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Policies Workers Compensation Act

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Policies Workers Compensation Act Contents

Policies relating to the OHS Provisions of the Workers Compensation Act

Division 1 Interpretation and Purposes
D1-107-1 Application of the Act and Policies
D1-108-1 Application of Part 3 - Where Jurisdictional Limits Exist

Division 2 Board Mandate
     D2-111-1 Assignment of Board Authority
     D2-111-3 Board Approval
     D2-113-1 Varying or Cancelling Previous Decisions or Orders

Division 3 General Duties of Employers, Workers and Others
     D3-115-1 Employer Duty Towards Other Workers New Item
     D3-117-1 Supervisors
     D3-118-1 Multiple-Employer Workplaces
     D3-119-1 Owners
     D3-121-1 Directors and Officers of a Corporation
     D3-123/124-1 Overlapping Obligations

Division 4 Joint Committees and Worker Representatives
     D4-125-1 When a Committee is Required
     D4-132/133-1 Procedures and Resolving Disagreements
     D4-134-1 Time Off Work
     D4-135-1 Educational Leave
     D4-139-1 Worker Health and Safety Representative
     D4-140-1 Participation of Worker Representative in Inspections

Division 6 Prohibition Against Discriminatory Action
     D6-150/151/152-1 Scope
     D6-153-1 Investigation of Complaint
     D6-153-2 Remedies

Division 8 Miscellaneous Authority
D8-160-1 First Aid Equipment - Special Rate of Assessment

Division 9 Variance Orders
D9-166-1 Information Required
D9-168-1 Consultation on Application

Division 10 Accident Reporting and Investigation
D10-172-1 Major Release of Hazardous Substance

Division 12 Enforcement
     D12-187-1 OHS Compliance Orders
     D12-188-1 Orders - Contents and Process
     D12-191-1 Orders - To Stop Work
     D12-195-1 Orders - Cancellation and Suspension of Certificates
     D12-196-1 Penalties - Criteria for Imposing
     D12-196-2 Penalties - High Risk Violations
     D12-196-3 Penalties - Prior Violations and Orders
     D12-196-4 Penalties - Authority to Impose
     D12-196-6 Penalties - Amount of Penalty
     D12-196-7 OHS Penalties & Claims Cost Levies - Effect of Application for Stay at Review Division
     D12-196-8 Penalties - Payment of Interest on Successful Appeal
     D12-196-9 Penalties - Prosecution Following Penalty
     D12-196-10 Penalties - Due Diligence
     D12-196-11 OHS Warning Letters
     D12-198-1 OHS Injunctions

Miscellaneous provisions relating to Part 1 of the Act
D24-2-1 Imposition of Levies - Independent Operators
D24-73-1 Imposition of Levies - Charging of Claim Costs

Policies Workers Compensation Act Division 1 Interpretation and Purposes

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

BACKGROUND

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

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

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

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

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

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

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

Section 99(2):

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

POLICY

In making decisions, Board officers must take into consideration:

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

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

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

Section 99(2) of the Act provides that:

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

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

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

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

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

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

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

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	ss. 82(1)(a) and 99(2), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:	This policy applies to decisions on or after March 3, 2003.

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

BACKGROUND

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

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

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

These limits are largely matters of general law over which the Board has no control. They are also too complex to state in this Item.

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

2. The Act
Section 108:

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

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

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

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

(a) mines to which the Mines Act applies,

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

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

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

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

Section 114:

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

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

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

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

POLICY

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

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

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

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

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

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

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

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

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

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

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

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

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

EFFECTIVE DATE:	October 1, 2001
AUTHORITY:	s.108, Workers Compensation Act
CROSS REFERENCES:	See also s.114, Workers Compensation Act
HISTORY:	Housekeeping changes effective September 15, 2010 to remove outdated background information, delete practice reference and make formatting changes. A housekeeping change was made on December 14, 2001.
APPLICATION:	This Item applies to situations arising on and after October 1, 2001.

Policies Workers Compensation Act Division 2 Board Mandate

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

BACKGROUND

1. Explanatory Notes
Section 111 sets out the Board's functions, duties and powers in matters relating to occupational health and safety. The "Board" for this purpose is the corporation known as the Workers' Compensation Board.

The Board of Directors determines what persons should exercise the Board's authority in various areas or the mechanism for making that determination through policy under Section 82 of the Act.

2. The Act
Section 82(1):

The board of directors must

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

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

Section 111(1):

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

Section 111(2):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 113(1):

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

POLICY

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

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

The President/Chief Executive Officer (CEO) has the authority to exercise the remaining powers and responsibilities described in Part 3 and authority over claims cost levies (section 73(1)). The President/CEO also has the authority to assign these powers and responsibilities to divisions, departments, categories of officers or individual officers of the Workers' Compensation Board.

President/CEO assignments will state whether the assignee has the authority to further assign the power or responsibility or whether it must be exercised personally.

The powers and responsibilities described in Part 3 and section 73(1) must be exercised in accordance with the policies of the Board of Directors.

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

PRACTICE

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

EFFECTIVE DATE:	March 24, 2010
AUTHORITY:	ss. 82, 111, and 113(1), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998 , effective October 1, 1999. References to Panel of Administrators replaced by references to Board of Directors, on February 11, 2003, to reflect the Workers Compensation Amendment Act, 2002. Consequential changes subsequently made to restatement of section 113(1) to implement the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Amended March 24, 2010 to address authority over claims cost levies and make other minor wording changes.
APPLICATION:

Policy Item D2-111-3
RE: Board Approval

BACKGROUND

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

2. The Act
Section 111(1):

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

Section 111(2), in part:

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

...

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

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

POLICY

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

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

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

An acceptance, as described above, is not a general endorsement or certification by the Board of that program, product, machinery, equipment, or work process.

EFFECTIVE DATE:	December 15, 2011
AUTHORITY:	s.111(1) and (2)(c) and (d), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Policy amended December 15, 2011 to remove the introductory sentence and amend the concluding paragraph. Housekeeping changes effective September 15, 2010 to remove reference to the Prevention Division, delete practice reference and make formatting changes. Replaces Policy No. 1.2.1 of the Prevention Division Policy and Procedure Manual
APPLICATION:	This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item continues the substantive requirements of Policy No. 1.2.1, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.1 was issued.

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

BACKGROUND

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

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

2. The Act

Section 113(2) to (2.3):

113(2)

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

113(2.1)

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

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

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

113(2.2)

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

113(2.3)

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

Section 189:

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

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

POLICY

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

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

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

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

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

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

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

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

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

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

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

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

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

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s.113, Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation Amendment Act (No. 2), 2002, effective March 3, 2003.
APPLICATION:

Policies Workers Compensation Act Division 3 General Duties of Employers, Workers and Others

Policy Item D3-115-1
RE: Employer Duty Towards Other Workers - Section 115(1)(a)(ii)

BACKGROUND

1. Preamble

A purpose of Part 3 of the Act is "to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party's authority and ability to do so."¹

Section 115(1)(a)(ii) reflects that purpose and ultimately requires an employer to ask "Have I done all that I can reasonably do to ensure the health and safety of those other workers?"

This policy is to assist decision makers by providing a consistent approach to interpretation. The policy provides principles to guide decision makers since it is not possible to address every potential workplace arrangement.

Historically, interpretation of section 115(1)(a)(ii) has focused primarily on whether or not the duty applies in a particular situation. This policy simplifies that determination by adopting a broad interpretation as to when the duty applies. This policy then provides practical criteria to determine what the duty means in practice (the scope of the duty).

Footnote¹ Section 107(2)(e) of the Act

2. Explanatory Notes

This policy addresses an employer's duty towards other workers as set out in section 115(1)(a)(ii) of the Act. This states that an employer must ensure the health and safety of other workers present at a workplace at which that employer's work is being carried out.

That duty co-exists with the duty that the direct employer and other employers may have towards those workers. In addition, employers may also have distinct duties towards other workers as set out in sections 118, 119 and 120 of the Act and various sections of the regulation.

3. The Act and Occupational Health and Safety Regulation ("OHSR")

Section 115(1)(a), Act - General duties of employers

(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....

The Appendix to this policy contains other related sections of the Act and OHSR.

POLICY

Section 115(1)(a)(ii) gives every employer the duty to ensure the health and safety of any other workers present at a workplace at which that employer's work is being carried out.

Definition

"other workers" refers to workers other than those of the employer. This includes workers of other employers as well as persons deemed to be workers through signing up for Personal Optional Protection (POP).

When Does The Duty Apply?

The duty applies whenever other workers are present at a workplace at which that employer's work is being carried out.

The employer's work can be carried out in one of two ways:

(a) other workers are present at a workplace where the employer's workers are working, or

(b) other workers are doing work for the employer's benefit.

What Does the Duty Require? (Scope of the Duty)

Once the duty applies, section 115(1)(a)(ii) requires an employer to take all reasonable steps in the circumstances to ensure the health and safety of the other workers. Some of those reasonable steps are set out below in items 1 to 3. In each case, the following three factors below (A to C) will affect what must be done:

A. the employer's degree of control,

B. the employer's level of expertise in the work being performed, and

C. the extent to which the employer is aware or ought to be aware of what is occurring in the workplace.

These reasonable steps for the employer include the following:

Making reasonable inquiries prior to a firm doing work on the employer's behalf;
(a) The employer's expertise in the area may affect the extent of inquiries:

(i) to determine whether the firm is capable of safely doing the work; and

(ii) about the firm's plans to safely conduct the work.
Preventing unsafe conditions or work that may affect the other workers and addressing those that arise; and
(a) The extent to which the employer is aware or ought to be aware of the unsafe conditions or work may affect what must be done.

The employer's familiarity with the worksite may affect the ability to identify unsafe conditions or work.

(b) The employer's level of expertise may affect the ability to identify the unsafe conditions or work.

For example, a roofing firm subcontracting to another, will have a good understanding of when fall protection is required. A manufacturing employer that engages a roofing contractor to service its plant may not.

(c) The employer's degree of control over the other workers or the site, may affect:

(i) the processes implemented to address safety compliance; and

Where the employer exercises a high degree of control relating to a particular function or activity, the employer will have a higher level of responsibility relating to that activity. This could include stopping the work, if necessary.

(ii) the employer's response to unsafe conditions or work.

Where there is no control, the duty may be satisfied by reporting the situation to a supervisor of the other workers.

As with item (i) above, where the employer exercises a high degree of control relating to a particular function or activity, the employer will have a higher level of responsibility relating to that activity. This could include stopping the work, if necessary.
Ensuring that the employer's workers do not put the other workers at risk.
The employer must address any aspects of the employer's work that could create a hazard for other workers. This would include workers coming on to the site after the work day. For example, security guards patrolling in the evening risk injury if hazards are left at the end of the work day.

PRACTICE

The following scenarios provide basic examples of the application of the policy for illustration purposes. More than one scenario may apply to some cases.

The scenarios are not policy. Where they conflict with the policy or are less comprehensive than the policy, the policy should be relied upon.

Scenarios

(1) An employer brings in a sub-contractor to the employer's fixed workplace.

In this case, the employer will generally have greater awareness of the site hazards, physical control over the site and the ability to affect all employers in the workplace. The employer will have contractual control over the subcontractor as well as physical control over the worksite.

The employer must make reasonable inquiries to determine that the subcontractor is able to safely perform the work.
- This could involve questions for the subcontractor as well as checking references.
The employer must make reasonable inquiries about the subcontractor's plan to safely conduct the work.
- This would involve questions for the subcontractor, the extent of which would depend on the employer's level of expertise in the type of work performed by the subcontractor.
The employer must provide information about hazards and preserve and maintain the safety of the workplace (see also section 119 of the Act).
The employer must ensure that its activities do not endanger the other workers, including workers who may be involved in work after hours or following completion of the employer's work.
Where these are known to the employer, unsafe acts by other workers must be reported to their supervisor (see also OSHR 3.10).
The employer must exercise its authority to stop work by the other workers in the case of significant hazards or where reports of unsafe acts or conditions are not being acted upon.

(2) An employer hires a subcontractor to do work at a third party's workplace, where a third party maintains overall control of the workplace. The employer is not given any level of authority over the workplace.

In this case, the employer will have the same responsibilities over the subcontractor as in scenario (1) with the exception that the employer will not have control over physical aspects of the workplace.

(3) An employer has control over the subcontractor and the workplace but is not on site or only briefly attending the workplace.

In this case, the employer will have the same responsibilities over the subcontractor as in scenario (1), however, the employer will have less awareness of what is occurring at the workplace.

(4) An employer is a franchisor.

The employer's responsibility will depend on the degree of control it exercises over the franchisee's operation and facilities, the extent of awareness and degree of expertise it has about the operations.
When the employer exercises significant control over the franchisee's facility in a manner that affects health and safety, the employer will have a greater obligation to take steps to protect the other workers.

(5) An employer is present at a workplace but does not have control over other employers or over the workplace. (For example, the employer's workers work along with other workers at a shared site owned and controlled by a third party.)

The employer's activities must not endanger other workers.
Where these are known to the employer, unsafe acts by other workers must be reported to their supervisor (see also OSHR 3.10).
Unsafe acts or conditions which are not remedied after an initial report must be pursued through the workplace hierarchy or reported to WorkSafeBC.

APPENDIX

1. Additional Act and OHSR Provisions

Section 107, Act - Purposes of Part 3

(1) The purpose of this Part is to benefit all citizens of British Columbia by promoting occupational health and safety and protecting workers and other persons present at workplaces from work related risks to their health and safety.

(2) Without limiting subsection (1), the specific purposes of this Part are

(a) to promote a culture of commitment on the part of employers and workers to a high standard of occupational health and safety,

(b) to prevent work related accidents, injuries and illnesses,

(d) to ensure an occupational environment that provides for the health and safety of workers and others,

(e) to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party's authority and ability to do so,

(f) to foster cooperative and consultative relationships between employers, workers and others regarding occupational health and safety, and to promote worker participation in occupational health and safety programs and occupational health and safety processes, and

(g) to minimize the social and economic costs of work related accidents, injuries and illnesses, in order to enhance the quality of life for British Columbians and the competitiveness of British Columbia in the Canadian and world economies.

Section 115, Act - General duties of employers

(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.

(2) Without limiting subsection (1), an employer must

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

(b) ensure that the employer's workers

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

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

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

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

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

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

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

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

Section 124, Act - Responsibility when obligations apply to more than one person

(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

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

Section 3.10, OHSR - Reporting unsafe conditions

Whenever a person observes what appears to be an unsafe or harmful condition or act the person must report it as soon as possible to a supervisor or to the employer, and the person receiving the report must investigate the reported unsafe condition or act and must ensure that any necessary corrective action is taken without delay.

EFFECTIVE DATE:	May 1, 2013
AUTHORITY:	s. 115(1)(a)(ii), Workers Compensation Act
CROSS REFERENCES:	Section 107, 124, Workers Compensation Act Section 3.10, Occupational Health and Safety Regulation)
HISTORY:
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 116(1):

Every worker must

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

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

Section 116(2):

Without limiting subsection (1), a worker must

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

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

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

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

(e) report to the supervisor or employer

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

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

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

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

POLICY

There is no POLICY for this Item.

PRACTICE

There is no PRACTICE for this Item.

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

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

BACKGROUND

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

2. The Act
Section 117(1):

Every supervisor must

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

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

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

Section 117(2):

Without limiting subsection (1), a supervisor must

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

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

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

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

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

POLICY

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

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

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.117, Workers Compensation Act
CROSS REFERENCES:	See also Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 118(1):

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

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

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

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

Section 118(2):

The prime contractor of a multiple-employer workplace must

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

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

Section 118(3):

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

POLICY

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

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

It does not matter whether:

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

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

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

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

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

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

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

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

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

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.118, Workers Compensation Act
CROSS REFERENCES:	See also Supervisors (Item D3-117-1), Owners (Item D3-119-1), Directors and Officers (Item D3-121-1), Overlapping Obligations (D3-123/124-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 106:

"owner" includes

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

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

Section 119:

Every owner of a workplace must

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

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

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

POLICY

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

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

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

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

1. The owner knew or should have known that:

Category 1: Knowledge

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

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

Category 2: Control

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

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

(i) the risk of the potential harm, or

(ii) the extent of the potential harm,

to persons at or near the workplace; or

(b) possessed material information and either:

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

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

EFFECTIVE DATE:	December 1, 2004
AUTHORITY:	s.119, Workers Compensation Act
CROSS REFERENCES:	See also sections 73(1) (Claims Cost Levy) and 111 (Board's mandate under this Part) of the Act; Part 3, Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences) of the Act; Policies in the Prevention Manual in Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. On December 1, 2004, provisions of the Act with respect to multiple owner situations were clarified, and the list of factors which Board officers consider before holding an owner responsible for a compliance issue were rewritten in a more directive manner.
APPLICATION:	To all situations in which an owner has responsibilities under section 119 of the Act on or after December 1, 2004.

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

BACKGROUND

1. Explanatory Notes

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

2. The Act
Section 121:

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

Section 213:

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

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

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

POLICY

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

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

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	ss.121 and 213, Workers Compensation Act
CROSS REFERENCES:	See also Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Overlapping Obligations (D3-123/124-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 123:

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

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

Section 124:

If

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

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

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

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

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

POLICY

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

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

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

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

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

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

EFFECTIVE DATE:	December 1, 2004
AUTHORITY:	ss.123 and 124, Workers Compensation Act
CROSS REFERENCES:	See also sections 73(1) (Claims Cost Levy) and 111 (Board's mandate under this Part) of the Act ; Part 3, Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement), and 15 (Offences) of the Act ; Policies in the Prevention Manual in Divisions 3 (General Duties of Employers, Workers and Others), 12 (Enforcement)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. On December 1, 2004, provisions of the Act with respect to overlapping obligations were clarified.
APPLICATION:	To all situations in which more than one party shares the same obligations under Part 3 of the Act or the regulations on or after December 1, 2004.

Policies Workers Compensation Act Division 4 Joint Committees and Worker Representatives

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

BACKGROUND

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

2. The Act
Section 125:

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

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

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

Section 127:

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

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

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

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

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

POLICY

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

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

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

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

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

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

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

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.125, Workers Compensation Act
CROSS REFERENCES:	See also Joint Committees - Worker Health and Safety Representatives (Item D4-139-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

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

BACKGROUND

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

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

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

2. The Act
Section 128:

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

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

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

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

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

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

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

Section 131:

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

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

Section 132:

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

Section 133:

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

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

(a) indicating acceptance of the recommendation, or

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

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

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

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

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

POLICY

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

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

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

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

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

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

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	ss.128, 131, 132 and 133; Workers Compensation Act
CROSS REFERENCES:	See also Joint Committees - Time off Work (Item D4-134-1), Educational Leave (Item D4-135-1), Employer Must Post Committee Information (Item D4-138-1), Worker Health and Safety Representative (Item D4-139-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 134:

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

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

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

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

POLICY

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

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

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

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

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

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

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

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.134, Workers Compensation Act
CROSS REFERENCES:	See also s. 154, Workers Compensation Act; Joint Committees - Procedures and Resolving Disagreements (Item D4-132/133-1) and Discriminatory Actions/Failure to Pay Wages - Scope (Item D6-150/151/152-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

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

BACKGROUND

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

2. The Act
Section 135:

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

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

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

POLICY

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

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

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

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

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

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

EFFECTIVE DATE:	July 1, 2003
AUTHORITY:	s.135, Workers Compensation Act
CROSS REFERENCES:	See also s. 152, Workers Compensation Act; Joint Committees - Procedures and Resolving Disagreements (Item D4-132/133-1), Discriminatory Actions/Failure to Pay Wages - Investigation of Complaint (Item D6-153-1) and Orders - General Authority (Item D12-187-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Act, 1998, effective October 1, 1999. Effective July 1, 2003 subsequent minor change made to correct an error in statutory citation; section 133(3) was removed and replaced with section 133.
APPLICATION:

Policy Item D4-140-1
RE: Joint Committees - Participation of Worker Representative in Inspections

BACKGROUND

1. Explanatory Notes
These sections provide for the participation of a worker member from the joint committee, the worker health and safety representative or another worker representative on inspections.

2. The Act
Section 140:

If

(a) this Part or the regulations give a worker representative the right to be present for an inspection, investigation or inquiry at a workplace, and

(b) no worker representative is reasonably available,

the right may be exercised by another worker who has previously been designated as an alternate by the worker representative.

Section 182(1)(b):

(1) Subject to this section, if an officer makes a physical inspection of a workplace under section 179,

(a) the employer or a representative of the employer, and

(b) a worker representative or, if there is no worker representative or the worker representative is not reasonably available, a reasonably available worker selected by the officer as a representative,

are entitled to accompany the officer on the inspection.

Section 106:

"worker representative" means

(a) in relation to a workplace for which there is a joint committee, a worker representative on the committee, and

(b) in relation to a workplace for which there is a worker health and safety representative, that representative

POLICY

There is no POLICY for this Item.

PRACTICE

The officer will only exercise the authority under section 182 to select a worker representative if the actual worker representative fails to designate an alternate under section 140 or if the designated alternative is not available.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.140, 182, Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policies Workers Compensation Act Division 6 Prohibition Against Discriminatory Action

Policy Item D6-150/151/152-1
RE: Discriminatory Actions/ Failure to Pay Wages - Scope

BACKGROUND

1. Explanatory Notes
Workers have a right to complain to the Board regarding:

"discriminatory action" by their employer or union; or
the failure by their employer to pay wages required by Part 3 or the regulations.

"Discriminatory action" includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.

The Act defines "discriminatory action" by including within it certain matters. The phrase could also include other matters that normally fall within the meaning of "discrimination". However, the Act only provides rights for a worker when the "discriminatory action" relates to the matters outlined in section 151.

Section 152 describes how a worker, who considers that the worker's employer or union has taken, or threatened to take, discriminatory action against the worker or has failed to pay the wages required by Part 3 or the regulations, may make a complaint to the Board. It includes the time limits within which the complaint must be made.

2. The Act
Section 150:

(1) For the purposes of this Division, "discriminatory action" includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union.

(2) Without restricting subsection (1), discriminatory action includes

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of workplace, reduction in wages or change in working hours,

(d) coercion or intimidation,

(e) imposition of any discipline, reprimand or other penalty, and

(f) the discontinuation or elimination of the job of the worker.

Section 151:

An employer or union, or a person acting on behalf of an employer or union, must not take or threaten discriminatory action against a worker

(a) for exercising any right or carrying out any duty in accordance with this Part, the regulations or an applicable order,

(b) for the reason that the worker has testified or is about to testify in any matter, inquiry or proceeding under this Act or the Coroners Act on an issue related to occupational health and safety or occupational environment, or

(c) for the reason that the worker has given any information regarding conditions affecting the occupational health or safety or occupational environment of that worker or any other worker to

(i) an employer or person acting on behalf of an employer,

(ii) another worker or a union representing a worker, or

(iii) an officer or any other person concerned with the administration of this Part.

Section 152:

(1) A worker who considers that

(a) an employer or union, or a person acting on behalf of an employer or union, has taken, or threatened to take, discriminatory action against the worker contrary to section 151, or

(b) an employer has failed to pay wages to the worker as required by this Part or the regulations

may have the matter dealt with through the grievance procedure under a collective agreement, if any, or by complaint in accordance with this Division.

(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.

(3) In dealing with a matter referred to in subsection (1), whether under a collective agreement or by complaint to the Board, the burden of proving that there has been no such contravention is on the employer or the union, as applicable.

POLICY

Section 152 applies to a failure of the employer to pay wages to the worker as required by the Part.

Some sections do not use the term "wages", but require the worker to be paid for lost time, notably:

134(2) (time off work by members of joint committees);
135(3) (educational leave for committee members - section 152 only applies to the payment of wages, not other costs such as travel expenses);
182(4) (worker accompanying inspection); and
192(1) (lay off resulting from stop work order).

As the payments under these sections are in substances "wages", a failure to pay them may be remedied by a complaint under section 152.

EFFECTIVE DATE:	July 1, 2003
AUTHORITY:	ss.150, 151, and 152 Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Act, 1998, effective October 1, 1999. Effective July 1, 2003 minor changes made to strike out references to sections 147 and 148, as these sections were never proclaimed into effect.
APPLICATION:

Policy Item D6-153-1
RE: Discriminatory Actions/ Failure to Pay Wages - Investigation of Complaint

BACKGROUND

1. Explanatory Notes
Upon receipt of a complaint, the Board must immediately inquire into the matter.

In dealing with a matter regarding discriminatory action, the burden of proving there has been no such contravention is on the employer or the union, as applicable.

2. The Act
Section 153(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.

POLICY

When the Board receives a complaint from a worker within the time frame allowed by section 152(2), the Board will, where further information is needed, carry out an initial inquiry to establish the basic facts alleged by the worker and to determine whether, if accurate, they fall within the terms of section 152. Inquiry will also be made as to what remedy the worker is seeking.

Copies of documents supplied by the worker, as well as the results of any Board inquiry, will be provided to the employer or union against whom the complaint is made. The employer or union will then be given time to meet its onus under section 152(3) of proving that no contravention of the Act or regulations took place and to comment on the remedy proposed by the worker. The worker will be provided with a copy of the Board's investigation as well as any response to the complaint by the employer or union, and given an opportunity to respond.

Further inquiries by the Board may then be made, as well as exchanges of submissions and information that may be required by the rules of natural justice. An oral hearing is not required, but may be held if the Board considers it necessary to properly decide a complaint.

The worker may withdraw a complaint at any time, settle the dispute privately with the employer or union, or pursue alternative remedies under a collective agreement.

The worker cannot pursue both a grievance under a collective agreement and a complaint to the Board regarding the same alleged discriminatory action or failure to pay wages. The worker is required to elect between the two processes.

If the worker elects to pursue a grievance under a collective agreement, but the union decides not to pursue the grievance, the worker may revoke his or her election within 30 days of the union's decision and pursue a complaint to the Board. The complaint must, however, still be made within one year of the action considered to be discriminatory or within 60 days after the wages became payable.

PRACTICE

The Board will consider granting an oral hearing when:

there is a significant issue of credibility;
there is evidence that must be presented orally;
the decision to be reviewed raises an issue of general significance; or
there are other grounds for having an oral hearing.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s.153(1), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to replace a reference to reviewing officer with the Board and make formatting changes.
APPLICATION:

Policy Item D6-153-2
RE: Discriminatory Actions/ Failure to Pay Wages - Remedies

BACKGROUND

1. Explanatory Notes
Section 153(2) sets out the remedies that the Board may order if the Board, after investigation, determines that there has been discriminatory action or a failure to pay wages.

2. The Act
Section 153(2):

If the board determines that the contravention occurred, the board may make an order requiring one or more of the following:

(a) that the employer or union cease the discriminatory action;

(b) that the employer reinstate the worker to his or her former employment under the same terms and conditions under which the worker was formerly employed;

(c) that the employer pay, by a specified date, the wages required to be paid by this Part or the regulations;

(d) that the union reinstate the membership of the worker in the union;

(e) that any reprimand or other references to the matter in the employer's or union's records on the worker be removed;

(f) that the employer or the union pay the reasonable out of pocket expenses incurred by the worker by reason of the discriminatory action;

(g) that the employer or the union do any other thing that the board considers necessary to secure compliance with this Part and the regulations.

POLICY

(a) Object of awarding remedies
The Board's object in exercising these powers is, as far as is practicable, to put the worker in the same position as the worker would have been if the discriminatory action or the failure to pay wages had not occurred. This may involve measuring not only the worker's actual loss, but determining whether there were any measures the worker could have reasonably taken to reduce or eliminate that loss.

(b) Factors considered in awarding remedies
The factors considered in determining the worker's loss include:

whether the worker has tried to eliminate or reduce the loss and, if the worker has not done so, whether it would have been reasonable for the worker to have tried;
any collateral benefits the worker has received from the employer (collateral benefits from a source other than the employer, such as employment insurance and private insurance benefits, are not to be considered); and
other circumstances affecting the worker's loss that arise independently of the worker's conduct after the discriminatory action or failure to pay wages has occurred, for example, the closure of the place of employment.

(c) Explanation of Specific Remedies

Reinstatement to employment
The Board may order reinstatement to employment retroactive to when the discriminatory action occurred.

Payment of wages
The Board may make orders with respect to payment of wages in a variety of circumstances. These include:

an order for reinstatement that requires the employer to pay back wages, reinstate benefits retroactively and perform other incidental acts. The authority to do this is found in section 153(2)(b);
an order that requires the employer to pay, by a specified date, the wages required to be paid under Part 3 or the regulations. The authority to do this is found in section 153(2)(c); and
an order that requires an employer to reimburse the loss of pay where the discriminatory action involved the employer reducing the worker's pay. The authority to do this is found in section 153(2)(g).

The wages, salaries and other employment benefits covered by these provisions are those falling within the definition of "wages" in the Employment Standards Act. This definition does not include every payment or benefit that workers receive as a result of their employment.

Expenses
The Board has discretion to order the employer or union to pay reasonable out-of-pocket expenses incurred by the worker by reason of the discriminatory action.

Since the Board carries out the initial inquiry that is necessary to establish the basic facts of the worker's complaint, the worker does not need to incur costs in making a complaint. If the worker feels that a particular inquiry is needed, he or she can request the Board to do this.

The employer or union will meet their own costs of proving that no contravention of the Act took place and responding to any material supplied by the Board or arising out of the Board's inquiry.

Where a complaint is upheld, the Board will not normally make orders that the employer or union pay legal or other costs incurred by the worker in order to pursue the complaint. Similarly, where the complaint is not upheld, the Board will not normally order the worker to pay the legal and other costs of the employer or union. Such orders may be made under section 100 of the Act in exceptional situations. These include where there has been flagrant abuse by the employer, worker or union of their rights and responsibilities under the Act and regulations.

(d) Other action by the employer or union
The Board's authority to award remedies under section 153(2) extends only to discriminatory action or failure to pay wages as defined by Division 6. It does not apply to other actions that may be taken by an employer or union.

(e) Other action by the Board
These remedies only apply when there has been a formal written complaint by the worker.

However, the Board may use its other enforcement powers, including an administrative penalty under section 196, to address discriminatory actions or failures to pay wages, whether there has been a formal written complaint or not.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s. 153(2), Workers Compensation Act
CROSS REFERENCES:	See also ss. 100, 106 (Definition of "wages"), Workers Compensation Act
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policies Workers Compensation Act Division 8 Miscellaneous Authority

Policy Item D8-160-1
RE: First Aid Equipment - Imposition of Special Rate of Assessment

BACKGROUND

1. Explanatory Notes
The Board may impose a special rate of assessment under Part 1 of the Act where an employer fails, neglects or refuses to install or maintain first aid equipment required by regulation or order.

2. The Act
Section 160:

If an employer fails, neglects or refuses to install or maintain first aid equipment or service required by regulation or order, the board may do one or more of the following:

(a) have the first aid equipment and service installed, in which case the cost of this is a debt owed by the employer to the board;

(b) impose a special rate of assessment under Part 1 of this Act;

(c) order the employer to immediately close down all or part of the workplace or work being done there until the employer complies with the applicable regulation or order.

POLICY

Where appropriate, the Board will apply the policies and practices set out in the following Items to the imposition of special rates of assessment for first aid equipment and service under section 160:

D12-196-1, -2, -3, -4, -6;
D12-196-8; and
D12-196-10, -11

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s. 160(b), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete reference to Policy D16-223.1, practice reference and make formatting changes. Effective December 31, 2003, references to two prior policies (Items D12-196-4 and D12-196-5) which no longer exist were deleted and a consequential housekeeping reference to a new policy Item D12-196-4 was added.
APPLICATION:

Policies Workers Compensation Act Division 9 Variance Orders

Policy Item D9-166-1
RE: Variance Orders - Information Required

BACKGROUND

1. Explanatory Notes
Section 166 sets out the information to be provided by an applicant for a variance. Section 166(3) requires the applicant to provide the technical and other information required by the Board.

2. The Act
Section 166:

(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 variance 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.

POLICY

In the case of an application under section 166(1), the "other information" required by the Board from an employer under section 166(3) will generally include:

the location of the workplace;
the type and nature of the work process;
the regulation(s) proposed for modification;
a description of the proposed procedure or practice that would provide an equivalent level of health and safety to that provided for by the regulation(s);
how workers will be trained and supervised; and
confirmation that:
- the variance application has been posted at the workplace, and a copy has been provided to the joint health and safety committee or the worker health and safety representative and to the union, if the workers at the workplace are represented by the 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.

EFFECTIVE DATE:	April 1, 2002
AUTHORITY:	s. 166, Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Replaces part of Policy No. 1.2.5 of the Prevention Division Policy and Procedure Manual
APPLICATION:	This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item merely continues the substantive requirements of Policy No. 1.2.5, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.5 was issued.

Policy Item D9-168-1
RE: Variance Orders - Consultation on Application

BACKGROUND

1. Explanatory Notes
Section 168 requires the Board to give notice of an application for a variance and conduct the consultations on the application that the Board considers advisable.

2. The Act
Section 168:

(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).

POLICY

The persons whom the Board will notify and consult respecting the application for a variance include:

the chairs of the joint health and safety committee or worker health and safety representative;
the union, if workers in the workplace are represented by the union; and
if there is no committee, worker health and safety representative or union at the workplace, a worker representative, if practicable.

The persons notified will be asked for comments, invited to participate in any hearing or other proceedings that may be held on the application, and advised of the decision.

EFFECTIVE DATE:	April 1, 2002
AUTHORITY:	s. 168, Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Replaces part of Policy No. 1.2.5 of the Prevention Division Policy and Procedure Manual
APPLICATION:	This Item results from the 2000/2001/2002 "editorial" consolidation of all Prevention policies into the Prevention Manual. The POLICY in this Item merely continues the substantive requirements of Policy No. 1.2.5, as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 1.2.5 was issued.

Policies Workers Compensation Act Division 10 Accident Reporting and Investigation

Policy Item D10-172-1
RE: Accident Reporting and Investigation - Immediate Notice of Certain Accidents (Major Release of Hazardous Substance)

BACKGROUND

1. Explanatory Notes
Section 172(1) sets out the situations where the employer must immediately notify the Board of the occurrence of any accident.

2. The Act
Section 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.

POLICY

Section 172(1)(c) requires the employer to notify the Board of any accident that involved the major release of a hazardous substance.

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.

As a general guideline, a report would be expected when:

The incident resulted in an injury that required immediate medical attention beyond the level of service provided by a first aid attendant, or injuries to several workers that require first aid.
The incident resulted in a situation of continuing danger to workers, such as when the release of a chemical cannot be readily or quickly cleaned up.

EFFECTIVE DATE:	April 1, 2001
AUTHORITY:	s.172(1), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Replaces Policy No. 6.02(c) of the Prevention Division Policy and Procedure Manual
APPLICATION:	This Item results from the 2000/2001 "editorial" consolidation of all prevention policies into the Prevention Manual. The POLICY in this Item merely continues the substantive requirements of Policy No. 6.02(c), as they existed prior to the Effective Date, with any wording changes necessary to reflect legislative and regulatory changes since Policy No. 6.02(c) was issued.

Policies Workers Compensation Act Division 12 Enforcement

Policy Item D12-187-1
RE: OHS Compliance Orders

BACKGROUND

1. Explanatory Notes

Section 187(1) provides a broad general authority for the Board to make orders for carrying out matters and things regulated, controlled or required by Part 3 or the regulations. This includes authority to make orders in a variety of specific situations set out in section 187(2).

This policy addresses orders directed towards remedying an occupational health and safety ("OHS") violation. An OHS compliance order is WorkSafeBC's primary tool to remedy non-compliance with health and safety requirements in the Act and Regulation.

Powers to make orders are also found in other sections of the Act. For example, section 196 provides that administrative penalties may be imposed by order. This policy does not address those types of orders.

Failure to comply with an order may be addressed by administrative penalties, injunctions, or prosecution.

2. The Act
Section 187:

(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.

Section 188:

(1) An order may be made orally or in writing but, if it is made orally, must be confirmed in writing as soon as is reasonably practicable.

(2) An order may be made applicable to any person or category of persons and may include terms and conditions the Board considers appropriate.

(3) If an order relates to a complaint made by a person to the Board or an officer, a copy of the order must be given to that person.

(4) An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.

3. The Regulation
Section 2.4:

Every person to whom an order or directive is issued by the Board must comply promptly or by the time set out in the order or directive.

POLICY

Workplace parties must comply with the Act and OHSR. An OHS Compliance order does not initiate the obligation to comply with the Act and regulations. It is not sufficient simply to obey a WorkSafeBC order after a violation, injury or disease has occurred.

When identifying violations at a workplace, WorkSafeBC will ordinarily write orders.

When a particular safety issue involves more than one employer or worker, WorkSafeBC will determine which workplace parties should be the recipients of orders.

In some cases, where there are a number of violations, WorkSafeBC may write orders to address the underlying health and safety issues without writing an order relating to each violation.

PRACTICE

When WorkSafeBC identifies a violation but does not write an order, the circumstances should be documented in the inspection notes of the inspection report and the relevant regulations referenced for future tracking.

EFFECTIVE DATE:	March 1, 2013
AUTHORITY:	s. 187, Workers Compensation Act
CROSS REFERENCES:	s. 188, Workers Compensation Act, s. 2.4 Regulation
HISTORY:	Amended effective March 1, 2013 to confirm WorkSafeBC's discretion regarding writing orders and to align policy with the practice of WorkSafeBC. Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the restatement of section 187 to reflect the Workers Compensation Amendment Act, 2002 and to the Explanatory Notes and the cross-references to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective December 31, 2003, this policy incorporates portions of Procedure No. 1.3.3-1 "Issuing Inspection Reports" of the former Prevention Division Policy and Procedure Manual.
APPLICATION:

Policy Item D12-188-1
RE: Orders - Contents and Process

BACKGROUND

1. Explanatory Notes

Section 188sets out the contents and process requirements in relation to orders. Subject to the terms of the relevant sections, these requirements apply to all the powers to issue orders under Part 3. They are not limited to orders issued under the Board's general authority in section 187.

2. The Act

Section 188:

(1) An order may be made orally or in writing but, if it is made orally, must be confirmed in writing as soon as is reasonably practicable.

(2) An order may be made applicable to any person or category of persons and may include terms and conditions the board considers appropriate.

(3) If an order relates to a complaint made by a person to the board or an officer, a copy of the order must be given to that person.

(4) An officer of the board may exercise the authority of the board to make orders under this Part, subject to any restrictions or conditions established by the board.

POLICY

After an inspection, the Board officer must complete a report, but its completion may be deferred until any required investigation is completed. This report may contain one or more orders, or no orders, depending on whether violations of the regulations were observed and the number and type of any observed violations. If an officer has observed no violations, this will be stated in the report.

Where possible, the officer will hold a post-inspection conference with management having responsibility and authority to comply with the orders.

The worker representative who accompanied the inspection will be invited to the conference. If the worker representative normally designated for this purpose has been unable to attend the inspection, the designated worker representative will be invited as well, if now available. Other parties involved may also be invited at the discretion of the officer. The purpose of the conference is to ensure that the parties understand the orders.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s. 188, Workers Compensation Act
CROSS REFERENCES:	s. 187, Workers Compensation Act
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D12-191-1
RE: Orders - To Stop Work

BACKGROUND

1. Explanatory Notes

Section 191(1) sets out circumstances in which the Board may issue an order to stop work at a workplace.

2. The Act

Section 191:

(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.

POLICY

Whether there are reasonable grounds for making an order under section 191(1) is a matter of fact in each case.

In considering whether there are reasonable grounds for an initial order, 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. To avoid a potential for immediate danger, an officer might need to make a decision on the spot without doing the full inquiries that might be otherwise desirable.

If the Board wishes to confirm the order under section 191(4) beyond the initial 72-hour period, it may make additional inquiries. New information might be received that affects the decision as to whether there are reasonable grounds.

An order may be rescinded before the expiry of the initial 72-hour period if the employer's actions support it.

EFFECTIVE DATE:	October 1, 1999
AUTHORITY:	s. 191, Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes.
APPLICATION:

Policy Item D12-195-1
RE: Orders - Cancellation and Suspension of Certificates

BACKGROUND

1. Explanatory Notes

Section 195(1) sets out circumstances in which the Board may cancel or suspend a certificate, or place conditions upon the use of a certificate issued under Part 3 or the regulations.

2. The Act

Section 195:

(1) If the Board has reasonable grounds for believing that a person who holds a certificate issued under this Part or the regulations has breached a term or condition of the certificate or has otherwise contravened a provision of this Part or the regulations, the Board may, by order,

(a) cancel or suspend the certificate, or

(b) place a condition on the use of that certificate that the Board considers is necessary in the circumstances.

(2) An order under this section suspending a certificate must specify the length of time that the suspension is in effect or the condition that must be met before the suspension is no longer in effect.

POLICY

Section 195 applies to certificates issued by the Board to qualify persons to do a particular job, including:

certificates issued to first aid attendants and instructors under section 159;
certificates issued to blasters and instructors under section 163; and
any similar certificate issued by the Board under Part 3 or the regulations.

The section also applies to such certificates issued on behalf of the Board by another person, such as a training agency, under an arrangement with the Board.

(a) First Aid Certificates

A first aid certificate issued to a first aid attendant may be suspended, cancelled or have conditions placed upon its use where the first aid attendant engages in inappropriate conduct, including:

smoking while assessing or treating an injured worker and/or while handling oxygen therapy equipment, or permitting others to do so;
failure to use the assessment and injury treatment techniques outlined in first aid training courses unless conditions precluded them;
conduct that poses an unreasonable threat to the safety and well-being of other workers or the public;
removing themselves from being able to see or hear any summons for first aid at a workplace;
abandonment of an injured worker after beginning assessment or treatment;
refusal to treat an injured worker when acting as a designated first aid attendant; or
treating or transporting an injured worker while impaired or under the influence of drugs or alcohol.

EFFECTIVE DATE:	March 30, 2004
AUTHORITY:	s. 195, Workers Compensation Act
CROSS REFERENCES:	ss. 159, 163, Workers Compensation Act
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Policy revised to incorporate the parts of Policy No. 80.27 of the former Prevention Division Policy and Procedure Manual relating to circumstances when the WCB may suspend, cancel or place conditions on the certificate of a first aid attendant, effective March 30, 2004.
APPLICATION:	This policy applies to events occurring on or after March 30, 2004 that leads to the consideration of a suspension, cancellation or placement of a condition on certificates issued under Part 3 of the Act, or the regulations.

Policy Item D12-196-1
RE: Administrative Penalties - Criteria for Imposing

BACKGROUND

1. Explanatory Notes

Section 196(1) sets out the criteria for imposing an administrative penalty.

An administrative penalty must not be imposed if the employer exercised "due diligence" to prevent the failure, non-compliance or conditions to which the penalty relates. Item D12-196-10 sets out more information with respect to "due diligence".

2. The Act

Section 196(1):

The Board may, by order, impose an administrative penalty on an employer under this section if it considers that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

POLICY

The main purpose of administrative penalties and similar levies is to motivate the employer receiving the penalty and other employers to comply with the Act and regulations.

The Board will consider imposing an administrative penalty when:

an employer is found to have committed a violation resulting in high risk of serious injury, serious illness or death;
an employer is found in violation of the same section of Part 3 or the regulations on more than one occasion. This includes where, though a different section is cited, the violation is essentially the same;
an employer is found in violation of different sections of Part 3 or the regulations on more than one occasion, where the number of violations indicates a general lack of commitment to compliance;
an employer has failed to comply with a previous order within a reasonable time;
an employer knowingly or with reckless disregard violates one or more sections of Part 3 or the regulations. Reckless disregard includes where a violation results from ignorance of the Act or regulations due to a refusal to read them or take other steps to find out an employer's obligations; or
the Board considers that the circumstances may warrant an administrative penalty.

If violations or other circumstances requiring consideration of a penalty have occurred, the following additional factors will also be considered in deciding whether to propose or to levy the penalty:

whether the employer has an effective, overall program for complying with the Act and the regulations;
whether the employer has otherwise exercised due diligence to prevent the failure, non-compliance or conditions to which the penalty relates;
whether the violations or other circumstances have resulted from the independent action of workers who have been properly instructed, trained and supervised;
the potential seriousness of the injury or illness that might have occurred, the number of people who might have been at risk and the likelihood of the injury or illness occurring;
the past compliance history of the employer, including the nature, number and frequency of violations, and the occurrence of repeat violations;
the extent to which the employer was aware or should have been aware of the hazard or that the Act or regulations were being violated;
the need to provide an incentive for the employer to comply;
whether an alternative means of enforcing the regulations would be more effective; and
other relevant circumstances.

EFFECTIVE DATE:	October 29, 2003
AUTHORITY:	s. 196(1), Workers Compensation Act
CROSS REFERENCES:	See also Administrative Penalties - High Risk Violations (Item D12-196-2), Prior Violations and Orders (Item D12-196-3); Authority to Impose Administrative Penalties (Item D12-196-4), and Due Diligence (Item D12-196-10 and s. 196(6) of the Workers Compensation Act)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. This Item was originally developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes were subsequently made to the restatement of section 196 to reflect the Workers Compensation Amendment Act, 2002 and to the Explanatory Notes, the restatement of section 196 and the cross-references to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective July 1, 2003, a minor change was made to the second bullet of the policy, for congruency with Items D12-196-3 and D12-196-6. Effective October 29, 2003, an example in the policy that referenced section 20.11 of the Occupational Health and Safety Regulation was deleted to reflect the repeal of that section.
APPLICATION:	This policy applies to all decisions to impose administrative penalties on and after October 29, 2003.

Policy Item D12-196-2
RE: Administrative Penalties - High Risk Violations

BACKGROUND

1. Explanatory Notes

The criteria set out in Item D12-196-1 require consideration of whether a violation involves high risk of serious injury, serious illness or death.

2. The Act

See D12-196-1.

POLICY

Whether a violation involves high risk of serious injury, serious illness, or death will be determined in each case on the basis of the available evidence concerning:

the likelihood of an injury, illness or death occurring;
the number of workers affected; and
the likely seriousness of any injury or illness.

Violations on the list set out below are assumed to be high risk in the absence of evidence showing the contrary:

Working in an excavation over four feet deep without adequately supporting or sloping the sides of the excavation or adopting other safeguards allowed by the regulations.
Working within the specified minimum distances from unguarded overhead energized high voltage electrical conductors without complying with the requirements of the regulations.
Working on equipment that is not locked-out when required.
Permitting workers to be exposed to situations or conditions that are immediately dangerous to life or health.
Permitting inadequately protected workers to be exposed to conditions that are likely to cause a chronic health effect.
When operating mobile equipment:

(a) failing to have rollover protective structures (ROPS) on equipment where required by the regulations,

(b) failing to install or use seat belts where required by regulation.
Failing to fell all dangerous trees as required by the regulations.
Using domino falling procedures.
Leaving cut-up trees.
Failing to take appropriate measures to control the fall of trees, for example, not leaving sufficient holding wood, carelessly cutting off corners of holding wood, not placing the backcut higher than the undercut, failing to use wedges or failing to have wedging equipment immediately available.
Permitting workers, other than the faller and other persons permitted by the regulations, to be within the minimum distance of two tree lengths of the tree being felled.

Even though a violation is not on the list, an administrative penalty may be considered on the basis that the evidence in that case shows the violation posed a high risk to workers.

EFFECTIVE DATE:	July 1, 2003
AUTHORITY:	s. 196(1), Workers Compensation Act
CROSS REFERENCES:	See also Administrative Penalties - Criteria for Imposing (D12-196-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Act, effective October 1, 1999. Effective July 1, 2003, at number 7 of the policy, the term "snags" was removed, and replaced with "dangerous trees".
APPLICATION:	Policy change effective July 1, 2003 applies to all orders, including orders imposing administrative penalties under section 196, issued on or after July 1, 2003.

Policy Item D12-196-3
RE: Administrative Penalties - Prior Violations and Orders

BACKGROUND

1. Explanatory Notes

The criteria set out in Item D12-196-1 require consideration of whether a prior violation or order should be considered in deciding to impose an administrative penalty on an employer following a later violation or order.

2. The Act

See D12-196-1.

POLICY

The Board will consider imposing an administrative penalty when an employer is found in violation of the same section on more than one occasion. This includes where, though a different section is cited, the violation is essentially the same.

Violations at one of several locations of a firm will normally be considered as though that location were the firm's only location. Violations at more than one location may be considered together if they result from a failure of the firm's overall program of compliance with the Act and regulations. This would include failure to:

effectively communicate with all locations regarding health and safety concerns;
provide adequate training to managers and others who implement site health and safety programs;
make local management accountable for health and safety performance; and
provide local management with sufficient resources for health and safety issues.

A business may be sold or reorganized between two occurrences of violations. Item AP1-42-3 of the Assessment Manual sets out guidelines for the Board's decision on whether a new experience rating position will be assigned to the reorganized business.

For the purpose of an administrative penalty, the prior violations are treated as part of the firm's history, where the same experience rating position is assigned to the new firm.

EFFECTIVE DATE:	October 29, 2003
AUTHORITY:	s. 196(1), Workers Compensation Act
CROSS REFERENCES:	See also Administrative Penalties - Criteria for Imposing (D12-196-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Effective March 18, 2003, references to policy items in the former Assessment Policy Manual were replaced with references to policy items in the Assessment Manual. Effective October 29, 2003, an example referencing section 20.11 of the Occupational Health and Safety Regulation in the policy was deleted to reflect the repeal of that section.
APPLICATION:	This policy applies to all decisions to impose administrative penalties on and after October 29, 2003.

Policy Item D12-196-4
RE: Administrative Penalties - Authority to Impose

BACKGROUND

1. Explanatory Notes

This policy sets out the non-exclusive ways in which the Board may impose financial penalties if an employer does not comply with the occupational health and safety requirements in the Act and regulations.

2. The Act

Section 73(1):

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

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

(i) the gross negligence of an employer,

(ii) the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases, or

(iii) the failure of an employer to comply with the orders or directions of the Board, or with the regulations made under Part 3 of this Act,

the Board may levy and collect from that employer as a contribution to the accident fund all or part of the amount of the compensation payable in respect of the injury, death or occupational disease, to a maximum of $44,468.66.

Section 160(b):

160
If an employer fails, neglects or refuses to install or maintain first aid equipment or service required by regulation or order, the Board may do one or more of the following:

(b) impose a special rate of assessment under Part 1 of this Act.

Section 196(1):

The Board may, by order, impose an administrative penalty on an employer under this section if it considers that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

POLICY

The Board has authority under the Act to:

impose an administrative penalty under section 196(1),
levy and collect a contribution from an employer under section 73(1), and
impose a special rate of assessment under section 160(b).

EFFECTIVE DATE:	March 24, 2010
AUTHORITY:
CROSS REFERENCES:	See also Assignment of Authority (Item D2-111-1), Administrative Penalties - Criteria for Imposing (Item D12-196-1), Imposing of Levies - Charging of Claims Costs (Item D24-73-1), and First Aid Equipment - Imposing of Special Rate of Assessment (Item D8-160-1).
HISTORY:	This policy incorporates portions of, and replaces, Policy No. 1.4.2 "Penalty Assessments and Levies" of the former Prevention Division Policy and Procedure Manual. Amended March 24, 2010 to delete the reference to the Vice-President, Prevention Division, make minor wording changes and add a cross-reference to Policy D2-111-1 which has been amended to address authority over claims cost levies.
APPLICATION:

Policy Item D12-196-6
RE: Administrative Penalties - Amount of Penalty

BACKGROUND

1. Explanatory Notes

The Board is authorized to impose administrative penalties on employers for failure to comply with Part 3 of the Act and the regulations, and under certain other conditions. Section 196(3) provides that the Board must not impose an administrative penalty where the employer exercised due diligence. Section 196(2) provides that the Board must not impose an administrative penalty greater than $603,347.68. Commencing January 1, 2004, this maximum is subject to adjustment under section 25.2 of the Act on January 1 of each year.

The Act does not specify the amount of an administrative penalty that may be imposed in particular situations.

2. The Act

Section 196(2):

An administrative penalty which is greater than $603,347.68 must not be imposed under this section.

POLICY

Amounts of administrative penalties will be determined under this POLICY. No administrative penalty will be levied where the employer exercised due diligence to prevent the failure, non-compliance or conditions to which the penalty relates.

1. "Basic amount" of the penalty
(a) Tables for determining "basic amounts"

The following tables contain the guidelines used by the Board in determining the "basic amount" of an administrative penalty.

Category A Penalties

This table applies where there is:
(i) A serious injury or illness or death; or
(ii) High risk of serious injury or illness or death; or
(iii) Non-compliance was wilful or with reckless disregard

Assessable Payroll Range ($)	Penalty Amount ($)
up to 500,000	2.5% of payroll, or 2,500, whichever is greater
500,001 - 1,000,000	12,500 + 2.25% of payroll over 500,000
1,000,001 - 1,500,000	23,750 + 2.0% of payroll over 1,000,000
1,500,001 - 2,000,000	33,750 + 1.75% of payroll over 1,500,000
2,000,001 - 2,500,000	42,500 + 1.5% of payroll over 2,000,000
2,500,001 - 3,000,000	50,000 + 1.25% of payroll over 2,500,000
3,000,001 - 3,500,000	56,250 + 1.0% of payroll over 3,000,000
3,500,001 - 4,000,000	61,250 + .75% of payroll over 3,500,000
4,000,001 - 4,500,000	65,000 + .5% of payroll over 4,000,000
4,500,001 - 5,000,000	67,500 + .25% of payroll over 4,500,000
over 5,000,000	68,750 + .125% of payroll over 5,000,000, or 75,000, whichever is less

Category B Penalties

This table applies for any other violations

Assessable Payroll Range ($)	Penalty Amount ($)
up to 500,000	1.0% of payroll, or 1,000, whichever is greater
500,001 - 1,000,000	5,000 + .36% of payroll over 500,000
1,000,001 - 1,500,000	6,800 + .32% of payroll over 1,000,000
1,500,001 - 2,000,000	8,400 + .28% of payroll over 1,500,000
2,000,001 - 2,500,000	9,800 + .24% of payroll over 2,000,000
2,500,001 - 3,000,000	11,000 + .2% of payroll over 2,500,000
3,000,001 - 3,500,000	12,000 + .16% of payroll over 3,000,000
3,500,001 - 4,000,000	12,800 + .12% of payroll over 3,500,000
4,000,001 - 4,500,000	13,400 + .08% of payroll over 4,000,000
4,500,001 - 5,000,000	13,800 + .04% of payroll over 4,500,000
over 5,000,000	14,000 + .02% of payroll over 5,000,000, or 15,000, whichever is less

The "basic amount" of the administrative penalty will be determined on the basis of the employer's assessable payroll for the full calendar year immediately preceding the year in which the incident giving rise to the penalty occurred. If the employer had no payroll in the preceding year, or if the preceding year's assessable payroll is unknown, or based on less than a full calendar year or a Board estimate of payroll, the Board may, for the purpose of calculating the penalty, estimate a value for the employer's assessable payroll for a full calendar year based on the best information available at the time the penalty is imposed. The estimate will not be less than any estimate made previously by the Board of the employer's assessable payroll for the calendar year. An estimate will not result in no penalty or a penalty below the minimum amount set out in the tables. The "payroll" for independent operators with Personal Optional Protection is the amount for which they have purchased coverage.

(b) Multi-site employers

Where a firm has more than one location, the Board may, in determining the "basic amount"of the penalty, use the assessable payroll at the location where the violation occurred, provided that:

the violation has resulted from an occupational health and safety failure at that location rather than a general "program failure" on the part of the employer, and
the employer provides the necessary payroll information for that location to the Board and cooperates in any audit that the Board considers necessary.

A "program failure" includes failure to:

effectively communicate with all locations regarding health and safety concerns;
provide adequate training to managers and others who implement site health and safety programs;
make local management accountable for health and safety performance; and
provide local management with sufficient resources for health and safety issues.

(c) Variation factors

In each individual case, the "basic amount" of the penalty may be varied by up to 30%, having regard to the circumstances, including the following factors:

(a) nature of the violation;

(b) nature of the hazard created by the violation;

(d) whether the employer knew about the situation giving rise to the violation;

(e) the extent of the measures undertaken by the employer to comply;

(f) the extent to which the behaviour of other workplace parties has contributed to the violation;

(g) employer history;

(h) whether the financial impact of the penalty would be unduly harsh in view of the employer's size; and

(i) any other factors relevant to the particular workplace.

2. Penalties up to $250,000

With the approval of the President or delegate, the Board may impose an administrative penalty of up to $250,000 where:

(a) the employer has committed a high risk violation wilfully or with reckless disregard; and

(b) a worker has died or suffered serious permanent impairment as a result.

3. Penalties up to the Statutory Maximum

With the approval of the President or delegate, the Board may impose an administrative penalty up to the statutory maximum where:

(a) the employer has committed a high risk violation wilfully or with reckless disregard;

(b) multiple fatalities have occurred or a number of workers have suffered serious permanent impairment as a result of the violation; and

(c) there is evidence of a systemic disregard by the employer for worker safety, such as a history of serious repeated non-compliance.

4. Repeat penalties

(1) An administrative penalty will be imposed as a "repeat penalty" where:

(a) it is for a violation that is the same as, or substantially similar to, a prior violation for which a penalty has been imposed;

(b) the violations occurred within 3 years of one another; and

(i) had imposed a penalty for the prior violation, or

(ii) provided notice of a potential penalty for the prior violation.

(2) For paragraph (1), the date of a violation is the date of the incident.

(3) The Board may provide notice under paragraph (1)(c) verbally or in writing, in person, by telephone, by mail, fax, email or other method.

(4) A "repeat penalty" will be calculated as follows:

(a) Calculate the "basic amount" of the penalty, including any variation, using Item 1 of this Policy (D12-196-6).

(b) Increase the "basic amount" of the penalty for each "prior penalty" as follows (up to the statutory maximum):

Prior penalty	Multiply basic amount by
one	2
two	3
three	6
four	12
five or more	24

For paragraph (4)(b), "prior penalty" means any prior penalty where the requirements of paragraph (1) above are satisfied.

5. Recovery of costs saved through non-compliance

The amount of any costs saved or profit made by the employer through committing the violation shall, as far as is known, be added to the penalty amount determined under 1, 2, 3, or 4 above and forms part of the administrative penalty.

6. Statutory maximum

In no case will the Board levy an administrative penalty greater than the statutory maximum then in effect.

PRACTICE

Examples of Application of the Repeat Penalty Provisions

Example 1: You are calculating the penalty to be imposed for a violation that occurred less than 14 days after another similar violation that also resulted in a penalty. The employer has no other prior penalties for the same violation.

Calculate the penalty in accordance with Item 1 of this policy by determining the applicable table amount and applying any variation factors. After applying Item 4 of this policy, you determine that the current penalty is not a "repeat penalty". The penalty will therefore be imposed based on the table amount with variation plus any amounts added under Item 5 of this policy.

Example 2: You are calculating the penalty to be imposed for a violation that occurred less than 14 days after another similar violation that also resulted in a penalty. The employer has one other prior penalty for the same violation for which more than 14 days notice was given before the current violation.

Calculate the penalty in accordance with Item 1 of this policy by determining the applicable table amount and applying any variation factors. After applying Item 4 of this policy, you determine that the current penalty is a "repeat penalty". There are two prior similar penalties, however only one meets the requirements to be considered as a "prior penalty". Using the table under Item 4, you determine that one prior similar penalty will result in the amount that you calculated for the penalty being multiplied by two.

EFFECTIVE DATE:	January 2, 2010
AUTHORITY:	s. 196(2), Workers Compensation Act
CROSS REFERENCES:	See also Administrative Penalties - Criteria for Imposing (Item D12-196-1), Administrative Penalties - Prior Violations and Orders (Item D12-196-3), Administrative Penalties - Due Diligence (Item D12-196-10)
HISTORY:	This Item was originally developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective May 1, 2000. Consequential changes were subsequently made throughout Item to implement the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective July 1, 2003 a minor change was made at number four of the policy, to correct the reference of section 20.22 to section 20.11 of the Occupational Health and Safety Regulation. Effective October 29, 2003, an example referencing section 20.11 of the Occupational Health and Safety Regulation in the policy was deleted to reflect the repeal of that section. Effective March 25, 2009 a change was made to base the penalty calculation on the employer's assessable payroll for the full calendar year immediately preceding the year in which the incident that gave rise to the penalty occurred. Effective March 25, 2009 a change was made to allow the Board to estimate payroll in certain situations. Effective January 2, 2010 a change was made to (a) Item 1 to correct a typographical error in the Category A penalty table, and (b) Item 4 so that an administrative penalty will be imposed as a "repeat penalty" where: (i) it is for a violation that is the same as, or substantially similar to, a prior violation for which a penalty has been imposed; (ii) the violations occurred within 3 years of one another; and (iii) at least 14 days prior to the date of the violation giving rise to the repeat penalty, the Board (1) had imposed a penalty for the prior violation, or (2) provided notice of a potential penalty for the prior violation. Housekeeping changes effective September 15, 2010 to correct paragraph reference in item 4(4) and make formatting changes.
APPLICATION:	This policy applies to all decisions to impose administrative penalties on and after October 29, 2003. The amendments made effective March 25, 2009 apply to all decisions, including appellate decisions, made on or after the effective date of the changes. The amendments made effective January 2, 2010 apply to all penalties where a penalty is imposed on or after the effective date of the changes. Transitional provisions apply to penalties within the appeal period, before Review Division or before WCAT on the effective date. Transitional Provision for Repeat Penalty Calculation: Penalties within the appeal period or under review or appeal on the effective date of the policy change will be subject to the policy in effect when originally imposed, with the additional requirement that a prior penalty will only be used to increase the amount of a repeat penalty, if at least 14 days prior to the date of the violation giving rise to the repeat penalty, the Board (a) had imposed a penalty for the prior violation, or (b) provided notice of a potential penalty for the prior violation.

Policy Item D12-196-7
RE: OHS Penalties & Claims Costs Levies - Effect of Application for Stay at Review Division

BACKGROUND

1. Explanatory Notes

This policy addresses administrative penalties imposed pursuant to section 196 of the Act and claims cost levies imposed pursuant to section 73(1) of the Act.

An administrative penalty or claims cost levy must be paid unless a stay is granted by the Chief Review Officer of the Review Division, or the Workers' Compensation Appeal Tribunal.

This policy sets out limits on collection while the decision on an application for a stay is pending at Review Division.

2. The Act
Section 223:

(1) If a person fails to pay an amount owed to the Board under this Part[Part 3], the Board may,

(a) if the person is an employer, direct that the amount be levied on the employer by way of an assessment, and
(b) in any case, issue a certificate for the amount owed and file that certificate in the Supreme Court.

(2) An assessment under subsection (1) (a) is deemed to be an assessment under Part 1 of this Act and may be levied and collected under and in accordance with that Part.

(3) A certificate filed under subsection (1) (b) has the same effect, and all proceedings may be taken on it by the Board, as if it were a judgment of the court for the recovery of a debt of the amount stated in the certificate against the person named in it.

Section 96.2(5)

Unless, on application, the chief review officer orders otherwise, the filing of a request for a review under subsection (3) does not operate as a stay or suspend the operation of the decision or order under review.

Section 96.2(4)

On application, and where the chief review officer is satisfied that

(a) special circumstances existed which precluded the filing of a request for review within the time period required in subsection (3) [90 days], and
(b) an injustice would otherwise result,

the chief review officer may extend the time to file a request for review even if the time to file has expired.

Section 244

Unless the appeal tribunal orders otherwise, the filing of a notice of appeal under section 242 does not operate as a stay or affect the operation of the decision or order under appeal.

POLICY

If an employer has applied to the Chief Review Officer for a stay under section 96.2(5) relating to an administrative penalty or claims cost levy, WorkSafeBC will not collect the administrative penalty or claims cost levy by assessment, or take any additional steps to collect by garnishment, or writ of seizure and sale until the Chief Review Officer has decided the application or the review is concluded, whichever occurs first.

This does not apply to a stay request on a request for review filed after the time to file has expired unless the Chief Review Officer grants an application under s.96.2(4) to extend the time to file a request for review.

PRACTICE

This policy allows WorkSafeBC to register a certificate with the Court and register the debt against an employer's land while a stay request is pending. This would generally only occur when WorkSafeBC identifies a significant risk of loss.

EFFECTIVE DATE:	March 1, 2013
AUTHORITY:	s. 196(5), Workers Compensation Act
CROSS REFERENCES:	ss. 96.2(5), 223(1), 244, Workers Compensation Act
HISTORY:	Amended March 1, 2013 to specify the court proceedings affected by an application for a stay, to include claims cost levies and to address late requests for review. Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the statement of the Act and to the POLICY statement to reflect the Workers Compensation Amendment Act (No. 2) 2002, effective March 3, 2003.
APPLICATION:	This policy applies to all applications for stay requests of penalties or claims cost levies made to Review Division on or after the effective date. For stay requests on penalties made before the effective date, the policy in effect at that time applies, with two modifications to provide that the limits on collection: will end when the Chief Review Officer has decided the application, or the review is concluded, whichever occurs first, and will not apply to a stay request on a request for review filed after the time to file has expired unless the Chief Review Officer grants an application under s. 96.2(4) to extend the time to file a request for review.

Policy Item D12-196-8
RE: Administrative Penalties - Payment of Interest on Successful Appeal

BACKGROUND

1. Explanatory Notes

Section 196(6) requires the payment of interest where an administrative penalty is reduced or cancelled on appeal.

2. The Act

Section 196(6):

If an administrative penalty under this section is reduced or cancelled by a Board decision, on a review under section 96.2 or on an appeal to the appeal tribunal under Part 4, the Board must

(a) refund the required amount to the employer out of the accident fund, and
(b) pay interest on that amount calculated in accordance with the policies of the board of directors.

POLICY

The policies governing the payment of interest are set out in policy in Item AP1-39-2 of the Assessment Manual.

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s. 196(6), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the Explanatory Notes and to the restatement of section 196(6) to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:

Policy Item D12-196-9
RE: Administrative Penalties - Prosecution Following Penalty

BACKGROUND

1. Explanatory Notes

An employer may either be required to pay an administrative penalty in respect of a violation or prosecuted under the Act for the violation, but not both.

2. The Act

Section 196(7):

If an administrative penalty is imposed on an employer under this section, the employer must not be prosecuted under this Act in respect of the same facts and circumstances upon which the Board based the administrative penalty.

POLICY

Once a prosecution under the Act has been commenced against an employer in respect of a violation, the Board will not impose an administrative penalty. A prosecution is "commenced" for this purpose, when an information is laid pursuant to the Offence Act.

An administrative penalty will not be imposed even if the prosecution does not proceed or is unsuccessful.

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s. 196(7), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998 effective October 1, 1999. Consequential changes subsequently made throughout the Item to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:

Policy Item D12-196-10
RE: Administrative Penalties - Due Diligence

BACKGROUND

1. Explanatory Notes

The Board is authorized to impose administrative penalties on employers for failure to comply with Part 3 of the Act and the regulations, and under certain other conditions. Section 196(3) provides that an administrative penalty must not be imposed under this section if the employer exercised due diligence to prevent the failure, non-compliance or conditions to which the penalty relates.

2. The Act

Section 196(3):

An administrative penalty must not be imposed under this section if an employer exercised due diligence to prevent the circumstances described in subsection (1).

POLICY

The Board will consider that the employer exercised due diligence if the evidence shows on a balance of probabilities that the employer took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. Due diligence will be found if the employer reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if the employer took all reasonable steps to avoid the particular event.

In determining whether the employer has exercised due diligence under section 196(3), all the circumstances of the case must be considered.

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s. 196(3), Workers Compensation Act. "Due diligence" is defined at common law by the courts. The standard set out in the POLICY section reflects the leading Supreme Court of Canada case - R. v. Sault Ste. Marie [1978] 85 DLR (3rd) 161. The requirements of the "due diligence" defence are open to re-interpretation by the courts. They may, therefore, be changed in future. Were this to happen, changes would be required to the Board's POLICY as well.
CROSS REFERENCES:	See also Supervisors (Item D3-117-1), Multiple-Employer Workplaces (Item D3-118-1), Owners (Item D3-119-1), Directors and Officers of a Corporation (Item D3-121-1), Overlapping Obligations (Item D3-123/124-1); Administrative Penalties - Criteria for Imposing (Item D12-196-1)
HISTORY:	Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to various parts of the Item to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:	This policy applies to all decisions to impose administrative penalties on and after March 3, 2003.

Policy Item D12-196-11
RE: Occupational Health and Safety ("OHS") Warning Letters

BACKGROUND

1. Explanatory Notes

As an alternative to imposing an administrative penalty, the Board (operating as WorkSafeBC) may send the employer a letter warning that further similar violations of the Act or Regulation could result in an administrative penalty.

Both administrative penalties and warning letters are tools intended to motivate employers to comply with the Act and Regulation.

WorkSafeBC may send warning letters when the grounds for considering an administrative penalty are met and an employer has failed to exercise due diligence.

This policy provides factors for considering the appropriateness of a warning letter. A key factor is the likelihood that the warning letter will be sufficient to motivate the employer to comply in the future. Another is the potential for serious injury, illness, or death in the circumstances.

There is no requirement that a warning letter be sent prior to imposing a penalty.

The policy notes that ordinarily more than one warning letter will not be issued for the same or similar violations. This is because a warning letter is to motivate an employer to comply and non-compliance of a same or similar type suggests that a warning letter was not effective to do so. Similarly, a warning letter would not generally be appropriate for the same or similar violations following a penalty or prosecution. In both circumstances, WorkSafeBC would need to consider what other enforcement tools would be effective to motivate compliance.

2. The Act

Section 196(1):

The Board may, by order, impose an administrative penalty on an employer under this section if it considers that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

Section 111(1):

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

Section 111(2)(d):

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

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

Section 183:

If an officer makes a written report to an employer relating to an inspection, whether or not the report includes an order, the employer must promptly

(a) post the report at the workplace to which it relates, and

(b) give a copy of the report to the joint committee or worker health and safety representative, as applicable.

POLICY

WorkSafeBC may send a warning letter when any of the criteria in Policy D12-196-1 for considering an administrative penalty have been met, and an employer has failed to exercise due diligence.

The applicable criteria from Policy D12-196-1 are as follows:

(1) an employer is found to have committed a violation resulting in high risk of serious injury, serious illness or death;

(2) an employer is found in violation of the same section of Part 3 or the regulations on more than one occasion. This includes where, though a different section is cited, the violation is essentially the same;

(3) an employer is found in violation of different sections of Part 3 or the regulations on more than one occasion, where the number of violations indicates a general lack of commitment to compliance;

(4) an employer has failed to comply with a previous order within a reasonable time;

(5) an employer knowingly or with reckless disregard violates one or more sections of Part 3 or the regulations. Reckless disregard includes where a violation results from ignorance of the Act or regulations due to a refusal to read them or take other steps to find out an employer's obligations; or

(6) WorkSafeBC considers that the circumstances may warrant an administrative penalty.

When considering the appropriateness of a warning letter, some of the factors WorkSafeBC may consider are:

(a) the potential for serious injury, illness or death in the circumstances; and

(b) the likelihood that a warning letter will be sufficient to motivate the employer to comply in the future, taking into account:

(i) the extent to which the employer was or should have been aware of the hazard;

(ii) the extent to which the employer was or should have been aware that the Act or regulations were being violated;

(iii) the past compliance history of the employer; and

(iv) the effectiveness of the employer's overall program for compliance.

WorkSafeBC will, where practicable, send a copy of the letter to any union representing workers at the workplace.

WorkSafeBC will not ordinarily issue:

(a) more than one warning letter to an employer for the same or similar violations; or

(b) a warning letter to an employer that has received a penalty or has been prosecuted for the same or similar violations.

The issuance of a warning letter for a violation does not limit WorkSafeBC's ability to pursue administrative penalties, prosecution or other enforcement or compliance action for subsequent violations.

This policy relates solely to warning letters and does not affect or limit WorkSafeBC's ability to pursue administrative penalties, prosecution or other enforcement or compliance action.

PRACTICE

WorkSafeBC will advise the employer of the obligation to provide a copy of the warning letter to the joint committee and the obligation to post the warning letter in the workplace.

In the event that all the orders underlying a warning letter are cancelled, WorkSafeBC will code the warning letter as withdrawn, or the equivalent, in its systems.

EFFECTIVE DATE:	May 1, 2013
AUTHORITY:	ss.196(1), 111(1) and 111(2)(d), Workers Compensation Act
CROSS REFERENCES:	See also Administrative Penalties - Criteria for Imposing (D12-196-1); section 183, Workers Compensation Act
HISTORY:	Policy amended effective May 1, 2013 to: (a) clarify the criteria to issue an OHS warning letter; (b) treat violations following a warning letter consistently with those following orders or penalties; (c) confirm that WorkSafeBC will not ordinarily issue a warning letter to an employer after a prior warning letter, penalty, or prosecution for the same violation; and (d) remove the requirement to mail a warning letter to the joint committee or worker representative. Housekeeping changes effective September 15, 2010 to delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to various parts of the Item to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:

Policy Item D12-198-1
RE: Occupational Health and Safety Injunctions

BACKGROUND

1. Explanatory Notes

Section 198 of the Act provides that the Board (operating as WorkSafeBC) can apply to the Supreme Court of British Columbia (the "Court") for an injunction restraining a person, including a corporation, from committing a violation or requiring a person to comply with the Workers Compensation Act ("Act"), Occupational Health and Safety Regulation ("Regulation") or an order.

When WorkSafeBC applies to the Court for an injunction, a judge will decide whether or not to grant it.

If a person fails to comply with an injunction and is found to be in contempt of court, they may face a fine, jail sentence or other terms imposed by the Court.

2. The Act
Section 198:

(1) On application of the Board and on being satisfied that there are reasonable grounds to believe that a person

(a) has contravened or is likely to contravene this Part [Part 3 of the Act], the regulations or an order, or

(b) has not complied or is likely not to comply with this Part, the regulations or an order,

the Supreme Court may grant an injunction restraining the person from continuing or committing the contravention or requiring the person to comply, as applicable.

(2) An injunction under subsection (1) may be granted without notice to others if it is necessary to do so in order to protect the health or safety of workers.

(3) A contravention of this Part, the regulations or an order may be restrained under subsection (1) whether or not a penalty or other remedy has been provided by this Part.

POLICY

An injunction is a tool to achieve compliance with an order or an obligation under the Act or Regulation.

WorkSafeBC may use an injunction at the same time as other tools such as an administrative penalty or prosecution.

The following are some of the circumstances in which WorkSafeBC may consider an injunction:

(a) failure to comply with a stop work order issued under section 191 of the Act,

*Explanatory Note: A stop work order, shutting down all or part of a workplace is issued in circumstances where an immediate danger exists that would likely result in serious injury, serious illness, or death to a worker. Failure to comply with a stop work order is particularly serious since WorkSafeBC has issued it after determining that an immediate danger exists.

(b) failure to comply with an order to stop using or stop supplying unsafe equipment under section 190 of the Act,

*Explanatory Note: A stop use order provides that an item not be used or supplied if WorkSafeBC has reasonable grounds to believe that it is not in safe operating condition or is non-compliant.

(d) repeated violation of the same, or similar, section of the Act or Regulation.

This does not limit WorkSafeBC's ability to pursue an injunction in other circumstances.

An injunction is an exceptional remedy to seek. WorkSafeBC may consider the following factors in determining the necessity and appropriateness of pursuing an injunction:

(a) the level of risk that might result from further non-compliance,

*Explanatory Note: If non-compliance is exposing workers to a significant risk, this supports the use of an injunction. If the risk is very low, an injunction might not be appropriate, subject to consideration of items (b) and (c) below.

(b) the impact of the non-compliance on WorkSafeBC's ability to carry out its health and safety mandate, and

*Explanatory Note: In some cases, the risk may be low or unknown but non-compliance may make it difficult or impossible for WorkSafeBC to carry out its mandate. For example, if WorkSafeBC is repeatedly refused entry to a workplace, an injunction may be necessary to ensure that WorkSafeBC can inspect that workplace.

*Explanatory Note: This involves considering what tools, such as orders and penalties, would be effective to achieve compliance as well as looking at the effectiveness of the tools already used.

In some cases, follow up by WorkSafeBC may be sufficient to obtain compliance. An administrative penalty or prosecution, or the prospect of either may also be sufficient to do so. In most cases of non-compliance with an order, WorkSafeBC will likely use tools other than an OHS Injunction to obtain compliance.

Enforcement tools have their limitations, however. Administrative penalties can be imposed very quickly in urgent circumstances but apply only to employers. This may provide little deterrence to the principal of a corporation with minimal assets. Prosecutions can be used for both employers and workers but are slower due to the inherent time requirements of the process.

Injunctions have the advantage of timeliness and broad application. If necessary, an injunction can be obtained quickly and can apply both to individuals and to corporations. The injunction itself and the need to appear before the court may result in a higher level of compliance than from a Board order alone. A further advantage is that non-compliance with an injunction (contempt of court) can be dealt with fairly quickly and can result in significant consequences, including fines or jail.

* The explanatory notes are to provide additional explanation of the factors but are not themselves policy.

PRACTICE

The President's Assignment of Authority states that injunction applications must be approved by WorkSafeBC's President/Chief Executive Officer. WorkSafeBC lawyers apply to the Court for the injunction. The Court then decides whether to grant an injunction.

Applications Without Notice

WorkSafeBC's normal practice is to provide notice whenever possible before the application is made.

Although the Workers Compensation Act states that injunction applications may be made without notice, this will be done rarely and generally only in circumstances of extraordinary urgency. Court decisions state that there must be a very significant reason to proceed without notice to the other party.

EFFECTIVE DATE:	December 1, 2011
AUTHORITY:	s. 198, Workers Compensation Act
CROSS REFERENCES:	ss. 115(1)(b), 190, 191 Workers Compensation Act s. 2.4, Occupational Health and Safety Regulation
HISTORY:
APPLICATION:	This policy is applicable to all decisions to pursue an injunction made after the effective date.

Policies Workers Compensation Act Part 1 Division 1 Imposition of Levies

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

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

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

BACKGROUND

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

2. The Act
Section 2(2):

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

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

POLICY

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

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

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

EFFECTIVE DATE:	March 3, 2003
AUTHORITY:	s. 2(2), Workers Compensation Act
CROSS REFERENCES:
HISTORY:	Housekeeping changes effective September 15, 2010 to remove reference to D16-223-1, delete practice reference and make formatting changes. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the policy statement to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003.
APPLICATION:

Policies Workers Compensation Act Part 1 Division 5 Charging of Claim Costs

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

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

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

BACKGROUND

1. Explanatory Notes
Section 73 authorizes the Board to charge claims costs to the employer in certain circumstances. The maximum amount the Board may levy is adjusted annually in accordance with the Consumer Price Index under section 25 of the Act. Starting January 1, 2013, the maximum amount is $52,827.16.

2. The Act
Section 73:

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

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

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

the Board may levy and collect from that employer as a contribution to the accident fund all or part of the amount of the compensation payable in respect of the injury, death or occupational disease, to a maximum of $52,827.16.

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

POLICY

This section may be applied if:

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

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

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

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

EFFECTIVE DATE:	July 1, 2008
AUTHORITY:	s. 73(1), Workers Compensation Act
CROSS REFERENCES:	See also Accident Reporting and Investigation - Types of Incidents Covered (Item D10-172); Administrative Penalties - Criteria for Imposing (Item D12-196-1);
HISTORY:	Housekeeping changes effective September 15, 2010 to remove reference to D16-223-1, update maximum claims cost levy amount, replace Worker and Employer Services Division with the Board, delete practice reference and make formatting changes. Item developed to align prevention policy with section 73(1) of the Workers Compensation Act so that the Board's discretion as to the amount of the claim cost levy is not fettered, effective July 1, 2008. Item developed to implement the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998, effective October 1, 1999. Consequential changes subsequently made to the policy statement to reflect the Workers Compensation Amendment Act (No. 2), 2002, on March 3, 2003. Effective December 31, 2003 a consequential change was made to include a reference to new Item D12-196-4 and the maximum amount referenced in section 73(1) was updated.
APPLICATION:	This policy applies to all decisions, including appellate decisions, to charge claim costs on and after 2003 July 1, 2008.

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Disclaimer: This online HTML version of Prevention Policies comes from the Prevention Manual and is not the official version. The Workers' Compensation Board of B.C. ("WorkSafeBC") does not warrant the accuracy or the completeness of this HTML version of the Prevention Manual 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 HTML version of the Prevention Manual. The official version of the Prevention Manual is available online in PDF format at www.worksafebc.com/regulation_and_policy/published_policy/default.asp.

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Policies Workers Compensation Act Division 1 Interpretation and Purposes

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

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

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

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APPENDIX

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

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

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

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

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

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

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Policies Workers Compensation Act Division 4 Joint Committees and Worker Representatives

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

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

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

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

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Policies Workers Compensation Act Division 6 Prohibition Against Discriminatory Action

Policy Item D6-150/151/152-1 RE: Discriminatory Actions/ Failure to Pay Wages - Scope

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Policy Item D6-153-1 RE: Discriminatory Actions/ Failure to Pay Wages - Investigation of Complaint

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POLICY

PRACTICE

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Policies Workers Compensation Act Division 8 Miscellaneous Authority

Policy Item D8-160-1 RE: First Aid Equipment - Imposition of Special Rate of Assessment

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Policies Workers Compensation Act Division 9 Variance Orders

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

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

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

Policy Item D2-111-3
RE: Board Approval

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

Policy Item D3-115-1
RE: Employer Duty Towards Other Workers - Section 115(1)(a)(ii)

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

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

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

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

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

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

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

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

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

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

Policy Item D4-140-1
RE: Joint Committees - Participation of Worker Representative in Inspections

Policy Item D6-150/151/152-1
RE: Discriminatory Actions/ Failure to Pay Wages - Scope

Policy Item D6-153-1
RE: Discriminatory Actions/ Failure to Pay Wages - Investigation of Complaint

Policy Item D8-160-1
RE: First Aid Equipment - Imposition of Special Rate of Assessment

Policy Item D9-166-1
RE: Variance Orders - Information Required

Policy Item D9-168-1
RE: Variance Orders - Consultation on Application

Policy Item D10-172-1
RE: Accident Reporting and Investigation - Immediate Notice of Certain Accidents (Major Release of Hazardous Substance)

Policy Item D12-187-1
RE: OHS Compliance Orders

Policy Item D12-188-1
RE: Orders - Contents and Process

Policy Item D12-191-1
RE: Orders - To Stop Work

Policy Item D12-195-1
RE: Orders - Cancellation and Suspension of Certificates

Policy Item D12-196-1
RE: Administrative Penalties - Criteria for Imposing

Policy Item D12-196-2
RE: Administrative Penalties - High Risk Violations

Policy Item D12-196-3
RE: Administrative Penalties - Prior Violations and Orders

Policy Item D12-196-4
RE: Administrative Penalties - Authority to Impose

Policy Item D12-196-6
RE: Administrative Penalties - Amount of Penalty

Policy Item D12-196-7
RE: OHS Penalties & Claims Costs Levies - Effect of Application for Stay at Review Division

Policy Item D12-196-8
RE: Administrative Penalties - Payment of Interest on Successful Appeal

Policy Item D12-196-9
RE: Administrative Penalties - Prosecution Following Penalty

Policy Item D12-196-10
RE: Administrative Penalties - Due Diligence

Policy Item D12-196-11
RE: Occupational Health and Safety ("OHS") Warning Letters

Policy Item D12-198-1
RE: Occupational Health and Safety Injunctions

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