committee or worker representative, and to the union as applicable
Section 168, which establishes the obligation of WorkSafeBC to consult with persons who may be affected by a requested variance

Excerpts of these provisions are shown below.

Section 164 - Board may authorize variances

(1) On application, the Board may, by order, authorize a variance from a provision of the regulations.

(2) A variance order may be made only if the Board is satisfied that the variance

(a) affords protection for workers equal to or greater than the protection established by the provision being varied, or

(b) has substantially the same purpose and effect as the provision being varied.

(3) A variance order may be made applicable to

(a) a specified workplace, or

(b) a specified work process at all or specified workplaces of a specified employer.

(4) As a limit on the authority under subsection (1), a provision in a regulation of the Lieutenant Governor in Council under this Part may only be varied if this is permitted by regulation of the Lieutenant Governor in Council.

Section 166 - Application for variance

(1) Subject to the regulations and subsection (2), an application for a variance must be made in writing to the Board and must include

(a) a description of the requested variance,

(b) a statement of why the variance is requested, and

(c) information with respect to the benefits and drawbacks in relation to the matters addressed by the regulation that might reasonably be anticipated if the variation is allowed.

(2) In the case of an application by a single worker for a variance order that would apply only to that worker, an application may be made as permitted by the Board.

(3) The applicant must also provide the Board with the technical and any other information required by the Board to deal with the application.

Section 167 - Notice of application

(1) If the variance would apply to an existing workplace, the applicant must

(a) post a copy of the application at the workplace and keep it posted there until the decision on the requested variance is received by the applicant,

(b) provide a copy to the joint committee or worker representative, as applicable, and

(c) if workers at the workplace are represented by a union, send a copy to the union.

(2) If the variance would apply to a workplace that is not yet in existence, immediately after submitting the application for variance, the applicant must publish a notice of the application, including

(a) a description of the requested variance, and

(b) a statement of why the variance is requested,

where it would reasonably be expected to come to the attention of persons who may be affected by the decision on the requested variance.

Section 168 - Consultation on application

(1) After receiving an application for variance, the Board may give notice of the application and conduct consultations respecting that application as the Board considers advisable.

(2) Before making a decision on an application, the Board must provide an opportunity for persons who may be affected by the requested variance to submit to the Board information respecting their position on the requested variance.

(3) A union representing workers who may be affected by the requested variance is considered a person who may be affected for the purposes of subsection (2).

Purpose of guideline
This guideline provides information on how to submit an application for a variance and the information needed in the submission. It describes the process followed by WorkSafeBC in reviewing an application and issuing a decision.

The guideline also addresses matters such as the obligation of the applicant to post information and advise persons who may be affected by the variance, and the obligation of WorkSafeBC to consult with those affected persons.

Submitting an application
A variance application must, as required by section 166 of the Act, be in writing and signed. It should be directed to: Regulatory Practices Department, PO Box 5350 Stn Terminal, Vancouver BC V6B 5L5.

Information needed in a submission
In assembling the information for a submission the applicant should be aware that any variance issued by WorkSafeBC must meet at least one of the criteria for equivalent protection for workers, as established by section 164(2) of the Act.

Section 166 of the Act outlines specific types of information to be included in the submission: a description of the variance, why it is requested, and information on benefits and drawbacks. Information on the reason(s) for the request is expected to include comment on the practicability of complying with the unvaried requirement. "Practicability" is defined in Part 1 of the OHS Regulation as "that which is reasonably capable of being done."

Also, section 166(3) of the Act requires that the applicant provide technical and any "other information" needed by WorkSafeBC to deal with the application.

"Other information," as established by Policy D9-166-1, will generally include

The location of the workplace
The type and nature of the work process
A description of the proposed procedure or practice that would provide an equivalent level of health and safety to that provided by the regulation(s)
How workers will be trained and supervised
Confirmation that, as per section 167 of the Act
- The variance application has been posted at the workplace, and a copy has been provided to the joint occupational health and safety (OHS) committee or the worker health and safety representative and to the union, if the workers at the workplace are represented by a union, or
- If the workplace is not yet in existence, notice has been published where it would reasonably be expected to come to the attention of persons who may be affected

Review of an application
The technical review of an application is conducted at WorkSafeBC by a variance coordinator who specializes in the matters involved. The coordinator may request additional technical information from the applicant as per section 166(3) of the Act. The coordinator will also draw together any further required information, for example, from the prevention officer who is familiar with the applicant's operation.

Consultation on an application
Section 168 of the Act establishes the obligation of WorkSafeBC to consult with persons who may be affected by a variance decision. The application is reviewed to determine whether there is information that identifies them. In a workplace these parties will typically be the joint OHS committee or worker health and safety representative, as applicable, and as per section 168(2), any union representing affected workers.

In some circumstances there may be other affected persons. For example, on a multi-employer worksite, an affected person may be a subcontractor whose workers work near the location or process to which the variance would apply.

If the identity of affected parties is not clear from the application, then WorkSafeBC will contact the applicant for that information. In terms of timeliness of the process, it is in the applicant's interest to ensure that affected persons are identified in the application, and further, to include information from those parties that provides their position on the requested variance.

Issuance of a decision
The criteria for accepting or rejecting an application for a variance are established by section 164(2) of the Act. WorkSafeBC must be satisfied that a variance provides protection for workers equal to or greater than the protection established by the provision being varied, or that it has substantially the same purpose and effect as that provision.

The decision will be issued to the applicant in writing. Copies will also be sent to any affected parties who submitted information in the consultation process.

Requirement to post the decision
The applicant for the variance must post a copy of the decision at the workplace. If the variance is accepted the applicant must keep the decision posted throughout the time the variance is in effect. If the application is denied the decision must be posted for 7 days or the period required by the order, whichever is longer.

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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.