Liberal Government Introduces Alarming Changes to Ontario Health and Safety Legislation

https://drive.google.com/file/d/0Bxbt83N7zYaVZnk5LUw5akJXSGM/view

NDP Response to Bill 70 (in the Legislature): Fall Economic Statement

Wednesday November 23rd

Routine Proceedings

(http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-11-23&Parl=41&Sess=2&locale=en)

Before I begin, I want to thank Cindy Forster, the MPP for Welland, who is the labour critic. Her office has been incredibly helpful to me in this regard. Our entire research staff have been combing through this piece of legislation because it is an omnibus bill. This is the same government that used to criticize the Stephen Harper government and say that omnibus bills were fundamentally undemocratic. You’ll remember that, Mr. Speaker.

This government was very critical of the Harper government and how they would layer and build in these little loopholes into a piece of legislation. Unfortunately, Bill 70 is all that and a little bit more. This was not a stretch goal for this Premier. Schedules 16 and 17, in particular, are quite damaging.I’m going to dedicate most of the time to schedules 16 and 17. Schedule 16 genuinely caught a lot of people in this province off guard. Schedule 16 amends the Occupational Health and Safety Act to allow the Chief Prevention Officer to accredit a health and safety management system, according to the standards set out by the CPO. I want to talk to you about why this is so important. I’m going to give you a quick overview, Mr. Speaker.

But I’m going to start by saying that as New Democrats, we filed a reasoned amendment on Bill 70. We asked that schedules 16 and 17 be removed. If this government was truly concerned about the welfare of the workers who actually are responsible for building Ontario up, they would have removed and accepted this reasoned amendment.

Essentially, what we were arguing was that substantial labour amendments—with the issue of worker safety—should not be part of a finance bill, fundamentally. We asked that schedules 16 and 17 of Bill 70 be deleted and that each of the said schedules be introduced as separate public bills. This government should have accepted that. That they’re burying these two schedules in Bill 70 is actually—in some respects, it’s unprecedented, especially that these schedules go so far.

I am going to be addressing who this bill leaves out, actually, because the government has been talking about inclusion and about enabling, and this bill does not do that.

You’ll remember that the first iteration of Building Ontario Up came after 2014 as part of a budget measures act. After the prorogation, a light went on and they remembered to put “Building Ontario Up for Everyone.” They recognized that they’re actually supposed to be here for everyone. But what’s interesting is that throughout this legislation, the bill sets up a regulatory framework instead of including the changes in the bill, so that promise of openness and transparency is also not contained within this bill.

Schedule 16 makes a significant and consequential and regressive change to the Occupational Health and Safety Act, the OSHA. Opposed by allied injured worker groups, it would create a system of health and safety so-called accreditation for employers that would remove these employers from being subject to mandatory health and safety inspections. Under the change, the Chief Prevention Officer, the CPO, may establish standards that a health and safety management system must meet in order to become an accredited health and safety management system, the details of which are left to regulation. This is a major problem: that so much of this schedule, in particular, is left to regulation.

It also provides that the Chief Prevention Officer establish standards and access records from employers wishing to participate, subject to provisions of the Freedom of Information and Protection of Privacy Act. Why is this so important? You might not know this, Mr. Speaker, but in our overview with ministry staff and the briefing, ministry staff had said that nothing in the schedule removes the burden, in some employers’ view, of mandatory inspections. However, labour and injured workers’ advocates shared the contents of an email that they received from the same ministry staff that described the plan changes this way—so this is coming from the ministry:

“Businesses who set up a superior example when it comes to health and safety standards and compliance should be rewarded for their efforts, while others should be incentivized to follow their example. This program would recognize employers who implement superior occupational health and safety management systems, highlighting the great work that they are doing to protect Ontario workers and reduce the burden of unnecessary processes such as routine inspections. We would still investigate complaints and incidents.”

1710

So there are several people who are leaders, really, on worker safety, evidence-based researchers who understand this field incredibly well. One likens the change to what exists under the experience rating program now, widely condemned by labour and injured workers as leading to loss-time injury (LTI) claims suppression by employers who have been incented to apply pressure to employees to return to work quickly after an accident or injury regardless of whether the worker is ready because under the program employers with low LTI are awarded rebates—sometimes in the tens of thousands each year—while employers with poor records are effectively fined. This has led to a well-documented situation where injured workers not ready to return go back to work for fear of reprisals.

This is a very real issue in the province of Ontario.

Obviously, as I mentioned, most of these changes planned here beg further scrutiny, pointing out that the details are left to regulation and openly wondering—and this is the outstanding question on schedule 16: When is a routine inspection an “unnecessary process,” and what other “unnecessary processes” are they referring to?

Ministry staff, while they did their best in our briefing, did not address some of the outstanding questions: Who would develop accreditation standards? Why does ministry staff characterize routine inspections as a “burden” and an “unnecessary process”? What are the current resources being devoted now by the CPO to these inspections? What would be the cost of setting up and administering this new accreditation process versus the cost of continuing routine inspections? Why is the ministry establishing a regime where only at the point of injury or worse can one complain about health and safety standards?

We all know, in this place—and I’m sure the member from Muskoka knows as well—that the smart money on worker safety is on the prevention piece. It’s on the education piece. It isn’t picking up the pieces of your life after, or worse.

This would beg the question: How well are we doing, actually, in the province of Ontario? Well, one only has to look at the ministry guidelines. This entire movement is going to give outstanding powers to the Chief Prevention Officer, so let’s look and see how well we are doing in the province of Ontario.

From the 2014-15 annual report: “From 2005 to 2014, there was no substantial increase or decrease in fatality rates and critical injuries.” We’ve made no progress. Things aren’t getting worse, but they’re not getting better. So what have we decided to do? We’ve decided to give the Office of the Chief Prevention Officer more powers to—what? Maintain the status quo, or, as the informed voices of labour have pointed out, actually give power in all the wrong places at the end of the cycle, after workers are injured?

The OFL has been very forthright with us, and I’m sure with the government as well. “These proposed amendments go far beyond just giving the government the power to create an accreditation process. Section 7.7 gives the Chief Prevention Officer the power to outsource….”

We have serious, serious concerns about giving the CPO these powers. He can outsource virtually the entire accreditation recognition process. He can outsource the training program approval. He can outsource deciding who is an approved training provider. He can outsource the certification of the JHSC members. He can outsource the collection of information about workers who have been trained.

This opens the door for the privatization of workplace health and safety; make no mistake about it. It’s all in the regulations, all outside the scrutiny of the people of this province and all without consultation with the very people we rely on to build Ontario up.

Now this government has accelerated, in an aggressive manner, the privatization agenda on almost every front. On health care for certain, the Auditor General said that 30% of the funding that goes to CCACs goes to administration, bureaucracy and profit. We have seen the energy file really be compromised in such a strategic way by putting the private interests of corporations and businesses ahead of the very people whom any government, and particularly this government, is elected to serve.

There have been some mea culpa statements that have happened of late. I read with interest today some of the comments and reflections on what that mea culpa looks like, especially with regard to the privatization of energy, because if they can privatize and compromise the economy of future generations going forward on the energy file, they certainly can do it on occupational health and safety, and they certainly can do it on the health care file as well. It’s actually happening in our colleges and universities, with the outsourcing of key services as well.

This op-ed caught my attention today. It’s from Robyn Urback. It was from CBC this morning. It’s an opinion piece, but it truly reflects the privatization movement, if you will, and the negative impact that privatization has on people of this province. The title is, “Aside from the Incessant Warnings, Ontario’s Hydro Crisis Clearly Came Out of Nowhere.” She goes on to say, “Aside from the repeated, incessant warnings—there was no warning.” This is a very sarcastic piece, I’d have to say at the outset.

“Ontario’s energy costs have spiralled out of control. Consumers are struggling to pay their hydro bills and still have enough money left to buy a ticket to one of the Premier’s cash-for-access fundraisers.

“Who—with the exception of everyone—could have foreseen that wasting billions of dollars on cancelled gas plants, paying way above market value for green energy contracts, producing too much energy and selling it to other jurisdictions at a loss, and investing in smart meters that didn’t actually do what they were supposed to do would translate into skyrocketing electricity bills for everyday Ontarians?…

“Now Ontario finds itself in a mess of its own making, locked in unsustainable contracts and a looming cap-and-trade scheme that will make hydro bills even more expensive, all while some Ontario families have ‘had to choose between paying the electricity bill and buying food…’”

In the weeks and months ahead, the Premier has said that she’s going to look at ways to lower rates, but this government “didn’t seem to realize its mistake until it finally took a look at the numbers—not in the province’s energy file, of course, but in a Mainstreet/Postmedia poll released earlier this month on the Premier’s approval ratings.”

That is what drove this particular Premier to recognize that the high, skyrocketing hydro rates are truly hurting the people of this province, but there hasn’t been a recognition on the part of this government that incorporating profits into private companies’ contracts on renewable energy, to date, has cost the people of this province $37 billion more. That number keeps me up at night. It’s such a huge number. It’s almost unfathomable how we are going to get out from under those 25-year contracts.

Robyn goes on to say, and this is my point on this: “Just one week ago in the government’s fall fiscal update, the Liberals announced triumphantly, ‘Our plan is working.’” It’s like the emperor has no clothes—you remember that fairy tale, Mr. Speaker. There’s a mea culpa on a Saturday, and on Thursday they declare the plan is working.

“Indeed, besides the dozens of reports, years of increasing consumer prices, dire financial warnings and protests over unaffordable hydro bills—there was no way” that anyone “could have seen this coming.” That’s a nice satirical piece just to break up the one-hour lead on this piece of legislation.

1720

Back to schedule 16: There was this promise that this government was going to be different. There was this promise that they were going to consult. There was this promise of leading from the activist centre and truly incorporating the voices of the people of this province. Yet on schedule 16, on the skilled trades in the province of Ontario, you have a piece of legislation which will undermine safety, which opens the door to privatization. Honestly, at the end of the day, this burden of having workplace inspections—imagine calling a basic evidence-based practice of protecting workers in the province a burden. Imagine the arrogance that takes, especially when we have seen no improvement on worker safety in the province of Ontario since 2005. It is absolutely, completely shocking.

I’d like to remind the government that routine workplace inspections are not a burden when the workplace is safe. That is the goal. The goal is to have safer workplaces. We have all seen the victims of workplace accidents; sometimes their parents come to this place. We have all pledged, we have all promised—in fact, we took an oath when we became elected officials to put the needs of the people that we serve above private interests.

For me, I always think of Nick Lalonde. Nick Lalonde was 22 years old. He was working on a high-rise apartment in Waterloo. He had a harness on. He was not strapped in. He had no working-at-heights training. What I had to do, as a member for two years—you’ll remember this, Mr. Speaker—was continue to raise his name, because he fell from that building at 22 years of age. He was a young father. His entire family feels the pain of not having that working-at-heights training each and every day. Every time I go by that building I think of him.

Now, after following the Dean report and asking the questions, finally the Chief Prevention Officer developed mandatory workplace working-at-heights training, which my own son completed last summer before starting his apprenticeship as an electrician. But it cost $230. How many families, especially in the child poverty capital right here in Toronto, have $230 to have their child trained before going to work on a roof or in a plant? How engaged are those students in knowing their rights as workers in the province of Ontario?

Will schedule 16, by expanding these powers to the Chief Prevention Officer, make workplaces safer in the province of Ontario? It will not. Uncategorically, it will not, and we are going to fight it. That’s why we wanted it pulled out of this piece of legislation.

Moving on, though, because I have to move on a little bit, to finalize on schedule 16 around occupational health and safety: “The research is clear. Government inspections are valuable to protecting worker health and safety. But the value of management systems with which the Liberals want to replace inspections is totally unproven. More like self-interested wishful thinking.” This came from an individual, an activist for injured workers who really wants to inform policy in this place going forward.

Consultation after the fact is never effective consultation, but we will push this government to honour that commitment that they made to the OFL, to OPSEU and to the skilled trade workers in the province of Ontario, quite honestly.

Moving on to schedule 17, which really just doubles down on undermining worker safety in the province of Ontario: Schedule 17 amends the Ontario College of Trades and Apprenticeship Act, 2009, to give the minister the power to determine the classification of a trade, which was formerly the college’s responsibility.

The concerns on this particular file are too—the list of concerns would take me well past an hour, but I do want to get some of them on the record.

It will dramatically alter the way that the College of Trades functions today. Namely, it will open up reclassifications of scope of trades, including what shall be considered compulsory or voluntary—skills and standards for skilled trades—as well as setting the ratios, like how many apprentices to journeymen, for instance. These changes are going to be facilitated by the appointments council.

I want to thank the International Brotherhood of Electrical Workers for reaching out and sharing their evidence-based concerns, as well as a legal opinion they have sought, on the efficacy of the changes to the Ontario College of Trades. Just as an overview, in the legal opinion they provided on the amendments, they’ve said that they will “devalue skilled trades and put the public at risk by allowing unskilled workers to do the work of a compulsory trade…. Bottom line is big business will benefit from cheap labour costs and the public and workers will be at risk.”

Essentially, what the government is trying to do is say that if a piece of work is being done by a labourer that falls under the scope of practice of a skilled trade, it may now be allowed if the Ontario Labour Relations Board decides that work in isolation might not be dangerous. So it’s very subjective.

“Segmenting out pieces of a trade will open the door to more and more work being done by unskilled workers who don’t realize the risks. If the government thought that the scopes were too broad, then let the college go about its work to update the scopes instead of creating a Wild West that lets corporations benefit from” paying low wages for labour.

I have to tell you, Mr. Speaker, it is hard not to think of my own son in this instance, who is just starting his apprenticeship career. Once they realize what this government is up to, every parent with a child who is going to be entering the trades—and we need more skilled trade workers in the province of Ontario—every parent will be on that front lawn of Queen’s Park fighting for a clear, safe method of ensuring that people have the appropriate training.

This is also a consumer protection issue. It’s also an underground economy issue. The more people you have working in the underground economy without the appropriate qualifications, the more it increases the chance of something going wrong—something going wrong for the homeowner, something going wrong for the worker and something going wrong for the consumer.

The other piece about schedule 17 is that it strikes out the current definitions of “compulsory trade” and “voluntary change” in section 1 of the Ontario College of Trades Act and substitutes “minister’s regulation,” once again giving outstanding powers to a minister. Schedule 16 gives outstanding powers to the Chief Prevention Officer, but the decisions of the board on reclassifications, ratios, compliance and enforcement will be “final and binding.”

Well, how very democratic of you. You put it right in the schedule that there is no appeal to what would be compulsory and what would be voluntary.

Just as an example, when asked, the ministry staff acknowledged that as drafted, the new powers of the panel regulating the college could conceivably result in a member of the college, perhaps the home builders’ association, an employers’ group, applying to have non-certified workers on a construction site certified as framers—though “they wouldn’t do that.” No, of course not. So this is the “trust us” clause. That same scenario was floated where perhaps a labour group could also be involved in this.

This is a substantive schedule which moves the College of Trades and the mandate of the College of Trades away from worker safety. It caused such concern for IBEW, with very good reason, that they sought a legal opinion. I’m going to give you a quick overview about what the legal opinion stated.

1730

It says, “The government has chosen a drastic method, in terms of both legislative process and substantive result, to weaken the public protection mandate of the College of Trades beyond recognition. Schedule 17 of Bill 70 will essentially reverse or neuter the regulation of the trades just a few years after the need for regulation was first recognized and implemented.”

It says, “In terms of process”—and this is important, Mr. Speaker, because this speaks to the work we are supposed to be doing in this place around the creation of legislation which meets the needs of the people of this province. It says:

“In terms of process,

“(1) The government has hidden the proposed amendments from public scrutiny by attaching them as schedule 17 to an omnibus budget bill;

“(2) The bill does not say it is modifying ss. 2 and 4 of the College of Trades and Apprenticeship Act … which purport to protect public safety by restricting the work of compulsory trades to skilled tradesmen, yet it proposes several other new legislative provisions that override those sections….” Again, how very open and how very transparent of this government.

“(3) Most prominently, the bill contradicts basic principles of constitutional law by giving an administrative tribunal—the Ontario Labour Relations Board … —the authority to overrule provisions of the legislation. This practice has been disparaged for the last 100 years by courts and commentators….

“(1) The college is being stripped of its regulation-making authority to classify trades as compulsory or voluntary, even with the approval of the Lieutenant Governor in Council.

“(2) The judicial appeal from enforcement decisions that exists under the Provincial Offences Act is being removed, and an administrative process with no guarantees of procedural fairness and natural justice is being substituted.”

So where are the rights of a worker in the province of Ontario or of a tradesperson in the province of Ontario, Mr. Speaker?

“(3) Sections 2 and 4 of the act, which constitute the core of the public protection mandate of the college, will be rendered meaningless or unenforceable in a variety of ways. Any violation of the scope of practice of a compulsory trade is permitted.”

So this is very permissive legislation, and it’s once again in an omnibus bill. How can this government be trying to do a reset or a rethink about who you are when you bury schedules like this, these poison pills, in omnibus bills? It runs counter to the whole public relations campaign that the Liberal Party is currently undergoing—the “trust us” clause. That trust was gone a long time ago. You can build trust by building legislation which actually is responsive to the needs of Ontario and the small businesses, as I indicated earlier.

This legal opinion goes on to say, and once again I want to thank IBEW for it: “The Liberal Party and others criticized the federal Conservatives as undemocratic when they adopted a practice of burying significant initiatives in hundreds of pages of appendices to completely unrelated bills…. Such bills normally require expeditious passage.”

Well, this bill is going to pass. I mean, we tried to pull schedules 16 and 17. It’s going to pass. We’re not going to support it, and we’re going to be proud to stand down on this piece of legislation and to vote against schedules and legislation which will hurt the people of this province and undermine worker rights. We’re going to be proud to do that, Mr. Speaker.

What we have is a secretive process where everything is in the regulations. Even the people who have been involved in the crafting of the legislation can’t answer the questions about how that legislation is going to play itself out.

But I will say that “basic constitutional principles of supremacy of the Legislature dictate that not even the cabinet, much less an appointed subordinate administrative body, should be permitted to overrule the will of the Legislature as expressed in the terms of the statute.”

We have a real problem. It’s a systemic issue in this Legislature, where a piece of legislation like a finance bill like Bill 70 can come with a whole hidden agenda, if you will. That door has been left open for privatization of health and safety; there’s no doubt about it. This legal opinion has proven helpful for us in determining where the risks are to the people and the workers in Ontario, and why this government has put these two schedules in this finance bill. It certainly begs the question as to where the real motive is. I go back to the Ontario craft distillers: “Tell us, was this intentional? Are you trying to kill our industry on purpose or are you just completely blind to the real needs of the people of Ontario?” That question begs an answer.

OPSEU has been very vocal on workplace safety and privatization over the years, which I can talk about at length, I can tell you, for sure. The contracting out of services across this province and the undermining of good, safe, well-paid jobs have been a concerted effort on the part of this government to embrace precarious part-time contract work with such pure abandonment and sometimes joy. They actually brag about the fact that Ontario has the lowest budget line for services.

Those services and those workers were a valued profession at one point. From the custodians who cleaned our hospitals, to the workers in the cafeterias at our hospitals, to the custodians and the maintenance and the landscaping crews that keep our universities safe and clean: Those used to be good jobs. Not anymore; not in the province of Ontario. The contracting-out door has been wide open and it has been rewarded if you get those people out that door.

So IBEW has raised some good questions, no doubt about it, and OPSEU has raised the issue around occupational health and safety, particularly around schedules 16 and 17. OPSEU says:

“This is bad news for the health and safety of workers in Ontario. Not only could the new health and safety system standards and overseeing role go outside government”—so then you don’t have the responsibility, which is another trend of this government—“but the change would allow the CPO to delegate existing items to outside parties, such as approving certified training providers, certifying worker committee members and collecting and maintaining certification and training information.”

This is a real problem. I’ve cited research already, but at the end of the day, the new health and safety management system idea—this is from OPSEU—“sidelines joint health and safety participation in the collective voice of workers that” researcher “James Ham noticed as important during the Ham Commission’s review of health and safety systems” right back to the 70s. “Ontario’s legislation needs to provide workers and joint health and safety committee members and health and safety representatives with more power in their workplaces, not less.” Those workers and their voices in those workplaces need to be empowered.

OPSEU makes a very good point. They go on to say that it can make workplaces more dangerous: “If employers are to receive breaks due to being accredited, such as being relieved from proactive” Ministry of Labour “inspections, workplaces would become more dangerous.”

Proactive Ministry of Labour inspections “act as a deterrence tool in Ontario’s prevention system because workplaces can be inspected at any time.” This is the key piece. If you give somebody the heads-up that you’re going to come inspect their workplace, they’re going to make sure the chemicals are put away and that the workers have the appropriate equipment. It doesn’t make any sense.

“The deterrence effect of enforcement has recently been confirmed in a 2016 systematic review of 43 studies by the Institute for Work and Health … where they found that the government inspections with the potentials for orders and penalties motivate employers to improve health and safety.” Now, isn’t that what we want? We want our workplaces to be safer.

You’ve done one thing with this bill, I have to tell you: You have agitated the activists. Congratulations. An enraged electorate is an engaged electorate. We will be hearing from multiple stakeholders, as I’m sure that you will, on the worker safety issue.

The question still remains: Where is the motivation? Is the motivation to reduce the expenditures? Is the motivation to say that no longer does the government truly have the responsibility because you farmed out the responsibility, just like you did with the CCACs, just like you did with the LHINs, just like you did with Ornge, just like you did with eHealth? The examples go on and on and on.

1740

Even you as individual members must look at this piece of legislation and say, “A few things just don’t belong in this legislation. They just don’t fit. They stand out. They have no place in ensuring that this province really will be built up for everyone.” The “everyone,” obviously, was a long-standing afterthought for everyone.

I’ll just leave you with one quote from a stakeholder who asked, “Why are skilled trades suddenly being treated differently than other professions? … Who benefits from lower labour costs and who stands to lose when potentially dangerous work is done by untrained individuals?” Those are good questions around sections 16 and 17.

It is also worth mentioning that the college is governed by skilled trades, both union and non-union, as well as employers and employees. But it also has board members there to protect the public interest. That was always one of the key mandates of the college. Many of the enforcement officers at the college are skilled trades professionals who understand the complexity of the work of skilled trades, like electricians, and can best assess harm. The Wynne government is now taking away the public protection decision-making from the governing body that has the mandate and the knowledge to make those decisions and delegating to a third party whose mandate is to deal with jurisdictional disputes. How many people will have to die in Ontario before you realize that diluting the value of skills and training will cause more harm and risk to workers and to the public?

I have to say, this is a piece of legislation that we cannot support because it doesn’t build Ontario up. It doesn’t support the small and medium-sized businesses. It’s a strong indicator of how disconnected this government is from real Ontarians. It is truly amazing to me that we have this amazing potential, as I mentioned, in schedule 1, of these new craft distillers who are trying to follow their dream, and this government slapped a 61.5% tax on them. How is that in any way supportive? How is that in any way an acknowledgment that this economy will never fully recover without small and medium-sized businesses? The role of government is to support those businesses by being open and transparent—not by these backroom grants that are given through the southwestern development fund, which are invite-only applications, but by being open and transparent and saying, “We recognize the potential of the craft distillers. We understand that there’s a direct connection with supporting rural economies and the agricultural sector. We understand that Ontario has so much to offer, that Ontario can be the province that we all hope for and that we all dream of.” The small and medium-sized businesses and those dreamers—in this sector, in particular—are meant to have the opportunity, at least, to reach their potential. That’s all that we are asking. Don’t put a barrier in front of them. Don’t put a roadblock in front of a young, up-and-coming distiller who wants to practise his or her craft.

Why this government has gone in this direction is beyond me. I have no good answer. I suspect that the members on that side of the House cannot explain why these two substantive changes in schedules 16 and 17 are here. You can’t. There’s no good reason. There is no good reason. Yet here we are, debating Bill 70.

New Democrats will not be supporting this piece of legislation because it hurts workers and undermines small and medium-sized businesses and the economy. It once again proves that this government is completely and utterly out of touch with the people who they were elected to serve.