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Guidelines Workers Compensation Act

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Guidelines Workers Compensation Act - Contents

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

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

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

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

(d) To provide assistance to persons concerned with occupational health and safety and occupational environment

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:

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

Policy Item D1-108-1 provides:

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

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

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

notify the other agency of the observation; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108 - 2 BC Safety Authority

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

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

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

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

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

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

Federal/Provincial jurisdiction
The Constitution Act, 1867 ("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:

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

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

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

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

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

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

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

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

G-D1-108-5 Jurisdiction over railways

Issued April 1, 2006; Revised October 19, 2007

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

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

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

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

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

(a) mines to which the Mines Act applies,

(b) [Repealed 2004-8-33.], or

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

(3) The Lieutenant Governor in Council may, by regulation, provide that all aspects of this Part and the regulations apply to camps referred to in subsection (2)(c), in which case this Part and the regulations prevail over the regulations under the Health Act to the extent of any conflict.

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

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

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

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

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

Recreational railways, such as amusement rides

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

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

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

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

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

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

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

Issued June 6, 2006

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

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government

(b) every employer and worker whose OHS are ordinarily within the jurisdiction of the Provincial government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108-7 Jurisdiction over mines

Issued June 18, 2008

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

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

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

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

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

(a) mines to which the Mines Act applies,

(b) [Repealed 2004-8-33.]

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

(3) The Lieutenant Governor in Council may, by regulation, provide that all aspects of this Part and the regulations apply to camps referred to in subsection (2) (c), in which case this Part and the regulations prevail over the regulations under the Health Act to the extent of any conflict.

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

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

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

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

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

(d) closed and abandoned mines

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G-D1-108-8 Jurisdiction over marine operations

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:

(1) Subject to subsection (2), this Part applies to

(a) the Provincial government and every agency of the Provincial government,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guidelines Workers Compensation Act Part 3 Division 3

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

Issued February 4, 2005

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

115(1) Every employer must

(a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer's work is being carried out, and

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

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

Discrimination in employment

13(1) A person must not

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Without limiting subsection (1), an employer must...(f) make a copy of this Act and the regulations readily available for review by the employer's workers and, at each workplace where workers of the employer are regularly employed, post and keep posted a notice advising where the copy is available for review,...

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

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

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

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

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

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

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

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

G-D3-116 Orders to workers

Preliminary Issue September 30, 2009

Regulatory excerpt
Section 116 (General duties of workers) of the Workers Compensation Act ("Act") states:

116(1) Every worker must

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

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

(2) Without limiting subsection (1), a worker must

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

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

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

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

(e) report to the supervisor or employer

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

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

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

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

Section 117 (General duties of supervisors) of the Act states:

117(1) Every supervisor must

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

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

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

(2) Without limiting subsection (1), a supervisor must

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

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

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

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

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

Purpose of guideline
The purpose of this guideline is to explain the factors that will be considered in determining whether or not to issue orders to workers (OtWs).

Background
Under the broad enforcement power in section 187 of the Act, WorkSafeBC prevention officers may issue orders to various workplace parties pursuant to provisions of the Act and the OHS Regulation ("Regulation"). The general duty sections of Part 3, Division 3 of the Act assign responsibilities for health and safety in the workplace to employers, workers, supervisors, prime contractors, and suppliers, as well as directors and officers of corporations.

Prevention policy provides that all parties with duties under the Act may be able to affect the health and safety of persons at or near a workplace. While the employer has the primary responsibility for health and safety at their workplace, any and all of the parties may be cited for violations of their statutory duties as more than one party may be responsible. Each party must fulfill the obligations imposed on him or her and where those obligations have not been fulfilled, prevention officers may issue orders to all the parties.

In issuing orders, the main consideration is not which party is most responsible for a workplace violation. Rather, prevention officers consider issuing orders on those persons who are not in compliance with their responsibilities under the Act and Regulation. Whether orders are issued on an employer or not, the prevention officer will consider if orders on the supervisors and workers are required. OtWs may also be issued against an employer, if they are acting in the capacity of a worker.

Responsibilities
Worker
Workers must work safely, and should encourage their co-workers to do the same. An important component of a worker's responsibility for his or her own safety is to ask for training if he or she is unsure about the hazards of their job or how to safely perform a work task.

Responsibilities of workers set out under section 116 of the Act include

Taking reasonable care to protect his or her health and safety and the health and safety of others
Following safe work procedures
Using appropriate personal protective equipment (ppe)
Not engaging in horseplay or other hazardous conduct
Ensuring that their ability to work is not impaired by alcohol, drugs, or other causes
Reporting to his or her supervisor or employer unsafe conditions and contraventions of the Act or Regulation
Co-operating with prevention officers

Workers may not be disciplined for refusing to perform a task that they have reasonable cause to believe is dangerous. A supervisor or worker has the right to refuse unsafe work and the employer should advise them of that right.

Supervisor
Under section 117 of the Act, supervisors have specific responsibilities that are additional to their duties as workers under section 116. The supervisor's responsibilities include

Providing training and orientation to new and young workers
Instructing workers in safe work procedures
Training workers in their assigned tasks, and checking that their work is being done safely
Ensuring that only authorized and properly trained workers operate tools and machinery, use hazardous chemicals, and enter confined spaces
Ensuring that equipment and materials are properly handled, stored, and maintained
Correcting and investigating unsafe acts and conditions that they observe or that are reported to them

Supervisors have the right and responsibility to refuse to direct workers to perform work the supervisor considers unsafe.

Issuing orders
In determining whether or not an OtW is appropriate against a supervisor or worker, a prevention officer needs to consider three elements and determine the role that each element contributed.

Knowledge
First, did the supervisor or worker have knowledge of the hazard, the risk of injury, or the requirements applicable to the work involved? Evidence of sufficient knowledge may be demonstrated by considering what training and orientation they received on the job. For example, the supervisor or worker may have obtained general knowledge of the hazard through previous education, from training received through a formal trade qualification, experience at the task, or in the industry.

Control
Second, did the supervisor or worker have control over the hazard? Were adequate controls readily available at the worksite and were the controls properly used? Examples of controls include personal protective equipment, local exhaust ventilation, or an exposure control plan. An order should only be issued if the supervisor or worker had some means within their authority to control or reduce the hazard.

Reasonable steps to be taken
Third, did the supervisor or worker take reasonable steps within their authority to control the hazard? Taking reasonable steps may include wearing personal protective equipment or using appropriate safety procedures.

Situations where an OtW may be appropriate include

Worker fails to use ppe in accordance with requirements (section 8.9 of the Regulation)
Supervisor does not ensure appropriate ppe is available, properly worn, and maintained (section 8.8 of the Regulation)
Blaster fails to follow safe blasting procedures (section 21.66 of the Regulation)
Worker fails to comply with lockout procedures (section 10.7 of the Regulation)
Worker engages in improper activity or behaviour at the workplace (section 4.25 of the Regulation)
Crane operator does not follow proper procedures (section 14.38(2) of the Regulation)
Worker remains at workplace while being impaired (section 4.20(1) of the Regulation)
While spraying isocyanate-containing paint, the worker does not wear the airline respirator that was properly selected and provided for the worker's use by the employer. The worker was aware of the lung sensitization hazard associated with exposure to isocyanate.
Worker enters a live sewer well (confined space) without conducting pre-entry atmospheric testing and without ventilating the space. The worker was aware that the well was a confined space that could contain a hazardous atmosphere. Worker was also provided with adequate instruction and training regarding pre-entry requirements and other safe work procedures for confined space entry work.

Examples
1. A WorkSafeBC prevention officer observes three workers on a roof without proper fall arrest equipment at a height of 20 feet from ground. The prevention officer determines through discussion that one of them is the assigned supervisor and the other two are workers that are working on this job after hours from their regular employment. The prevention officer finds that the employer has supplied all three workers with fall arrest equipment, but the equipment has been left in the truck. The supervisor is unable to produce training logs to demonstrate that the workers have been instructed in fall protection, and neither of the workers is able to properly don their harnesses when asked to do so by the prevention officer. The prevention officer determines that the supervisor had knowledge of the hazards of falling from the roof, and sufficient ability to control the hazard but failed to take reasonable steps to do so. The supervisor would be issued an OtW for failing to fulfill his obligations under the Act and the Regulation. The workers in this example were neither properly trained nor instructed by the supervisor to wear the fall arrest equipment. This lack of training meant the workers did not know how to use the equipment, and they did not understand the risks of failing to wear it. In addition to issuing an OtW to the supervisor, the prevention officer could consider if orders would be warranted against the employer for failing to ensure that proper training and orientation were done. 2. In another example, a prevention officer finds a similar situation but the supervisor is able to produce a training log that shows the workers were trained in fall protection, and the workers can demonstrate that they understand the purpose of, and how to use, the fall arrest equipment at the worksite. In this case, the prevention officer would issue an OtW against each of the workers. These workers had knowledge of the hazard, and were supplied with the proper equipment and training to control the hazard. Through their own actions they failed to take reasonable steps to control the hazard. The prevention officer could also consider if an OtW is warranted against the supervisor for failing to fulfill his obligations as a supervisor under the Act and Regulation to ensure the workers wore the equipment.

Examples

1. A WorkSafeBC prevention officer observes three workers on a roof without proper fall arrest equipment at a height of 20 feet from ground. The prevention officer determines through discussion that one of them is the assigned supervisor and the other two are workers that are working on this job after hours from their regular employment.

The prevention officer finds that the employer has supplied all three workers with fall arrest equipment, but the equipment has been left in the truck. The supervisor is unable to produce training logs to demonstrate that the workers have been instructed in fall protection, and neither of the workers is able to properly don their harnesses when asked to do so by the prevention officer. The prevention officer determines that the supervisor had knowledge of the hazards of falling from the roof, and sufficient ability to control the hazard but failed to take reasonable steps to do so.

The supervisor would be issued an OtW for failing to fulfill his obligations under the Act and the Regulation. The workers in this example were neither properly trained nor instructed by the supervisor to wear the fall arrest equipment. This lack of training meant the workers did not know how to use the equipment, and they did not understand the risks of failing to wear it. In addition to issuing an OtW to the supervisor, the prevention officer could consider if orders would be warranted against the employer for failing to ensure that proper training and orientation were done.

2. In another example, a prevention officer finds a similar situation but the supervisor is able to produce a training log that shows the workers were trained in fall protection, and the workers can demonstrate that they understand the purpose of, and how to use, the fall arrest equipment at the worksite.

In this case, the prevention officer would issue an OtW against each of the workers. These workers had knowledge of the hazard, and were supplied with the proper equipment and training to control the hazard. Through their own actions they failed to take reasonable steps to control the hazard. The prevention officer could also consider if an OtW is warranted against the supervisor for failing to fulfill his obligations as a supervisor under the Act and Regulation to ensure the workers wore the equipment.

Collaborative approach
While orders are often regarded by employers and others as punitive in nature, they are not meant to punish. Orders are meant to provide direction to the workplace parties to ensure compliance with general duties and other requirements that address specific hazards at the workplace, thereby ensuring the health and safety of all. This is true of worker orders as well as orders to other parties.

In many cases, the OtW can be used as a learning tool for a supervisor or worker and should not be regarded as a punitive measure. However, the OtW can be used appropriately to serve as the foundation for progressive discipline by an employer or further compliance activity by a prevention officer.

The OtW also supports engaging the supervisor or worker in health and safety at work through

Educating the supervisor or worker about their responsibilities
Ensuring the safety of supervisor or worker (and others) at the workplace
Persuading the supervisor or worker to take responsibility for their own safety
Having the supervisor or worker understand the effect of their actions on the health and safety of others at the workplace

When issuing an OtW, these goals can often best be achieved by including the employer and using a collaborative approach between the employer and worker. The prevention officer can also ask the employer to agree to follow-up with the supervisor or worker to ensure their understanding of, and compliance with, the OtW.

Orders to workers against employers, suppliers, directors, or officers
Orders to workers may be issued against any workplace party who meets the definition of a worker, even where they also meet the definition of an employer, supplier, director, or officer. Where these workplace parties are also workers, they must comply with the duties of a worker.

Appendix

Procedural Directions When Issuing an OtW

Procedures
Where a prevention officer determines that the criteria for issuing an OtW have been met the following procedures apply when issuing the OtW.

First, the prevention officer should consult with the worker and the employer of the worker. This consultation should cover

Why the OtW is being issued
What are the responsibilities of each party to ensure compliance with the OtW
What are the possible consequences of not complying with the OtW

Second, the prevention officer will issue the OtW, and require the order to be posted in the worksite (see below for further information). The prevention officer may include text outlining the consequences of not complying with the order. Consequences include possible prosecution and fine, orders being issued against the employer for failing to ensure the worker complies with the OtW, and orders to stop using equipment or stop work generally where either order is appropriate.

The prevention officer may also include a Notice of Compliance for the worker to complete. The Notice of Compliance will be completed and signed by the worker, in conjunction with the employer, and will outline what steps the worker agrees to take to ensure compliance with the order.

Finally, the prevention officer will determine if a follow-up is needed with the worker and/or employer to ensure that compliance has been achieved, and if applicable, if the steps in the Notice of Compliance have been followed.

Posting of OtWs
The prevention officer should instruct the employer to post the OtW at the workplace in a similar manner that is required to post an Inspection Report (IR). The employer should be instructed to give a copy of the OtW to the joint health and safety committee or worker health and safety representative, as applicable. The authority to instruct the employer to post the OtW is section 187(2)(f) of the Act. Under this section, a prevention officer may also order any person to post the OtW, if the prevention officer deems it necessary.

Disclosure to the employer of the OtW and posting the OtW are meant to assist workplace parties to meet the required standards for occupational health and safety. For example, the information on an OtW can assist an employer to

Determine what procedure or practice improvements, training, or other measures may be required in the workplace to prevent similar violations
Ensure that the violation was made by the employer's worker or supervisor and not that of another party, such as a subcontractor
Identify the possible need for corrective action relating to a particular worker or supervisor, such as further training or discipline
Make other parties at the workplace aware of potential hazards and improper practices

Information in an IR
Where an OtW is issued as the result of a prevention officer's findings on an inspection, the prevention officer should reference the number of the OtW report in the applicable IR. The name or other personal information about the worker related to the OtW should not be included in the IR or in any other records that are available to the public upon request to Prevention Records. A request to WorkSafeBC for disclosure of an OtW will be dealt with by Prevention Records, and in accordance with the Freedom of Information and Protection of Privacy Act.

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

Issued March 28, 2002; Revised June 6, 2007

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

If

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

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

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

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

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

Policy Item D3-123/124-1 provides:

All parties with duties under the Act may be able to affect the health and safety of persons at or near a workplace. Any and all of these parties may be cited for violations of their statutory duties regardless of whether or not another person has fulfilled his or her statutory responsibilities.
Under section 124 of the Act, one person may be relieved of his or her obligations under Part 3 of the Act or the Regulations if:

Another person who is subject to the same obligations complies with those obligations

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

The health and safety of persons at the workplace would not be put at risk by the compliance of only one person

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

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

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

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

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

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

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

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

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

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

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

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

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

Guidelines Workers Compensation Act Part 3 Division 4

G-D4-135-1 Joint committee course approval

Issued February 27, 2001; Revised March 25, 2005

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

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

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

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

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

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

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

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

Guidelines Workers Compensation Act Part 3 Division 6

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

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

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

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

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

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

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

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

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

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

Discriminatory actions include

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

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

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

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

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

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

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

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

Time limits for filing a complaint with WorkSafeBC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following sections explain the processes for these scenarios.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The prevention officer will then forward the worker's completed Worker Complaint of Discriminatory Action Form, Worker Consent Form and Election Form, copies of any CRs, IRs, and any other relevant documentation (including the prevention officer's notes, with any irrelevant entries severed) to the Compliance Section.

A prima facie case of discrimination or failure to pay wages exists - worker does not wish to proceed with a complaint
Where the prevention officer thinks the worker has made a prima facie case but the worker does not wish to proceed with their complaint at this stage, the prevention officer will

Provide the worker with the Worker Complaint of Discriminatory Action Form, Consent Form and Election Form.
Advise the worker that in the event that they change their decision and decide to pursue their complaint, the Worker Complaint of Discriminatory Action Form must be submitted to WorkSafeBC within the appropriate time limits set out in the Act, and that once WorkSafeBC has received this documentation, confidentiality of the complaint cannot be maintained.
Provide the worker with a copy of the Additional Resources List.

No CR will be created. The prevention officer will document in an internal memo to the Compliance Section the nature and particulars of the worker's complaint, the worker's decision not to proceed at this stage, and the discrimination number, employer's name, and firm number. This memo, along with a copy of the prevention officer's severed notes, will be forwarded to the Compliance Section for retention. The memo will not be placed on the firm's file so as to protect the worker's privacy rights. Any documents collected by the prevention officer from the worker should be returned to the worker.

The Compliance Section will follow up with the worker by sending a letter to the worker confirming his or her decision not to proceed.

Prevention officer considers that the worker has not made a prima facie case
If the prevention officer considers that the worker has not made a prima facie case, they will advise the worker why the complaint does not fall under the Act. For example, an allegation about sexual or racial discrimination, in the absence of any occupational health and safety concern, is not a complaint of discriminatory action under the Act. In this case, the prevention officer will advise the worker should not proceed with the complaint through WorkSafeBC. But if they are not satisfied with this advice they may pursue the complaint for a formal adjudication by filing a Worker Complaint of Discriminatory Action Form (Form 57W1) with the Compliance Section of WorkSafeBC.

The prevention officer will provide the worker with the Worker Complaint of Discriminatory Action Form, Consent Form, Election Form, and the Additional Resources List, and advise the worker that the forms must be submitted to WorkSafeBC within the appropriate time limits set out in the Act. The worker should be advised that once WorkSafeBC has received this documentation, confidentiality of the worker's complaint cannot be maintained.

The prevention officer does not need to create a CR. After discussion with the worker, the prevention officer will document in an internal memo to the Compliance Section, the nature and particulars of the worker's complaint, their opinion that there is no prima facie case, and include a reference to the discrimination number, employer's name, and firm number. This memo, along with a copy of the prevention officer's severed notes, will be forwarded to the Compliance Section for retention. It will not be placed on firm file to protect the worker's privacy rights. Any documents collected by the prevention officer from the worker should be returned to the worker.

Adjudication by the Compliance Section and the external mediation process
Once the Compliance Section receives a written complaint, a case officer will review it to determine whether the worker has made out a prima facie complaint. If so, the case officer will advise the parties of the opportunity to participate in an external mediation process. If both parties agree, an external mediator will be appointed and will attempt to mediate a settlement between the parties.

If a mediated settlement is not possible, a case officer will proceed with the adjudication process. This will include initial file disclosure to both parties, receipt of written submissions from both, and cross disclosure between the parties. Typically this pre-adjudicative disclosure process will take three months before the complaint is ready to be adjudicated, assuming no oral hearing is required.

The case officer will either decide that discriminatory action or failure to pay wages took place and issue remedial orders as outlined in section 153(2) of the Act or dismiss the complaint. The case officer will provide a written decision in either case.

Where discrimination orders are made in a decision against an employer, compliance is required within a specified time frame. If these time frames are not met, the case officer may refer the matter of the non-compliance back to the prevention officer to consider imposing an administrative penalty against the employer.

If an employer, worker, or union disagrees with the decision, they may appeal that decision to the Workers' Compensation Appeal Tribunal (WCAT) within 90 days of the decision. An employer or union against whom an order has been made may ask WCAT for a stay of the order until the appeal has been heard on its merits. If no stay is requested, or if a stay is not granted, the orders must be complied with immediately, pending the outcome of the appeal on the merits.

G-D6-153(1) Determining if a discrimination complaint has been settled

Issued September 28, 2007

Regulatory excerpt
Section 153(1) of the Workers Compensation Act ("Act(") states:

(1) If the Board receives a complaint under section 152 (2), it must immediately inquire into the matter and, if the complaint is not settled or withdrawn, must

(a) determine whether the alleged contravention occurred, and

(b) deliver a written statement of the Board's determination to the worker and to the employer or union, as applicable.

Section 152(2) of the Act states:

(2) A complaint under subsection (1) must be made in writing to the Board,

(a) in the case of a complaint referred to in subsection (1) (a), within 1 year of the action considered to be discriminatory, and

(b) in the case of a complaint referred to in subsection (1) (b), within 60 days after the wages became payable.

Purpose of guideline
This guideline sets out the authority and practice that WorkSafeBC applies in determining whether a discrimination complaint has been "settled" as contemplated under section 153 of the Act.

Background
Section 153(1) requires WorkSafeBC to determine whether an alleged contravention under section 152(2) has occurred, unless the complaint "is not settled or withdrawn."

In some cases, the parties to a discrimination complaint may disagree about whether they, in fact, reached a settlement of the complaint that they agreed was final and binding on them. It then becomes necessary to determine if a final and binding settlement was reached before any further considerations can take place regarding the complaint.

Discussion
Section 113 of the Act sets out WorkSafeBC's jurisdiction with respect to Part 3 of the Act, and provides WorkSafeBC with the exclusive authority to "...inquire into, hear and determine all those matters and questions of fact and law arising or required to be determined..." under Part 3. The broad jurisdiction for WorkSafeBC to make determinations under Part 3 includes the authority to determine whether a discrimination complaint has been settled for the purposes of section 153. Further, as provided in section 113, once WorkSafeBC has determined whether a settlement has been reached, that determination is "...final and conclusive and is not open to question or review in any court" (subject to a judicial review).

Where the parties to a discrimination complaint dispute whether they reached a final and binding settlement of the complaint, it becomes the duty of WorkSafeBC to consider the disputed settlement, together with the circumstances leading to it, and make a final determination of the issue. This practice applies regardless of the complaint settlement process in which the parties engaged, and includes any WorkSafeBC-sponsored mediation or settlement process.

Where WorkSafeBC determines a final and binding settlement was reached by the parties, WorkSafeBC will regard the complaint as having been settled as contemplated by section 153(1) and will take no further action on it. Alternatively, where WorkSafeBC determines a final and binding settlement was not reached, WorkSafeBC will proceed with adjudication of the complaint in accordance with the discrimination provisions under the Act.

APPENDIX A

Additional Resources List

Workers may wish to get help from the worker's union, the Workers' Advisers office, a lawyer, or a consultant.

Employers may wish to get help from an employer association, the Employers' Advisers office, a lawyer, or a consultant.

Workers' Advisers Office
Phone: 604 713-0360
Toll free: 1 800 663-4261
E-mail:

Employers' Advisers Office
Phone: 604 713-0303
Toll free: 1 800 925-2233
E-mail:

Lawyer Referral Service
Phone: 604 687-3221
Toll free: 1 800 663-1919

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.

Guidelines Workers Compensation Act Part 3 Division 10

G-D10-172-1 WorkSafeBC notification of serious injuries

Issued February 12, 2008; Editorial Revision February 11, 2009

Regulatory excerpt
Section 172 of the Workers Compensation Act ("Act") states:

172 (1) An employer must immediately notify the Board of the occurrence of any accident that

(a) resulted in serious injury to or the death of a worker,

(b) involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation,

(c) involved the major release of a hazardous substance, or

(d) was an incident required by regulation to be reported.

Purpose of guideline
The purpose of this guideline is to set out what WorkSafeBC considers to be a "serious injury," which an employer would be required to report to WorkSafeBC.

What employers must report
Section 172 provides that employers must immediately report

Any incident that kills or seriously injures a worker
A major leak or release of a dangerous substance
A major structural failure or collapse of a structure, equipment, construction support system, or excavation
Any blasting accident that results in injury, or unusual event involving explosives (required by regulation)
A diving incident that causes death, injury, or decompression sickness requiring treatment (required by regulation)

Such incidents must also be investigated by the employer under s. 173.

"Serious Injury"
Section 172 provides that employers must notify WorkSafeBC of an accident that resulted in the "serious injury" or death of a worker. The term "serious injury" is not defined in the Act.

A serious injury is any injury that can reasonably be expected at the time of the incident to endanger life or cause permanent injury. Serious injuries include both traumatic injuries that are life threatening or that result in a loss of consciousness, and incidents such as chemical exposures, heat stress, and cold stress which are likely to result in a life threatening condition or cause permanent injury or significant physical impairment.

Traumatic injuries that should be considered "serious injuries" include

Major fractures or crush injuries, such as
- A fracture of the skull, spine, or pelvis
- Multiple, open or compound fractures, or fractures to major bones such as the humerus, fibula or tibia, or radius or ulna
- Crushing injuries to the trunk, head or neck, or multiple crush injuries
An amputation, at the time of the accident, of an arm or leg or amputation of a major part of a hand or foot
Penetrating injuries to eye, head, neck, chest, abdomen, or groin
An accident that caused significant respiratory compromise, or punctured lung
Circulatory shock (i.e. internal hemorrhage) or injury to any internal organ
Lacerations that cause severe hemorrhages
All burns that meet the rapid transport criteria of the Occupational First Aid Training Manual, including
- Third degree burns to more than 2% of the body surface
- Third degree burns to the face, head, or neck
- Burns of any degree with complications
An asphyxiation or poisoning resulting in a partial or total loss of physical control ( i.e. loss of consciousness of a worker in a confined space) or a respiratory rate of fewer than 10 breaths per minute or severe dyspnea (difficult or laboured breathing)
Decompression illness, or lung over-pressurization during or after a dive or any incident of near drowning
Traumatic injury which is likely to result in a loss of
- Sight
- Hearing
- Touch

Injuries that require a critical intervention such as CPR, artificial ventilation or control of hemorrhaging or treatment beyond First Aid, such as the intervention of Emergency Health Services personnel (e.g. transportation to further medical attention), a physician and subsequent surgery, or admittance to an intensive care unit should also be considered "serious injuries."

"Major Release of a Hazardous Substance"
Section 172 provides that employers must notify WorkSafeBC of any accident that involved the major release of a hazardous substance. The term "major release of a hazardous substance" is explained in Policy Item D10-172-1.

A major release does not only mean a considerable quantity, or the peculiar nature of the release, such as a gas or volatile liquid, but, more importantly, the seriousness of the risk to the health of workers. Factors that determine the seriousness of the risk include the degree of preparedness of the employer to respond to the release, the necessity of working in close proximity to the release, the atmospheric conditions at the time of the release and the nature of the substance.

"Immediately"
Employers are required to report serious injuries and fatalities to WorkSafeBC immediately. This reporting should occur as part of the employers' response at the time of the incident. In responding to the incident, employers should ensure any workplace conditions that present an immediate hazard to other workers are addressed, ensure first aid and medical treatment for the worker, and then notify WorkSafeBC of the incident.

The purpose of the reporting requirement in s. 172 is to ensure that a WorkSafeBC prevention officer and/or an investigations officer is able to respond to the incident, as soon as possible, in order to:

Attend at the scene to conduct an investigation of the incident and ensure the integrity of the scene
Offer availability of counseling services, as appropriate
Undertake an inspection of the workplace to help ensure that workers are protected before work is resumed
Help ensure that any post-incident response or cleanup is performed in a safe manner
Provide a referral to compensation services

The requirement to immediately report a serious injury or fatality is separate from the requirement to report injuries for claims purposes. Filing a Form 7 will not satisfy the obligation to immediately report a serious injury or fatality.

Failure to immediately notify WorkSafeBC of a serious injury or fatality will be considered a breach of section 172 of the Act, and may result in an administrative penalty.

To report a serious incident or fatality, phone 1 888 621-SAFE (7233) (during business hours) or toll-free 1 866 WCB-HELP (922-4357) (after hours).

Guidelines Workers Compensation Act Part 3 Division 11

G-D11-179-1 Advance notice of inspections

Issued October 27, 2004

Section 179(1) and (2) of the Workers Compensation Act states:

(1) An officer of the Board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of

(a) preventing work related accidents, injuries or illnesses,

(b) ascertaining the cause and particulars of a work related accident, injury or illness or of an incident that had the potential to cause a work related accident, injury or illness,

(c) investigating a complaint concerning health, safety or occupational environment matters at a workplace, or

(d) determining whether there is compliance with this Part, the regulations or an order.

(2) An inspection may be conducted

(a) at a reasonable hour of the day or night, or

(b) at any other time if the officer has reasonable grounds for believing that a situation exists that is or may be hazardous to workers.

Section 182 of the Act deals with the right of the employer and workers to have a representative present during an inspection. Section 182(5) states that "nothing in this section requires the Board or an officer to give advance notice of an inspection".

An inspection is a visit to a workplace to assess compliance with the regulations or to observe work procedures and conditions at the site.

Board prevention officers conduct inspections on the basis of a high-hazard priority system; that is those industries which involve a higher risk to workers are inspected more frequently than lower-risk industries.

Inspections take place whenever and wherever work is being done. They include isolated work locations, adverse weather conditions and shift work outside of the normal nine-to-five pattern.

Inspections may be made with no prior notice to any employer, union official, or any other person, except as specified below.

Where a union official or other worker makes a specific complaint, and also indicates a desire to personally show a prevention officer the subject of the complaint, a Board officer may make an appointment with that person for that purpose; but no other person will be informed of the intended inspection except another regulatory body when coordinated attention may be required.
Where an employer requests an inspection, it may be arranged by appointment with the employer; and in that case, the appropriate union official or workers' representative should also be informed.
Where a prevention officer regards it as necessary for the proper completion of an inspection that a particular management or union official, or other person, should be present, the officer may arrange an inspection by appointment. In that case, the appointment will be arranged with the appropriate management official, and the appropriate union official or appropriate workers' representative. Successive inspections by appointment should not be arranged at the same place of work.
Other situations by specific direction of the prevention officer's Regional Manager.

The above relates only to attendance for inspections for matters of occupational health, safety or first aid. It does not relate to attendance for other purposes.

If an employer invites an officer to inspect or review all or part of a work site and consult with the employer on the work site's compliance, and violations of the regulations are observed, officers are to initiate an inspection and issue appropriate orders.

With regard to operations with multiple temporary locations, the procedure is to contact the head office of the employer to determine the location of each individual project that the employer is operating. These are usually construction, excavation or logging operations of less than six months duration. The information received is relayed to Board officers in the relevant areas, and inspections are carried out. Where operations of this kind are noticed by an officer without information having been received from the head office of the employer, inspections will be carried out on the spot.

G-D11-179-2 Commencement of an inspection

Issued October 27, 2004

When starting an inspection, a Board prevention officer will inform the employer and worker representative, if any, as to the nature of the inspection; that is safety or hygiene, occupational environment, medical, or a combination of any two or more. Although an inspection is made for a specific purpose, for example safety, other observed violations will be addressed.

There are special procedures for initiating certain types of inspections, for example, federal WHMIS inspections conducted on behalf Human Resources Development Canada. The officers doing those inspections will be trained in those procedures.

Where a prevention officer attends at a place of work for a purpose other than an inspection, the employer and the appropriate workers' representative should be notified that the officer has not come for an inspection, although immediate hazards observed by the prevention officer will be addressed.

A prevention officer will only cross a picket line, legally established or otherwise, to carry out Board duties when so directed by a Manager or Director and when the union organizing the line agrees. If the union does not agree, the prevention officer will report the circumstances to the Manager or Director for instructions.

For the right of the employer and workers to have a representative accompany the officer during an inspection, see sections 140 and 182 of the Act and Policy D4-140-1.

G-D11-179-3 Follow up inspections

Issued October 27, 2004

A follow-up inspection is conducted to determine whether the orders issued on the last inspection have been complied with.

The employer's and the workers' representatives will be contacted at the start of the inspection and have a right to accompany the Board prevention officer.

If the employer has failed to comply with an order on the last inspection report, the order may be re-issued as a repeat, and the officer may require the employer to send a compliance notice to the Board.

Orders may be issued for new hazards observed during a follow-up inspection. Where no new orders or no repeat orders are necessary, this will be stated in the report.

G-D11-179-4 Use of equipment during inspections

Issued October 27, 2004

The inspection of a place of employment, the investigation of accidents or inquiries by an officer of the Board is not dependent upon any permission from the employer (Section 179(1) and (2) of the Workers Compensation Act). The right of entry for inspection carries with it the right to bring and use the normal equipment required for safety and health inspections. The sampling, measurement, recording and testing equipment includes cameras and cannot be subject to limitations imposed by the employer. (Section 179(3))

The employer may object to use of equipment in the workplace on the grounds the use of the equipment could endanger workers, for example, the use of flash bulbs in an atmosphere where high concentrations of flammable gases or vapours may be present. The Board prevention officer should ensure the use of the equipment will not endanger workers in the place of employment where the equipment is intended to be used by the officer.

The officer will consider any concerns of the employer or any other person at the workplace about the prevention officer using equipment in the workplace. Depending on the circumstances, the prevention officer may proceed to use the equipment, consult with his or her manager or take whatever other steps seem appropriate.

G-D11-179-5 Incident Investigations

Issued: September 28, 2005; Revised February 6, 2006

Regulatory excerpt
Section 178 of the Workers Compensation Act ("Act") states:

This Division, as it applies in relation to inspections, also applies to investigations and inquiries.

Section 179(1) of the Act states:

An officer of the Board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of

(a) preventing work related accidents, injuries or illnesses,

(b) ascertaining the cause and particulars of a work related accident, injury or illness or of an incident that had the potential to cause a work related accident, injury or illness,

(c) investigating a complaint concerning health, safety or occupational environment matters at a workplace, or

(d) determining whether there is compliance with this Part, the regulations or an order

Purpose of guideline
The purpose of this guideline is to specify the responsibilities and practice for Worker and Employer Services Division (WES) prevention officers and Fatal and Serious Injury Investigations (FSII) investigating officers pertaining to the conduct of investigations.

Purpose of Board investigations
Under section 111 of the Act, the Board has a statutory mandate and duty to be concerned with occupational health and safety ("OH&S") generally and to undertake inspections, investigations and inquiries on matters of OH&S and occupational environment.

The Board responds to all reported workplace incidents that result in death or a serious injury, or that present a high risk of causing a serious injury or death to workers. Depending on the circumstances of the incident, the Board may conduct an in-depth investigation and produce an Accident Investigation Report.

The purpose of a Board investigation is two-fold. First, it is to identify the cause of the incident to learn how to prevent similar accidents from occurring in the future. The second purpose is to determine whether there has been non-compliance with the applicable OH&S law and to ensure that appropriate action is taken to promote future compliance. The overriding goal is to prevent workplace incidents through education and deterrence of unsafe practices.

Responding to incidents that may require investigation
WES prevention officers will respond to all:

Reported workplace incidents resulting in fatal or serious injuries.
Incidents that do not result in injury but where there is a high risk of fatal or serious injury to occur (near miss).

FSII investigating officers will investigate:

Any workplace accident that resulted in the death of a worker.
Selected serious injuries and near miss incidents.

FSII investigating officers will consider investigating any incident:

Where the cause of incident is unknown or difficult to determine.
That has potential for new or significant lessons-to-be-learned that can be communicated to stakeholders.
That supports a Board strategic initiative to reduce the serious injury rate.
Where the frequency of the incident as it relates to other similar incidents within an industry or sector appears to be on the rise.
Where the circumstances of the incident suggest it is in the public interest.
That is reportable pursuant to section 172 of the Act. Under s. 172 of the Act, employers are required to immediately notify the Board of the occurrence of any accident:

That resulted in serious injury to or the death of a worker.
Involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation.
Involved the major release of a hazardous substance.
Was an incident required by the OHS Regulation to be reported.
A blasting accident that is required to be reported as per s. 21.3 of the OHS Regulation.

The Board may determine not to investigate every reportable incident. However, incidents not undertaken by FSII will be inquired into by the WES prevention officer in accordance with established inspection guidelines. In these cases, the preparation of a Board Accident Investigation Report is not required.

The Director of Investigations may direct an FSII investigation into any incident.

It is good practice for the officer to explain the investigation process to the employer and advise the employer of the potential for sanctions under the Act.

Practice
WES Responsibilities
When notified, a WES prevention officer will respond to a report of an incident.

The prevention officer will commence collecting information to determine the facts and circumstances of the incident. This may require going to the scene of the incident or making sufficient telephone inquiries. If the prevention officer response will result in a Notice of Incident the officer will contact and inform FSII as soon as practicable. In most cases, this should be done shortly after the prevention officer has arrived at the scene of the incident or has made sufficient inquiries to confirm the details of the incident reported, such as nature of injuries, WCB jurisdiction and employer contacts.

For after hours or holidays, the prevention officer will provide the information to the prevention duty manager who will then, if the circumstances warrant, contact and inform the manager of FSII.

It is important that the prevention officer communicate sufficient information and details about the incident and the parties involved. This will enable the FSII officer or manager to assess the incident, record the details and provide a timely decision to the prevention officer as to whether FSII will be investigating the incident.

The prevention officer will take initiative to secure the incident scene and begin collecting evidence. If an investigating officer is assigned the investigation, the transition of the file to FSII will be through collaboration and discussion between the prevention officer and the investigating officer.

The prevention officer will issue an Inspection Report to the "incident employer" documenting the officer's initial response to the incident before leaving the scene or as soon as practicable thereafter. The Inspection Report may contain orders that address immediate safety concerns or compliance issues (see Shared Responsibilities below).

The prevention officer will complete and submit a Notice of Incident, generally within 48 hours of the officer's response.

Prevention officers will follow up on orders that have been issued accordingly.

FSII Responsibilities
Upon being notified of an incident, FSII will take the prevention officer's name and call back number and return the call within 15 minutes.

Where an investigating officer is assigned to investigate the incident, the investigating officer will contact the prevention officer immediately and coordinate their response accordingly. The investigating officer will be responsible for the investigation, and providing a detailed Investigation Report upon conclusion.

The investigating officer will also issue an Inspection Report upon the conclusion of the investigation, in collaboration with the prevention officer. The Inspection Report text will provide a summary of the investigation and its findings and may also contain associated orders and the basis for the orders. If no orders result, the reasons for the decision not to issue orders will be contained in the inspection text.

Administrative penalty considerations may be considered following established Board policy and procedures.

Shared Responsibilities
A prevention officer or investigating officer may issue orders at any time during the accident investigation process, depending on the circumstances. For example, where there is an immediate high risk situation, a stop work order may need to be issued. There may also be circumstances where there are violations unrelated to the accident that require orders to be issued to address a specific safety issue or concern.

Once an investigating officer is actively involved in an investigation, all orders that are issued will be through collaboration and discussion between the prevention officer and the investigating officer. Typically, the prevention officer will be responsible for the management of all outstanding orders in accordance with the Inspection Order Management System business rules. Orders issued by the investigating officer will be transferred to the prevention officer.

G-D11-179(1) Board Authority on a Public Road

Issued August 16, 2000; Editorial Revision October 2004

Section 179 (1) of the Workers Compensation Act states "An officer of the board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of

(a) preventing work related accidents, injuries or illnesses,

(b) ascertaining the cause and particulars of a work related accident, injury or illness or of an incident that had the potential to cause a work related accident, injury or illness,

(d) determining whether there is compliance with this Part, the regulations or an order."

Note section 178 of the Act sets out that the authority under section 179 to conduct inspections also applies to investigations and inquiries.

Officers of the Board have not traditionally investigated vehicle accidents occurring on highways or other public roads. The practice was in part based on Policy 6.04 of the Occupational Safety and Health Division Policy and Procedure Manual, which discusses the investigation of log truck accidents. Policy 6.04 states that the Board's inspection jurisdiction is limited to "landings, dumpsites, sorting yards, wharves, and other areas involving loading or unloading equipment on an industrial road"; it does not extend to other portions of industrial roads nor to public highways. The policy also states that the Board must be notified of accidents involving injuries on public highways or any portion of an industrial road in all cases, and in some situations the Board may investigate those accidents. This policy is based on a 1982 letter from the Superintendent of Motor Vehicles.

A recent court decision (Regina vs. H.M.C. Services Inc) and changes to the Workers Compensation Act have made Policy 6.04 no longer valid. In the referenced court case the Board initiated a prosecution as a result of a vehicle accident occurring on a public highway in 1998. The case involved a road sweeper unit being operated on a public road without any traffic control in place. The employer brought a preliminary challenge to the Board's jurisdiction to investigate an accident on a public highway. The court ruled that the Board has jurisdiction to inspect where a worker or employer is involved.

In addition to the above referenced court decision, the following discussion looks at some other applicable principles.

1. Section 108(1)(b) of the Workers Compensation Act states that the Board's prevention jurisdiction extends to "every employer and worker whose occupational health and safety are ordinarily within the jurisdiction of the Provincial government". Section 108(2) of the Act excludes certain industries from the Board's jurisdiction under Part 3 of the Act, notably mines and railways, but does not generally exclude vehicle accidents or highways. Certain operations on highways, such as inter-provincial trucking, fall within federal jurisdiction and are therefore excluded from the Board's jurisdiction by the Constitution of Canada. Apart from these exceptions, the Board has jurisdiction over all work activities on highways in BC.

2. If the Board has prevention jurisdiction over a particular industry, location, activity or other circumstance, all the relevant prevention provisions of the Act and regulations apply. This includes the obligation of the employer to notify the Board of accidents, and the Board's powers to inspect and investigate accidents. It is not possible, for example, for there to be an obligation to notify the Board without there being a right to inspect and investigate.

3. There are several other provincial statutes regulating activities on public roads. These include the Commercial Transport Act, the Forest Practice Code of British Columbia Act, the Highway Act, the Industrial Transportation Act, the Motor Vehicle Act, and the Motor Carrier Act. These Acts do not remove the Board's general jurisdiction over activities on highways. Generally speaking, persons on highways must comply with all the relevant provisions of the applicable acts and regulations. If, for example, there are Motor Vehicle Act regulations and Workers Compensation Act regulations governing their activities, they must follow both.

4. If there is an inconsistency between two Acts or their regulations, the one that is most specific to the particular circumstance will govern. This means that generally speaking the special provincial acts relating to highways listed in item 3 above would override any contrary provision in the Board's regulations. This is reflected in the note to section 16.2 of the OHS Regulation, which states "Mobile equipment required to meet the requirements of the Motor Vehicle Act or the Industrial Transportation Act is subject to this Regulation for matters not specifically governed by those Acts and the regulations under them."

5. It is not the role of officers of the Board to enforce other provincial acts and regulations relating to activities on public roads. Inspections and investigations by officers of the Board should generally be confined to matters covered by the Workers Compensation Act and regulations. Violations of other acts and regulations would typically be drawn to the attention of the other appropriate jurisdictional authority.

Policy 6.04 was retired effective October 1, 2001.

Officers of the Board should inspect and investigate occurrences on highways on the basis of the same criteria that they apply with respect to other workplaces. This means they should not inspect or investigate if:

1. activities of the employer are subject to the specific exceptions in section 108(2) of the Act or to federal jurisdiction,

2. the circumstances involve an issue where the governing statutory or regulatory provision is under an act other than the Workers Compensation Act, for example, an accident resulting from a violation of the rules of the road laid down under the Motor Vehicle Act.

Federal jurisdiction over motor vehicles can generally be determined by looking at or inquiring on three criteria. First is the way the company or operation is chartered or governed. For example, operations of the federal government are in this group, as well as activities of airlines, telecommunication and broadcast (radio, television and cable TV) operations. Second is how the labour relations of the operation are governed. If the Canada Labour Code is the applicable law, it is federal jurisdiction. If the BC Labour Code applies, it is provincial jurisdiction and the WCB likely has inspection and investigation authority. And third, if the company is a transportation operation regularly transferring items to or from locations outside of BC, it is likely a federal jurisdiction. Note the Board generally administers work-related injuries or occupational disease claims from the federal jurisdiction, but this aspect is not an indicator of the Board's jurisdiction to inspect or investigate for prevention purposes at a particular operation or activity in the federal jurisdiction.

An officer of the Board should not exercise the Board's authority to inspect or investigate work activity involving vehicle operation on a public road by flagging down and stopping a moving vehicle, unless such activity is being done jointly with another jurisdiction authorized and equipped to do so. Police or inspectors operating under the authority of the Motor Vehicle Act are examples of other jurisdictions that have such authority and the relevant equipment.

If a vehicle is stopped on a public road, an officer of the Board needs to exercise good judgement in determining whether it is reasonably safe to carry out an inspection or investigation at that time. This involves consideration of traffic volume on the road, sight lines for other vehicle operators to see and safely react to the stopped vehicle's location, and if other traffic can safely pass the stopped vehicle. If necessary, the officer should ask the driver to move the vehicle to another location on the road nearby or elsewhere so the inspection may be safely conducted.

If an inspection/investigation is taking place at the scene of a vehicle accident, an officer of the Board should only proceed with onsite activity if the scene is effectively controlled as necessary to make it safe from other road traffic. The officer should also make sure the vehicle(s) involved are not presenting a hazard through instability or the release of a hazardous material.

G-D11-179(3)(c) Use of Legal Sample Bags for samples collected by Board officers

Issued April 27, 2000; Editorial Revision October 2004

Section 179 (3) (c) of the Workers Compensation Act states that an "officer may ...for the purposes of an inspection under this Division ...take samples and conduct tests of materials, products, tools, equipment, machines, devices or other things being produced, used or found at the place, including tests in which a sample is destroyed;..."

Effective January 1, 2000, the Prevention Division initiated a "Preservation of Sample" program for all samples collected by a Board officer for submission to Occupational Disease Prevention Services for laboratory analysis. This is to ensure continuity of evidence and establish that tampering has not occurred during the conveyance of the sample (in a Legal Sample Bag) from the officer to Occupational Disease Prevention Services representative. This procedure is consistent with the generally accepted practices followed by other enforcement agencies for the seizure of items related to criminal investigations.

Each sample is to be sealed individually into a Legal Sample Bag at the time the sample is taken. This applies to all samples, whether a bulk sample or an air monitoring cassette or similar sample collection device. Bulk samples, such as asbestos-containing material, should be placed in a glass Teflon vial or other sealed enclosure before being placed in the Legal Sample Bag. Officers are to use sampling supplies and shipping containers as provided by Occupational Disease Prevention Services. The officer must fill out the required information indicated on the label attached to the legal sample bag. Ensure the bag is effectively sealed using the label fold-over tab. Ship the samples in accordance with the Occupational Disease Prevention Services "Field Officer Sampling Guide" along with a completed Analytical Request form.

Upon receipt of each sample bag at the laboratory, a laboratory representative will check the integrity of the sample bag. If the bag appears to be properly sealed and in good condition, the laboratory representative will indicate this by signing the sample bag label and forwarding the sample for the required analysis. If the sample bag appears to have been improperly sealed, tampered with, or has been opened, the officer who submitted the sample will be contacted by the laboratory representative to discuss why this may have occurred, and to make a decision on analysis and use of the sample results.

Requests for supplies of Legal Sample Bag and other sampling equipment and collection devices should be made to the Occupational Disease Prevention Services. For further information on the collection and shipment of samples, refer to the current "Field Officer Sampling Guide" issued by Occupational Disease Prevention Services.

Guidelines Workers Compensation Act Part 3 Division 12

G-D12-187-1 Worker orders

Issued October 31, 2002; Editorial Revision June 2005; Editorial Revision April 4, 2007

Regulatory excerpt
Section 116 of the Workers Compensation Act ("Act") states:

(1) Every worker must

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

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

(2) Without limiting subsection (1), a worker must

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

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

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

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

(e) report to the supervisor or employer

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

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

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

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

Section 117 of the Act states:

(1) Every supervisor must

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

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

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

(2) Without limiting subsection (1), a supervisor must

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

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

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

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

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

Section 187(1) of the Act states:

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.

Purpose of guideline
The purpose of this guideline is to discuss the issuing of an order to a worker or supervisor (both are considered "workers") where they fail to fulfill their duties under the Act or the OHS Regulation ("Regulation").

Background
Under the broad enforcement power in section 187 of the Act, WorkSafeBC prevention officers may issue orders to various parties pursuant to provisions of the Act and the Regulation. The general duty sections of Part 3, Division 3 of the Act assign responsibilities for health and safety in the workplace to employers, workers, supervisors, prime contractors, and suppliers, as well as directors and officers of corporations. If a violation of the Act or Regulation occurs, one or more of these parties may be held accountable for the violation. A prevention officer may issue an order to any party with responsibilities under the Act or Regulation, including workers and supervisors.

Procedures

An Order to Worker may be issued during an inspection, complaint investigation, or following an accident investigation.
A prevention officer need not personally observe a worker or supervisor commit a violation to issue a worker order if other evidence is available which confirms the violation.
At the time an Order to Worker is issued, the prevention officer will present and explain the order to the worker and the worker's supervisor, and request that they sign the Order to Worker form.
A copy of the Order to Worker is mailed to the worker's union, if the worker authorizes the disclosure in writing.
Prosecution against a worker will be considered where the worker's violation exposed other workers to a serious risk of injury or disease.

Posting of Worker Orders

The prevention officer should instruct the employer to post the Order to Worker at the workplace in a similar manner that is required to post an Inspection Report (IR). The employer should be instructed to give a copy of the Order to Worker to the joint health and safety committee or worker health and safety representative, as applicable. The authority to instruct the employer to post the Order to Worker is section 187(2)(f) of the Act. Under this section, a prevention officer may also order any person to post the Order to Worker, if the prevention officer deems it necessary.

Disclosure to the employer of the Order to Worker and posting the Order to Worker are meant to assist workplace parties to maintain reasonable standards for occupational health and safety. For example, the information on an Order to Worker can assist an employer to:

Determine what procedure or practice improvements, training, or other measures may be required in the workplace to prevent similar violations
Ensure that the violator was the employer's worker or supervisor and not that of another party such as a subcontractor
Identify the possible need for corrective action relating to a particular worker or supervisor, such as further training or discipline
Make other parties at the workplace aware of potential hazards and improper practices

Information in an IR

Where an Order to Worker is being written as the result of a prevention officer's findings on an inspection, the prevention officer should reference the number of the Order to Worker report in the applicable IR. The name or other personal information about the worker related to the Order to Worker should not be included in the IR or in any other records that are available to the public upon request to Prevention Records. A request to WorkSafeBC for disclosure of an Order to Worker report will be dealt with by Prevention Records, and in accordance with the Freedom of Information and Protection of Privacy Act.

G-D12-187-2 Order(s) when there is no violation

Issued June 26, 2003; Editorial Revision June 2005

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 or the regulations.

Section 187 of the Workers Compensation 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 the Board 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 an officer will issue compliance order(s) even when no violation of the Act or the regulations has occurred. Policy on the authority of an 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 an officer of the Board to issue an order only in the circumstances where a violation is occurring or has occurred.

An 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 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 officer that he or she will not comply with the requirements of the Act or the regulations, the 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 officer should not write an order. The officer must record the particulars of this discussion in the inspection text of the IR or on a CR.

There may be occasions when an 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 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:

the person would have to take reasonable steps prior to a work activity in order to comply with the Act or the regulations, and
the person who is subject to the order has not taken, in a timely fashion, the reasonable steps required in order to comply.

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. An 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 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 applies. The 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 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 OHS 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 the Board to locate and review these types of orders, the 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, an 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.

G-D12-188(4)-1 Extension of Implementation Period

Issued May 15, 2002; Revised January 1, 2004; Editorial Revision October 14, 2004

Section 188(4) of the Workers Compensation 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 the Board'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 Regulation ( 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 officers of the Board to make orders under those directives in addition to any specific conditions or restrictions named in the guideline:

1. Prevention officers will not issue orders for violations of the sections of the OHSR that are the subject of a directive to extend the implementation period.

2. Orders may be issued for violations under other sections of the OHSR which may apply - including the other sections noted in some of the directives - and under Part 3 of the Act - including the general duties of employers, workers, supervisors, prime contractors, owners, and suppliers.

3. These conditions and restrictions apply to all WCB occupational health and safety related officers conducting inspections or investigations as well as to officers and management personnel considering orders and administrative penalties made pursuant to inspections or accident investigations.

G-D12-188(4)-2 Assignment of authority by the Vice President

Issued June 1, 2006

Regulatory excerpt
Section 188(4) of the Workers Compensation 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.

Purpose of guideline
The purpose of this guideline is to describe the assignment of certain duties and authorities under the OHS Regulation by the Vice President, Worker and Employer Services Division ("WES Division") to designated positions within the WES Division.

Introduction
The Assignment supplements, and is in addition to, the assignments made under Part 3 of the Workers Compensation Act ("the Act") pursuant to the current President's Assignment of Authority Part 3.

The Assignment has the effect of placing conditions and restrictions under section 188(4) of the Act, on the broad authority given to officers of WorkSafeBC to make determinations and issue orders under Part 3 of the Act.¹

The Assignment is in no way intended to limit the authority of the Vice President by virtue of that position, to make assignments and issue directions to persons within the WES Division, including directors, managers and officers, regarding the performance of their duties.

Where the Assignment grants authority to one position only, the authority must be exercised by that the person personally serving in that position, or by the person designated to act in their stead (their designated alternate).

Assignments

Unless otherwise provided under the Assignment of Authority, the Vice President of the WES Division, or their designated alternate, has the exclusive authority to make designations, grant approvals, acceptances, authorizations and permissions, and exercise such like authority under the OHS Regulation.
Authority under the OHS Regulation that may be exercised only by the Director of the Regulatory Practices Department or their designated alternate:

	General	Grant prior approval, acceptance, authorization or permission where a section requires that it must be obtained from WorkSafeBC before work commences
	4.4(2)	Determine alternative publications, codes or standards acceptable to WorkSafeBC
	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 (providing and ensuring workers' proper use of personal dosimeters)
	9.1	Determine excluded confined spaces (in conjunction with Exclusions Committee)
	9.22(1)	Accept alternate measures (for isolating confined spaces)
	10.10(2)	Approve control system energy isolating devices and procedures
	14.14(h)	Specify hoisting equipment
	16.13(6)	Exempt mobile equipment from braking requirements
	19.16(2)	Accept written safe work procedures (working on high voltage electrical equipment where isolation is not practicable)
	19.29	Determine whether procedures are acceptable to WorkSafeBC when working in proximity to high voltage equipment
	22.54(d)	Give written permission for equipment repair facility or refueling depot underground.

Authority under the OHS Regulation that may be exercised only by the Director of Industry and Labour Services, or the Manager of the Provincial Programs and Technical Services Department, or their respective designated alternates:
- Determine acceptable alternative standards for noise exposure measurement under section 7.3(2)(a)
- Determine acceptable alternative types or standards of equipment under section 7.7(1)(c)
- Determine who is authorized to conduct hearing tests under 7.8(2)
Authority under the OHS Regulation that may be exercised only by the Director of Industry and Labour Services, or the Manager of the Certification Services Department, or their respective designated alternates:
- Determine the courses of instruction, education or training that are acceptable to WorkSafeBC where exercise of such authority is referenced in the OHS Regulation
- Determine appropriate circumstances and acceptable alternative procedures under section 21.69(2) (alternative warning procedures in blasting)
- Accept alternative blasting procedures under section 21.85(4)

¹ The President and Chief Executive Officer from time to time issues assignments of authority under Policy D2-111-1 of the Prevention Manual. Under the assignment dated February 25, 2004, the President has assigned to the Vice President, WES authority to exercise or sub-delegate the powers under section 188(4) of the Act. That section states: "An officer of the Board may exercise the authority of the Board to make orders under this part, subject to any restriction or conditions established by the Board."

G-D12-190 Orders to stop using or supplying unsafe equipment, etc.

Issued June 26, 2003; Editorial Revision June 2005; Editorial Revision April 9, 2009

Section 190 of the Workers Compensation Act states:

(1) If the Board has reasonable grounds for believing that a thing that is being used or that may be used by a worker
(a) is not in safe operating condition, or
(b) does not comply with this Part or the regulations,
the Board may order that the thing is not to be used until the order is cancelled by the Board.

(2) If the Board has reasonable grounds for believing that a supplier is supplying a thing that
(a) is not in safe operating condition, or
(b) does not comply with this Part or the regulations,
the Board may order that supplier to stop supplying the thing until the order is cancelled by the Board.

(3) Despite section 188 (1), an order under this section may only be made in writing.

(4) The Board may cancel an order under this section only if it is satisfied that the thing in respect of which the order was made is safe and complies with this Part and the regulations.

This guideline discusses the application of section 190 of the Act. An order under section 190(1) will be issued on the employer of the worker using or who might use the unsafe or non-compliant thing, and/or the prime contractor if it is a multi-employer workplace. An order under section 190(2) will normally be issued on the supplier or owner of the unsafe or non-compliant thing. Generally an order under section 190 will only be considered if use of the unsafe or non-compliant thing, without correction, would present an immediate danger to workers.

An order under section 190 must be made in writing and will normally be done by an officer using an Inspection Report (IR). However, the order may also be issued through delivery of a letter from the Board to the employer, supplier, or owner, as applicable. At this stage, there is no violation of section 190.

The order should cite section 190 as the authority under which the officer is ordering that the thing not be used [section 190(1)], or that the supplier or owner stop supplying the thing [section 190(2)]. The order must describe the circumstances rendering the thing not in safe operating condition and/or how the thing does not comply with the Act or the regulations. There will likely be a violation of one or more sections of the Act or regulations, and the IR containing the order to stop use or supply should contain the order(s) related to such non-compliance. Orders for any other violations observed but not part of the conditions related to the order to stop use or supply should be issued on a separate IR.

If the officer sees a need to increase the visibility of the order to stop use or supply, a placard using Form 190(1), "Order to Stop Use," or Form 190(2), "Order to Stop Supplying," may be created and posted. These forms can be found at the end of this Guideline. If the officer wants the order and placard to be posted and maintained posted, an appropriate order citing section 187(2)(f) of the Act should be included as part of the IR or letter containing the order to stop use or supply. Alternatively, the officer can personally post the order under the authority provided by section 193.

An order issued by an officer under the authority of section 190 is not "time limited". (An order to stop work issued by an officer under section 191 has to be confirmed in writing by the Board if it needs to remain in effect for longer than 72 hours.) The order to stop use or supply stays in effect until it has been cancelled in accordance with section 190(4). Whenever an order to stop use or supply is issued, the officer must inform the regional manager as soon as practicable, and the regional manager must inform the director of the applicable region.

The Board may cancel an order issued under section 190 only if it is satisfied the thing in respect of which the order was made is safe and complies with the Act and the regulations. The decision to cancel such an order must be made by an officer of the Board, once the officer has determined these conditions have been met. The officer should cancel the order by issuing a follow-up IR or letter to the employer, supplier, or owner, as applicable. The IR or letter should state compliance with section 190(4) has been achieved. If a placard was issued and posted as a result of an officer's order the officer must remove it or instruct the employer or supplier to remove it as part of the process to cancel the order.

Note when an order to stop use or supply is issued under the authority of section 190 of the Act , the provisions of section 192 may apply if workers are temporarily laid off, or assigned to alternative work. Section 192 of the Act states

(1) If, as a result of an order made under section 190 or 191, a worker is temporarily laid off, the employer must pay the worker the amount the worker would have earned or, if this cannot be readily determined, the amount the worker would have been likely to earn,
(a) for the day on which the order came into effect and for the next 3 working days during which the order is in effect, or
(b) for a longer period, if this is provided under a collective agreement.

(2) Nothing in this section prevents workers affected by an order referred to in subsection (1) from being assigned to reasonable alternative work during the time that the order is in effect.

Section 193 of the Act states

(1) An officer may
(a) post at a workplace, or
(b) attach to any product, tool, equipment, machine, device or other thing,
a copy of an order or a notice related to that order.

(2) An order posted or attached under subsection (1) must not be removed except
(a) in accordance with the order, or
(b) by an officer or a person authorized by an officer.

Order to Stop Use

Order to Stop Supplying

G-D12-191 Order to stop work

Issued June 26, 2003; Editorial Revision June 2005

Section 191 of the Workers Compensation Act states:

(1) If the Board has reasonable grounds for believing that an immediate danger exists that would likely result in serious injury, serious illness or death to a worker, the Board may order
(a) that work at the workplace or any part of the workplace stop until the order to stop work is cancelled by the Board, and
(b) if the Board considers this is necessary, that the workplace or any part of the workplace be cleared of persons and isolated by barricades, fencing or any other means suitable to prevent access to the area until the danger is removed.

(2) If an order is made under subsection (1)(b), an employer, supervisor or other person must not require or permit a worker to enter the workplace or part of the workplace that is the subject of the order, except for the purpose of doing work that is necessary or required to remove the danger or the hazard and only if the worker
(a) is protected from the danger or the hazard, or
(b) is qualified and properly instructed in how to remedy the unsafe condition with minimum risk to the worker's own health or safety.

(3) Despite section 188 (1), an order under this section
(a) may only be made in writing, and
(b) must be served on the employer, supervisor or other person having apparent supervision of the work or the workplace.

(4) An order under this section expires 72 hours after it is made, unless the order has been confirmed in writing by the Board.

This guideline discusses the process for issuing an order under section 191 of the Act . An officer of the Board may decide to issue an order to stop work under section 191 upon observing or determining that conditions exist that pose an immediate danger to workers and are likely to result in serious injury, serious illness, or death to a worker. If necessary, the officer may order that the workplace or any part of the workplace involved in an order to stop work be cleared of persons and isolated by barricades, fencing, or any other means suitable to prevent access to the area until the danger is removed.

When to issue an order under section 191

When an officer observes a condition that poses an immediate danger of death, serious injury, or serious illness to a worker, the officer must immediately notify the most senior representative of the employer in the vicinity of the immediate danger. In some cases this may be the worker(s) exposed to the immediate danger, if no supervisor or other management representative of the employer is readily present. The employer's representative must be advised of the officer's findings of immediate danger and verbally directed to take immediate measures to remove workers from exposure to the immediate danger. In most circumstances this will require the employer's representative to stop work in the area where the danger exists, and have workers leave the area in a safe and orderly manner.

Prevention Manual Item D12-191-1 states that "in considering whether there are reasonable grounds for an [order to stop work], the officer will consider his or her own knowledge and experience regarding the situation along with any advice and assistance that may be immediately available." Such advice and assistance would typically be obtained by contacting a fellow officer, subject matter expert (SME) resource officer, engineer, regional manager, or senior manager as appropriate. Item D12-191-1 further states that "to avoid the potential for workers to continue to be exposed to an immediate danger, an officer might need to make a decision on the spot without doing the full inquiries that might otherwise be desirable." Whether there are reasonable grounds for making an order under section 191 is a matter of fact in each case. Each situation will be different and will present its own circumstances for the officer to consider.

A situation that would require a work stoppage for corrective action to be implemented may not necessarily require an order to stop work under section 191. If a verbal directive followed by a written order and a brief work stoppage can readily correct the situation, it may be appropriate to only write specific orders for the violation, citing the applicable section of the regulation. In such circumstances, typically the work stoppage would be brief and the workers can readily be removed from exposure to the immediate danger while the employer takes prompt corrective action to eliminate the immediate danger, resulting in compliance. For example, if an officer sees a small section of scaffolding being used without all the required components in place, the officer would issue an order with the text in the corrective part of the order stating something similar to "No work shall be conducted from this scaffold until..." In essence, work has been halted and will resume when the necessary corrective actions are implemented.

If the scope of the situation is such that the violation cannot be simply or readily corrected and if workers must be removed from immediate danger, an order to stop work under section 191 is appropriate. Typically, immediate corrective action could not result in compliance because the work needs to be stopped for an extended period of time to explore corrective options and/or because the corrective action affects a large area. In this case, the officer wants verification of controls and safeguards before work commences and before the order to stop work is cancelled. The use of section 191 with an order to stop work puts the officer and the Board in control of the situation by requiring notification when corrective action has been taken. For example, if deficient scaffolding surrounds the entire building, not just a small section of it, an order to stop work under section 191 may be more appropriate, as it would take considerable time to correct the deficiencies.

In the following example, workers are exposed to immediate danger and the corrective measures may take some time. If an officer encounters an asbestos removal operation being conducted without the proper safeguards in place, the officer would cite section 191 and immediately get the workers removed from the area where there is an immediate danger. Work would then be stopped until safe work procedures that establish the necessary safeguards are developed, reviewed, and then implemented.

When an order to stop work is issued under the authority of section 191 of the Act , workers are protected from economic loss for a period of time. The provisions of section 192 may apply if workers are temporarily laid off or assigned to alternative work. This is not the case with an order stopping work briefly for a violation, citing a specific section of the OHS Regulation.

Section 192 states:

(1) If, as a result of an order made under section 190 or 191, a worker s temporarily laid off, the employer must pay the worker the amount the orker would have earned or, if this cannot be readily determined, the amount the worker would have been likely to earn,
(a) for the day on which the order came into effect and for the next 3 working days during which the order is in effect, or
(b) for a longer period, if this is provided under a collective agreement.

(2) Nothing in this section prevents workers affected by an order referred to in subsection (1) from being assigned to reasonable alternative work during the time that the order is in effect.

Order confirmed in writing

Since section 191(3) requires that an order to stop work under section 191 may only be made in writing, the officer must complete the process of issuing the order to stop work by promptly issuing an Inspection Report (IR) citing section 191 of the Act. At this stage, there is no violation of section 191. Section 191 must be cited in the order as the authority under which the officer is ordering work to stop. The order to stop work should describe the circumstances deemed to be the immediate danger, and the extent of the stop work order. The items identified in the order to stop work should deal exclusively with the hazardous condition(s) that constitute the immediate danger. When an immediate danger exists, there will be a violation of one or more sections of the Act or regulations. The IR containing the order to stop work should only contain the order(s) related to such non-compliance. Orders for any other violations observed but not part of the conditions related to the immediate danger should be issued to the employer on a separate IR.

An order to stop work issued by an officer will expire after 72 hours unless the order is confirmed in writing by the Board. The authority of the Board under section 191(4) to confirm the officer's order to stop work beyond the 72 hours has been delegated to the vice-president, Prevention.

Posting the order to stop work

An IR with an order to stop work under section 191 must be served on the employer, supervisor, or other person having apparent charge or supervision at the workplace affected by the order. The IR should be posted at the workplace in the area or on the thing affected by the order to stop work. The officer may personally post the order as provided for by section 193.

Section 193 of the Act states:

(1) An officer may
(a) post at a workplace, or
(b) attach to any product, tool, equipment, machine, device or other thing,
a copy of an order or a notice related to that order.

(2) An order posted or attached under subsection (1) must not be removed except
(a) in accordance with the order, or
(b) by an officer or a person authorized by an officer.

Alternatively, section 187(2)(f) of the Act provides that the officer may make an order "requiring a person to post or attach a copy of the order, or other information, as directed by the order or by an officer". Thus the officer can order the employer to post a copy of the IR in a manner where it can be easily observed near the area or equipment affected by the order to stop work. The order should also instruct the employer not to remove the IR until the order to stop work has been cancelled. If posting of the IR is not practicable due to the nature of the work site, the officer must direct the employer's representative to take adequate measures to ensure the affected workers are informed of the IR and order. The employer's representative should also take adequate measures to ensure any other persons who could reasonably be expected to go into the hazard area are informed of the order to stop work. Form 191(3) at the end of this Guideline may be used to generate a placard for posting to increase the "visibility" of the order.

Extending the order beyond 72 hours

The officer issuing the order to stop work must inform his or her regional manager, or designated acting regional manager (or the director of the applicable region, if the regional manager is not available) as soon as possible after an order citing section 191 has been issued. If the officer believes the reason for the order to stop work is not likely to be remedied within 72 hours to allow the order to be cancelled, the officer must so advise the regional manager. The regional manager must then make arrangements to have the order to stop work confirmed in writing by the vice-president, Worker and Employer Services Division (or other person designated by the vice-president to undertake this function on behalf of the Board.) Form 191(4) at the end of this Guideline may be used to develop written confirmation to extend the order to stop work beyond 72 hours. This form (or other written confirmation) will normally be prepared by or in consultation with the office of the director of the applicable region using information provided by the officer who initiated the order to stop work.

If the vice-president (or designate) agrees to confirm the order to stop work, the confirmation order will be signed by the vice-president and returned to the officer as soon as possible. On returning to the workplace, the officer should see if the conditions that created the immediate danger have been corrected. If they have not been corrected, the officer must issue another IR citing section 191(4) of the Act and serve the IR and the confirmation order on the employer. The text of the order on the IR should indicate that a confirmation in writing from the Board was served at the time with the follow-up inspection. Normally a decision code of "Z"; indicating continued non-compliance would be assigned to the confirmation order on this IR.

Cancelling the order to stop work

When the officer has been notified by the employer that corrective action has been carried out to eliminate the immediate danger to workers, or when the officer believes that this correction action has been done, the officer must re-inspect the workplace as soon as practicable. If the officer is satisfied the corrective action that has taken place has resolved the condition of immediate danger, another IR will be issued, citing section 191 and referring back to the previous IRs, stating that the order to stop work is cancelled. Normally a decision code of "C" will be assigned to this order. If an order was issued regarding posting of the IR and/or any placards, the officer should also issue an order that will authorize the employer to remove the IR and any placards related to the order to stop work from the area affected by the order and replace it with the IR providing notice of the cancellation.

Forms

At the end of this Guideline are two optional forms that may be used to generate placards for posting.

Form 191(3), "Order to Stop Work" is for an officer to use when necessary to highlight the order to stop work. The use of this form is optional, as the actual order to stop work is the relevant order(s) contained in the IR.

Form 191(4), "Confirmation of an Order to Stop Work," may be used to confirm the order beyond 72 hours (or another form of written confirmation may be used).

Schematic of decision logic for application of section 191

The following schematic shows the decision logic in the application of section 191 of the Workers Compensation Act .

Schematic of Decision Logic

Order to Stop Work

Confirmation by the Board of An Order to Stop Work

Guidelines Workers Compensation Act Part 3 Division 15

G-D15-214 Prosecutions: Board's practices for providing approval to lay an information in respect of an offence

Issued September 28, 2005

Regulatory excerpt
Section 214 of the Workers Compensation Act ("Act") states:

(1) The time limit for laying an information in respect of an offence is 2 years after the last occurrence of the act or omission on which the prosecution is based.

(2) An information in respect of an offence may only be laid with the approval of the Board.

Purpose of guideline
The purpose of this guideline is to describe the Board's practices related to providing approval to lay an information in respect of an offence, under section 214(2) of the Act.

Background
All prosecutions are conducted by Crown Counsel, pursuant to the provincial Crown Counsel Act. The Board acts as a referring agency only. Prosecutorial activity is undertaken only rarely and in the most egregious cases, in part because administrative penalties can equal or exceed penalties available pursuant to public prosecutions, and can be imposed in a more timely and efficient manner.

How files are selected to be considered for referral to the Crown
All occupational health and safety enforcement proceedings such as administrative penalties, prosecutions and claims cost levies are initiated through the Investigations Division with the assistance of the Division's legal personnel. Where the circumstances of a violation suggest a prosecution may be warranted, the file is referred to the Director of Investigations for consideration. The Director of Investigations determines whether the case warrants referral to the Crown.

Forwarding a file to the Crown
Approval of the Board under section 214(2) is indicated by a letter from the President referring a file to the Crown advising of the Board's approval to lay a specified charge.

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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.

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Guidelines Workers Compensation Act

Guidelines Workers Compensation Act - Contents

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 1

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 3

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 4

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 6

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 9

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 10

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 11

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 12

GUIDELINES WORKERS COMPENSATION ACT PART 3 DIVISION 15

Guidelines Workers Compensation Act Part 3 Division 1

G-D1-107 About OHS Guidelines

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

G-D1-108 - 2 BC Safety Authority

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

G-D1-108-4 Fire safety and prevention

G-D1-108-5 Jurisdiction over railways

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

G-D1-108-7 Jurisdiction over mines

G-D1-108-8 Jurisdiction over marine operations

Guidelines Workers Compensation Act Part 3 Division 3

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

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

G-D3-116 Orders to workers

Appendix

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

Guidelines Workers Compensation Act Part 3 Division 4

G-D4-135-1 Joint committee course approval

Guidelines Workers Compensation Act Part 3 Division 6

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

G-D6-153(1) Determining if a discrimination complaint has been settled

APPENDIX A

Guidelines Workers Compensation Act Part 3 Division 9

G-D9-164 Variance process

Section 164 - Board may authorize variances

Section 166 - Application for variance

Section 167 - Notice of application

Section 168 - Consultation on application

Guidelines Workers Compensation Act Part 3 Division 10

G-D10-172-1 WorkSafeBC notification of serious injuries

Guidelines Workers Compensation Act Part 3 Division 11

G-D11-179-1 Advance notice of inspections

G-D11-179-2 Commencement of an inspection

G-D11-179-3 Follow up inspections

G-D11-179-4 Use of equipment during inspections

G-D11-179-5 Incident Investigations

G-D11-179(1) Board Authority on a Public Road

G-D11-179(3)(c) Use of Legal Sample Bags for samples collected by Board officers

Guidelines Workers Compensation Act Part 3 Division 12

G-D12-187-1 Worker orders

G-D12-187-2 Order(s) when there is no violation

G-D12-188(4)-1 Extension of Implementation Period

G-D12-188(4)-2 Assignment of authority by the Vice President

G-D12-190 Orders to stop using or supplying unsafe equipment, etc.

G-D12-191 Order to stop work

Guidelines Workers Compensation Act Part 3 Division 15

G-D15-214 Prosecutions: Board's practices for providing approval to lay an information in respect of an offence