A. The Legislative Framework for Health and Safety
Ontario’s regulatory scheme for health and safety is primarily governed by two statutes: the Workplace Safety and Insurance Act, 1997 (WSIA) and the Occupational Health and Safety Act (OHSA).559 The WSIA is administered through the Workplace Safety and Insurance Board (WSIB). Workplace safety insurance provides an employer funded compensation and early and safe return to work insurance plan for work-related injury/illness.
The legislative mechanism by which workers’ health and safety is protected is governed by the Occupational Health and Safety Act and its regulations. The OHSA is based on the principle of the internal responsibility system under which the workplace parties share responsibility for occupational health and safety. Employers are required to have a health and safety policy and must ensure there is a joint health and safety committee (and in smaller workplaces, health and safety representatives). The OHSA sets out the four basic rights of workers: a) the right to participate in identifying and responding to workplace health and safety concerns; b) the right to know and have training and information about any potential hazards; c) the right to refuse work that is dangerous or exposes the worker to workplace violence; and d) the right of certified members of a joint health and safety committee to stop work in dangerous circumstances. The OHSA sets out the obligations of those who have control over the workers, workplace, materials or equipment. The Act imposes a general duty on employers to take all reasonable precautions to protect the health and safety of workers and specifically defines the employers’ responsibilities. Workers are required to work safely and comply with the Act and its regulations. If the internal responsibility system fails, the Ministry of Labour has the authority to enforce the OHSA and it does so through inspections both proactive and reactive, compliance orders and charges. Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, introduced strengthened protections for workers from workplace harassment and violence by requiring employers to develop and implement policies and procedures to respond to and prevent workplace violence and harassment.560 A more detailed description of historical developments in Ontario’s health and safety system are outlined in the Dean Report and by Vosko et al.561
Amendments to the OHSA in 2011 explicitly define the Minister’s powers and duties to include the promotion of health and safety and the prevention of injuries, public awareness, education and the fostering of a commitment to occupational health and safety among workers and employers.562
1. Reprisals and 2011 Amendments
Section 50 of the OHSA prohibits reprisals against workers for acting in compliance with or seeking enforcement of the Act or regulations. A worker who believes they have been penalized because they exercised their rights and responsibilities under the Act can file complaint with the Ontario Labour Relations Board (OLRB). At the OLRB, the onus is on the employer to prove that no reprisal took place.563 In response to the Dean Report, under 2011 amendments to the OHSA that became effective April 1, 2012, Ministry of Labour inspectors, on consent of the worker, may refer a worker’s reprisal complaint to the OLRB.564 Also effective April 1, 2012, a new regulation under the OHSA prescribed the functions of the Office of the Worker Adviser (OWA) and Office of the Employer Adviser (OEA) in respect of reprisal complaints. These are discussed further in the discussion section on reprisals leading up to Recommendation 35.
2. Joint Health and Safety Committees (JHSCs)
Joint health and safety committees/representatives provide a process for identifying and resolving workplace health and safety concerns. This mechanism provides a forum for worker voice and participation, functioning as a partnership between management and workers to fulfill an advisory role for workplace safety.565 In most workplaces with at least twenty employees, committees must be established. In smaller workplaces, individual representatives are appointed by workers or, where applicable, the trade union. Representatives have essentially the same powers as the joint committee. In larger workplaces, at least one worker and one management representative of the committee must be “certified”. As of April 1, 2012, the Ministry of Labour, through the Chief Prevention Officer, has the mandate to set standards for the certification and training of joint health and safety committees, and to certify members who meet the standards. Committees identify hazards by conducting workplace inspections and obtaining information from employers.566 Committees can make written recommendations on health and safety improvements to which the employer must respond.567 Any work refusals and serious injuries can be investigated by the committee. Some Project Advisory Group members suggested that some employers did not set up operational joint health and safety committees/representatives or, in some cases, they were in place in name only. In its response to the Interim Report, the government explained, “[a]s part of an inspection or investigation, inspectors typically monitor the functioning of the internal responsibility system at a workplace, and one of the key ways inspectors do this is by assessing whether there is a properly functioning joint health and safety committee (or representative) in place.” 568 Accordingly, this is an area that would benefit from increased proactive enforcement.
The Law Commission of Ontario recommends that:
32. OHSA enforcement activity include proactive inspections to ensure joint health and safety committees and representatives are in place where required and are effectively operational.
Under the OHSA system, compliance and enforcement are achieved through a combination of an internal responsibility system which relies on the worker-employer partnership and an external responsibility system which relies on formal enforcement strategies through inspections, proactive and reactive to complaints, critical injuries, fatalities and refusals.569 Confirmed violations can result in the issuance of compliance orders and/or stop work orders or prosecutions under Part I (tickets) or for more serious matters, Part III, of the Provincial Offences Act.570 In very rare circumstances, in proceedings separate from the OHSA, following police investigation and the laying of criminal charges, offenders are prosecuted under the Criminal Code. 571
The OHSA applies to most workplaces but there are certain exemptions and limitations. For example, it does not apply to “work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence.”572 Among others, live-in caregivers are excluded from the Act. Originally, farming operations were exempt but in 2006 farming operations were brought under the OHSA, with some limitations.573 Farming employers have the same legal obligation to take every precaution reasonable in the circumstances for the protection of workers as employers in other industries. Farming supervisors and workers also have the same obligation as those working in other industries to take appropriate steps to identify and address all workplace hazards. The inspection and enforcement regime also applies. While the OHSA requires a joint health and safety committee to be set up at a workplace with 20 or more regularly employed workers, the application of this requirement is limited to mushroom, greenhouse, dairy, hog, cattle and poultry farming. For other types of and smaller farms (i.e., 6-19 regularly employed workers), health and safety representatives are required. In workplaces with temporary agency workers, some stakeholders are of the view that certain employers are misinterpreting “regularly employed workers” to exclude temporary agency workers in order to circumvent the requirement to have a joint health and safety committee.574 As part of the recommendation above, proactive enforcement activities should include targeting this type of activity to ensure proper compliance.
Rather than regulations specifying hazards, there are Occupational Health and Safety Guidelines for Farming Operations in Ontario which have been jointly developed by representatives of the farming community; farm safety association; the Ministry of Agriculture, Food and Rural Affairs; and the Ministry of Labour.575 These guidelines are a “starting point for the workplace parties to think about how to fulfill their obligations under the OHSA.”576 In our consultations we heard concerns raised from labour-side commentators about the importance of worker participation in any stakeholder discussions, such as technical advisory committees regarding farm health and safety issues. On the other hand, we also heard that stakeholder consultation of both labour and employer-side interests are consistently undertaken in the development of OHSA regulations, legislation, policies and sector plans.577 It is unclear to us whether consultations on worker-side concerns are currently sufficient, but we are clear that they are necessary. Such consultation could include workers themselves, their organizations, legal representatives or other experts and representatives.
The Law Commission of Ontario recommends that:
33. The Ontario government ensure that stakeholder discussions between industry and government regarding health and safety include workers or their representatives.
B. The Dean Report
Highlighting the protection of vulnerable workers as a priority, the Dean Report defined vulnerable workers as “those who have a greater exposure than most workers to conditions hazardous to health or safety and who lack the power to alter those conditions.”578 Worker vulnerability was recognized as arising from
not knowing one’s rights under the OHSA, such as the right to refuse unsafe work; having no work experience or training that is job – or hazard – specific; and being unable to exercise rights or raise health and safety concerns for fear of losing one’s job, or in some cases, being deported.579
The Report pointed to particular subgroups, including young workers; recent immigrants; workers new to their jobs or workplaces; low-wage workers in multiple part-time jobs; temporary agency workers; and temporary foreign workers who are employed in agriculture, hotel/hospitality and construction.580 The Dean Report also commented upon the vulnerability of undocumented workers and refugees and those employed in the underground economy of industries such as construction, building cleaning, restaurant, transportation, farming and the garment trade. The Dean Report found that there was wide-spread commitment for the internal responsibility system.581 The existing model within the OHSA presents a balance between internal and external enforcement. We support the continued commitment to that model.
The Dean Report and the Chief Prevention Officer have noted the importance of prioritizing vulnerable workers and small businesses.582 Given that precarious work can often be found in small and medium sized enterprises, this is an important development, in our view.
The Dean Report acknowledged the Ontario government’s efforts since 2000 in prioritizing the protection of young workers through targeted enforcement, education and aggressive public awareness campaigns producing “a 45 percent decline in the lost-time injury rate for teenagers since 2008.”583 However, it noted that providing outreach, locating vulnerable workers, and providing meaningful information, services and legislative enforcement presented ongoing challenges to protecting vulnerable workers, particularly in the case of those with language barriers.584
We highlight below the Dean Report recommendations we consider to be most significant for vulnerable workers. Recommendations 29-35 (discussed below) were specifically aimed at vulnerable workers; and while Recommendations 10 and 14-17 pertain to all workers, they were identified as having particular advantages for vulnerable workers. We acknowledge the Ontario Government’s work accomplished to date in responding to this Report, and we strongly support the full implementation of all recommendations relating to vulnerable workers.
Our comments and recommendations below build upon this important work to provide additional and more specific guidance for its implementation.
1. Mandatory Health and Safety Awareness Training for Workers Before Starting Work and for All Supervisors Responsible for Frontline Workers (Dean Report Recommendations 14 and 15)
These recommendations refer to training on rights and responsibilities, the internal responsibility system, recognizing and responding appropriately to hazards and the role of joint health and safety committees/representatives. The Panel appreciated the need to consider the literacy and language challenges in developing training programs and the need for broad accessibility through delivery in multiple formats at non-traditional venues such as Employment Ontario and settlement and community offices. Implementation of these recommendations is underway.585 Made in Canada recommended rights information be given to temporary foreign workers at both the pre and post-arrival stage. In our view, it is important to take into consideration the unique situation of temporary foreign workers to ensure adequate health and safety training for these workers as part of the implementation of this recommendation.586
2. Mandatory Entry Level Training for Construction Workers and Other Identified Sectors; Mandatory Fall Protection Training and Other High-Hazard Activities (Dean Report Recommendations 16, and 17)
Hazard-specific training to help address and lower the higher rate of injuries known to occur among new workers, and also benefit young workers and recent immigrants who tend to be disproportionately employed in physically demanding or hazardous jobs.587 Implementation of these recommendations is underway.588 In the Dean Report’s Recommendation 32, in recognition of the particular need for protection in the agricultural industry, the Panel recommended that any new regulations requiring mandatory training for workers apply also to farms.
3. Increased Proactive Inspections and Enforcement Campaigns at Workplaces and Sectors Where Vulnerable Workers are Concentrated (Dean Report Recommendation 30)
This recommendation is meant to highlight proactive investigation and enforcement. Our consultations and research also revealed the need for greater enforcement. The Ministry of Labour’s response to the Dean Report’s recommendation has included engaging in the development of sector specific plans for increased safety blitzes and proactive workplace inspections.589 Increases in inspections have led to increased exercise of enforcement powers over recent years making them an effective strategy for compliance.590 Through our consultations, we were advised that the Ministry of Labour takes the presence of vulnerable workers into account when deciding where to carry out enforcement blitzes.591
While we support the Dean Report’s Recommendation 30, we believe that a recommendation providing more specific guidance would be useful. Our consultations revealed that among agricultural workers, temporary migrant workers have significant health and safety concerns. The Dean Report recognized the dangers in farming. A number of respondents to our consultations suggested that farms are infrequently subjected to OHSA inspections, while representatives of the farming industry pointed out that other industries had similar or higher levels of danger. A review of the Ministry of Labour’s information on Ontario’s critical injuries and fatalities demonstrates that, between 2008 and 2010, farming reported 11 fatalities and 29 critical injuries. The rate of fatalities was the second highest among 29 of Ontario’s industrial subsectors after tourism, recreation and hospitality that reported 15 fatalities. Twenty other subsectors reported higher numbers of critical injuries compared with agriculture. It should be noted that the number of OHSA inspections conducted in farming were much lower than most other sectors. Out of 29 subsectors, there were only 5 others that had lower rates of inspection than farms and all of these had much lower fatality rates (0 or 1) over the same time period compared to agriculture.592 We do not have clear information as to why this is the case, but the situation suggests a need for review. The agricultural industry is an area where proactive enforcement activities could have a significant positive impact on workers and particularly migrant workers who, as we have noted earlier, are in a situation with unique vulnerabilities due to their reluctance to report injuries or assert their rights on their own initiative. In its 2012-2013 Sector Plan, the Ministry of Labour has recognized the relationship between temporary migrant workers and hazards in farming. Information, instruction and training of new, temporary and young workers are to be one of the focuses of inspections in this sector.593
Consultation participants identified other industries including hospitality and cleaning as susceptible to workplace injuries as well as gradual onset repetitive injuries among factory-based garment workers due to the need to work quickly.594 Members of the roject Advisory Group identified the temporary staffing industry as an area of significant concern for health and safety issues. Consultation participants emphasized enforcement concerns and in response to the Interim Report, the Toronto Workers’ Health and Safety Legal Clinic and Workers Action Centre /Parkdale Community Legal Services commented upon the eroded impact of inspections when accompanied by advance notice. This was also noted by a worker in our meeting with the Migrant Workers Alliance for Change. The Ministry of Labour has indicated to the LCO that it is not Ministry policy to provide advance notice of inspections.595
The Law Commission of Ontario recommends that:
34. a) The Ministry of Labour conduct more proactive OHSA inspections in industries employing vulnerable workers at high risk for workplace injuries including agriculture, hospitality and cleaning and workplaces with temporary staffing agency workers; and
b) temporary foreign workers in all sectors be a priority for the Ministry of Labour’s proactive OHSA enforcement activities.
4. Poster of Key OHSA Rights and Responsibilities (Dean Report Recommendation 10)
The Dean Panel recommended the development of a poster of key rights and responsibilities based on the evidence it heard that many workers had “little to no understanding of the Occupational Health and Safety Act or their rights as workers or the obligations of employers. This was particularly the case with vulnerable workers.”596 As of June 2012, this poster was made available to the public and enforcement began on October 1, 2012.597
5. Information Products in Multiple Languages and Formats for Distribution through Various Media and Organizations to Raise Occupational Health and Safety Awareness among Vulnerable Workers (Dean Report Recommendation 31)
The Panel recommended that basic OHSA and WSIA information be developed in multiple languages and formats for distribution in ways that would reach vulnerable workers at the community level. The Report found that new distribution avenues, such as agencies and services for newcomers, government websites aimed at new immigrants, advertisements, libraries and public transportation would better serve vulnerable workers and reach out to those who do not visit government offices and those with language or literacy barriers.598 As noted, the Panel recognized the challenges, also echoed in the LCO’s consultations, to protecting workers who do not speak English as a first language or at all.599 While some of our respondents expressed criticism of the Dean Report for over-emphasizing training at the expense of enforcement, in our view, the Panel’s recommendations regarding the development of informational materials, their dissemination and education on health and safety rights and responsibilities are responsive to the issues that were raised in our consultations regarding the need for workers’ increased knowledge of rights.600 We heard about temporary foreign workers lacking training, knowledge of rights and whom to contact to enforce them, particularly following repatriation.601 Consistent with the recommendation in Made in Canada calling for rights information to be provided to migrant workers, it may be possible as part of this initiative to develop materials directed specifically to migrant workers and to arrange through SAWP and other programs for pre or post-arrival or both dissemination.602
6. Regulations for Key Hazards in Farm Work (Dean Report Recommendation 32)
The Dean Report commented upon the dangers associated with the agricultural industry and as we have noted, in Ontario between 2008-2010, farming had the second highest number of reported fatalities.603 Injuries most often reported to WSIB result from overexertion, falls, repetitive motion and part of the body caught/compressed by equipment. In our consultations, we heard from workers about these types of injuries resulting in back pain, hernias, hand/toe amputations from equipment, heat exposure and exhaustion, repetitive strain and exposure to chemicals and pesticides. Representatives from the farming industry highlighted the improved health and safety training that is now given to workers. Among other things, they noted developments such as the Pesticide Safety Training Requirements of Agricultural Assistants and the Ontario Pesticide Education Program that is available to farm workers. In addition, Workplace Safety and Prevention Services offers free or minimal charge health and safety training available to its members. F.A.R.M.S. also noted that migrant workers are provided with Ontario health and safety information through brochures from their respective countries. In LCO consultations, many temporary foreign farm workers reported receiving some training on such topics as the Workplace Hazardous Materials Information System and pesticide use, although many others had not.604 The Dean Report recommended stronger protection for farm workers through extending some existing regulations to farms and/or development of new regulatory provisions specific to farms to cover key hazards that are currently addressed by the farming guidelines. In its submission to the LCO, the Migrant Workers’ Alliance for Change included the following experiences of a migrant worker who described the pressure to accept work with chemicals even if it is dangerous: “If the Boss chooses six guys to spray and you say you will not spray, you will not be taken back…When the inspector comes, the employer gives you a good mask and gloves. When they are gone, you go back to dollar gloves…When the inspector comes to the farm the Boss knows two weeks before. For 1 week before the inspector comes, everything is cleaned up. We do not spray for that week. Once the inspector is gone, everything returns to normal.”605
7. Reprisals (Dean Report Recommendations 33, 34 and 35)
Section 50 of the OHSA prohibits reprisals. Yet our consultations revealed that workers’ fear of reprisal continues to be a barrier to workers exercising their rights under the OHSA with the problem being particularly acute in the temporary foreign worker context where workers expressed fear of being sent home or excluded from returning in the future.606 The Dean Report Panel recognized this concern as a problem, finding that fear of reprisal was a significant point of vulnerability for temporary migrant workers.
As solutions, the Dean Report recommended the development of a process for Ministry of Labour inspectors to refer “serious reprisals involving worker dismissal” to the OLRB and a new process for expediting the OLRB’s response. The Dean Report further recommends enhancing prosecution policies for reprisals emphasizing deterrence and providing independent third party support for reprisal complainants through an organization such as the Office of the Worker Adviser. As the report also comments, the Ontario Labour Relations Board (OLRB) may order interim reinstatement. More generally, the OLRB may make orders that “remove or change any penalty the employer may have imposed, reinstate/rehire the worker, and/or compensate the worker for related losses”.607
In response to the Dean Report, the Ontario government has made recent amendments to the OHSA to include a new process by which inspectors may refer reprisal matters to the OLRB. The OLRB has amended its rules to allow for the expedited handling of these matters. The Ontario government has also enacted regulations to prescribe the functions of the Office of the Worker Adviser (OWA) and Office of the Employer Adviser (OEA) to educate, advise and, in the case of the OWA, to represent non-unionized workers before the OLRB and, in the case of the OEA, to represent employers of fewer than 50 employees before the OLRB.608 These are important achievements that apply equally to foreign and resident workers. But repatriation remains a real concern. It is important to recognize that, for temporary foreign workers, such amendments will have limited benefit unless these processes are available while the workers are still in Ontario. We recognize that the timing of repatriation is a federal matter, but we urge the OLRB to take into account the strict time limitations for such workers so that effective expedited hearings and discussions are made available to any temporary foreign workers that make their way to the OLRB through this process. Our Recommendation regarding an independent decision-making process regarding repatriation for temporary foreign workers as made in the Chapter on employment standards would be responsive to these concerns.
The Law Commission of Ontario recommends that:
35. The Ontario Labour Relations Board, the Ministry of Labour and the Office of the Worker Adviser ensure that systems are in place to ensure to the extent possible section 50 reprisal complaints for temporary foreign workers are heard at the OLRB prior to repatriation.
8. Vulnerable Workers Section 21 Committee (Dean Report Recommendation 29)
The Dean Report recommended the implementation of two advisory committees under section 21 of the OHSA, one on the issues of vulnerable workers and another regarding the health and safety challenges faced by small businesses. The vulnerable workers committee was envisioned as a forum for consulting with knowledgeable parties regarding vulnerable workers to provide advice to the Ministry on how the Dean Report recommendations should be implemented, improving enforcement and developing and distributing educational materials.609 The relationship between vulnerable workers and small enterprises is such that these workers would also benefit from the work of the small business advisory committee. The Ontario government announced the establishment of these committees in December 2012.610 The LCO strongly supports these Committees. In our view, in addition to implementation issues, there are a number of pressing matters that the vulnerable workers advisory committee could address. For example, the Panel suggested the committee could be a source of information for identifying workplaces and sectors where vulnerable workers are concentrated for the purpose of targeting sectors for enforcement campaigns. We agree.
The Law Commission of Ontario recommends that:
36. The Ontario government ensure the section 21 Vulnerable Workers Committee addresses the following:
a) prioritizing health and safety training, both basic and hazard specific, for migrant workers and their supervisors;
b) determining ways to provide access to basic rights training and hazard specific training to migrant workers either prior to arrival in Canada through consulates or immediately upon arrival; and
c) identifying sectors where there are concentrations of vulnerable workers so that proactive enforcement activities are directed at these sectors.
C. Health Care and Workplace Safety Insurance Issues
WSIB policy emphasizes the worker’s return to work with his or her employer. While this may make good theoretical sense, our consultations revealed a high level of concern among injured workers and those who work to assist them that WSIB policy and practice changes in recent years have resulted in more claimants being denied or receiving decreased benefits as a result. In response to our Interim Report we heard from the Industrial Accident Victims’ Group of Ontario (IAVGO) and the Injured Workers’ Consultants about the inability of some places of employment to provide appropriately modified work and about workers being re-injured when they were required to return to work too soon.611 Workers’ advocates have argued that WSIB should assess workers in terms of the whole worker, taking into account their language and other skills, psychological state, educational level, physical status as well as the realities of the local labour market.
In responding to our Interim Report, IAVGO, Injured Workers’ Consultants of Toronto and the Migrant Workers Alliance for Change voiced significant concerns with the WSIB practice in some cases of permanently injured workers of “deeming” these workers to have found suitable employment in a designated field, after which loss of earnings benefits are recalculated, whether or not the worker has actually found a job. It seems that WSIB has made efforts to respond by introducing more flexibility in an apparent effort to look more broadly at the whole worker and his or her circumstances. However, advocates continue to assert that the policies are working unrealistically and unfairly against workers, resulting in shortened and reduced benefits and ultimately sending many to welfare or the Ontario Disability Support Program. According to the Migrant Workers Alliance for Change, the situation is particularly acute for repatriated migrant workers, because the worker is “determined” to be in Ontario’s job market, when, in reality, the worker is in his or her country of origin with much lower employment prospects.612 WSIB is currently assessing its processes as evidenced by the Arthurs’ funding review and other ongoing WSIB policy reviews. It is clear that advocates have been bringing these issues to the attention of the WSIB for some time. For example, they are mentioned as having been raised in the recent Arthurs’ WSIB funding review report.613 While the WSIB system is not the central focus of our Report, the role of WSIB in combatting precarity was raised in our consultations and, for this reason, we wish to highlight the concerns expressed by the workers and advocates we encountered.614 Another WSIB issue that was brought to our attention by Project Advisory Group members was workplace safety insurance premiums for temporary agency work. WSIB premiums are payable by employers. Premium rates are determined based on an “experience rating system” that takes into account the employer‘s WSIB history and the assessed risk presented by the type of employment. According to Lippel et al, temporary employment agency workers employed in a triangular relationship of employee, client (the worksite) and temporary employment agency (the deemed employer) raise unique workplace safety insurance issues. The authors note that the three-way work relationship creates a situation where workplace injuries occurring at the client worksite are not recorded as part of the client’s WSIB history. They should appear on the temporary employment agency’s records but it is unclear how frequently this happens.615 This creates a potential incentive for employers to contract out more dangerous work to temporary agencies avoiding higher WSIB premiums. This type of risk shifting to the temporary agency may also negatively impact smaller temporary employment agencies by raising their premiums. It should be noted, however, that if a temporary agency worker is injured, the client employer could be subject to enforcement under the OHSA.616
Lippel et al raise other issues such as the undervaluing by WSIB of the earning capacity of temporary and part-time employees, disincentives for client employers to bring injured temporary agency workers back to work and worker reluctance to report injuries.
Some workers clearly feel expendable and uneasy about exercising their rights. When injured, their loss of earning capacity is under-valued, which leads not only to minimal compensation benefits, but also to an underestimation of the worker’s needs for occupational rehabilitation, the only requirement being support to help the worker attain pre-injury earnings.617
While not specific to the situation of temporary agency workers discussed above, Arthurs’ Funding Fairness, A Report on Ontario’s Workplace Safety and Insurance System engaged in significant discussion and recommendations regarding WSIB’s experience rating system.618 Arthurs raised concerns about experience rating systems, recommending that they be thoroughly reviewed to determine whether they should continue. Arthurs pointed out that the system likely creates incentives for suppression of claims and other abuses. Arthurs recommended that the experience rating system should only be maintained if it is shored up with stronger policy and enforcement procedures. To this end, the funding review made a number of recommendations related to improving workers’ knowledge of rights, participants’ fairness and honesty in WSIB proceedings, more worker protections including deterrence and punishment for claims suppression and other abuses. Arthurs also made recommendations regarding the redesign of the experience rating system. The Arthurs Report’s recommendations are under review by WSIB and the Ministry of Labour.619 Worker representatives in the funding review also raised the issue of increased risk of injury faced by temporary agency workers due to their unfamiliarity with the worksite. Arthurs concluded that this issue would benefit from validation through further research.620
The Law Commission of Ontario recommends that:
37. The Ontario government and the WSIB review the impacts of WSIB policies and practices:
a) to determine the effects of the experience rating program and other policies on vulnerable workers, most particularly temporary foreign workers and temporary agency workers; and
b) consideration be given to attributing health and safety incidents to the client-worksite.
Supply chain regulation in the context of both occupational health and safety and the ESA was strongly advocated by labour-side members of the Project Advisory Group. Research in this area and existing models have primarily been in the context of health and safety. In their paper commissioned by the LCO, Vosko et al recommended development of supply chain regulation of health and safety in Ontario.621 Supply chain regulation here refers to the imposition of worker protection or health and safety standards or both by larger businesses upon their subcontractors and other smaller enterprises they engage to carry on their business. This can take the form of a regulation imposing responsibility on larger business for the standards of the smaller enterprises they utilize to carry on their business. Alternatively, it can be accomplished through contractual obligation and could be the basis upon which proposed contractors are evaluated. In the study mentioned below, supply chain regulation is referred to as imposing upstream duties or duties imposed upon those higher up the supply chain on those further down.
James et al have highlighted the nexus between the rise in less integrated work activities and a corresponding shift to increased use of contingent or peripheral forms of labour.622 This phenomenon has resulted in a move away from integrated or central control of production and service delivery. Control is now based on competition of external suppliers for the best price and quality. The authors pointed out that contracting out dangerous work does not necessarily result in lower health and safety compliance as user-employers may seek to ensure that their employment does not result in higher risks. However, in general, they concluded that there are a number of bases upon which the externalization of work to small and medium-sized businesses may have adverse health and safety impacts. Smaller businesses statistically have generally poorer health and safety records, due to limited resources, so that the outsourcing of work by larger businesses to smaller businesses causes a health and safety squeeze further down the supply chain. Decentralizing work activities through subcontracting limits investment in health and safety and disrupts coordination particularly in workplaces where in-house and temporary agency workers are working together.623 The authors note other concerns including widespread lack of health and safety awareness among temporary work agencies and host-employers, and come to the general conclusion that outsourcing deteriorates health and safety standards.624 After reviewing several models for legislative regulation of supply chain, James et al remain optimistic about the usefulness of this type of model even though they admit that the limited use of such measures internationally provide “far from extensive” evidence of their effectiveness.625
The authors did not support broad-based supply chain regulation but argued instead for such regulation in sectors where externalization was creating specific problems and where such measures could produce the greatest benefits. They suggested the greatest benefits would be achieved among temporary agency workers engaged in particular types of hazardous work and where manufacturing work is subcontracted to “smaller organizations possessing a workforce below a particular size threshold.”626
That was in 2007. In 2010, two of the same authors released an evaluative study of an Australian model of supply chain regulation. Findings showed poor compliance with what the authors referred to as upstream duties, or duties imposed upon those higher up the supply chain on those further down. Implementation appeared to be difficult with very strong enforcement mechanisms required to ensure proper and ongoing implementation. Nevertheless, the authors continue to be supportive of these measures and hopeful that improvements will be made to strengthen their effectiveness.627
Rather than statutory change, another approach suggested by the Dean Report recommended the development of supply chain relationships in Ontario government procurement policies that would consider the occupational health and safety “performance of suppliers in order to motivate a high level of performance.” The Dean Report recognized the Ontario government’s ability to influence the health and safety performance of the companies with which it does business through its procurement policies. By requiring vendors’ work proposals to be evaluated based on established qualifications that demonstrate a high standard of health and safety performance, the Ontario government would be able to substantially regulate health and safety compliance along its supply chains, particularly for locally supplied services. There was recognition that for goods, which could be supplied from international sources, such a system may be less feasible.628 The Dean Report further recommended the development of WSIB financial incentives for employers that “qualify suppliers based on their health and performance.” In making this recommendation, the Dean Report noted the challenges that small businesses might face in evaluating the health and safety performance of suppliers. To that end, the Report suggested the development of standards and guidance material to encourage small businesses to include health and safety qualification into supply chain relationships. The new prevention organization, in consultation with stakeholders, would develop standards for incorporating qualification.
The Law Commission of Ontario recommends that:
38. The Ontario government:
a) explore health and safety supply-chain mechanisms to address the issue of subcontracting to small enterprises and particularly to temporary agency work; and
b) implement the Dean Report recommendations relating to supply chain regulation through government procurement policies and WSIB financial incentives for employers that qualify suppliers based on health and safety performance.
Our consultations revealed WSIB concerns relating to temporary foreign workers.630 Studies suggest that such workers do not access WSIB benefits or encounter difficulties when they do. Researchers have reported that 93 percent of SAWP workers in Ontario said that they did not know how to make a worker’s compensation claim and that many sick or injured workers are repatriated before their injury can be fully investigated or treated.631 Although the literature focuses on SAWP, this is likely because the program is more visible and accessible. Project Advisory Group members pointed out that as with most issues facing migrant workers, it is likely that NOC C and D workers are even in greater need of protection due to the lack of central oversight in the program. As already noted, workers fear making a complaint given the possibility (real or perceived) of repatriation or being barred from returning.632 Language barriers and inadequate support to communicate with physicians or the WSIB present further challenges and there are difficulties communicating with workers once they have returned home. The same research also suggests Canadian doctors are not aware that migrant workers are entitled to WSIB benefits and, therefore, do not submit a claim.633
We received some reports that migrant workers were experiencing difficulty finding doctors, translation was not always available for doctor’s appointments and there was not always an available medical walk-in clinic; workers had to go to a hospital for all health-related issues.634 In one area, despite large numbers of Spanish speaking migrant workers, there were no Spanish-speaking doctors. There are challenges in receiving appropriate health care if workers cannot effectively communicate with their medical practitioner or vice versa. Often, workers do not know where to get appropriate health services (e.g., chiropractic care).635 OHIP eligibility is not usually the problem. As pointed out in the Ontario government response to the Interim Report, migrant workers including SAWP, live-in caregivers and those holding valid work permits for at least 6 months are eligible for OHIP.636 Moreover, SAWP has processes in place for consulates to submit workers’ initial OHIP applications and the cards are usually mailed to the farm. When OHIP renewals and photos are required, ServiceOntario provides a mobile outreach service to rural communities with extended hours to accommodate work schedules. Health care options are listed online or through a toll-free number and include available family doctors, clinics, nurse-practitioner clinics, and urgent care centres, among other options. To fill the language barrier gap, the Ministry of Health and Long Term Care works with language interpretation services for callers and patients using ambulance services.637 However, migrant workers experience challenges in obtaining medical services despite these resources.
For migrant workers, admitting sickness may be coupled with fear of [re]patriation or not being invited back by the employer. In some cases, employers do not arrange for OHIP cards for migrant workers, as they are supposed to do, or migrant workers have difficulty reaching a medical clinic or doctor because of lack of transportation.638
In response to these concerns, in one rural community a volunteer community group was working with municipal public health officials to establish a health clinic at a centre.639 Workers work long hours and it is difficult to take time off to seek medical attention and the workplace location presents challenges when there is limited access to transportation. They are often dependent upon their employers to take them to the nearest town to access any medical care that may be available.640
Where workers have supplemental insurance plans provided by their home countries, some respondents in the LCO’s consultations indicated that it is easier to make a claim under the private insurance plan and send the worker home rather than make a WSIB claim and keep the worker in Canada in housing provided by the employer.641 The WSIB claims resolution process was described as lengthy and difficult to navigate. The LCO heard that WSIB locations add a time constraint on claimants from rural areas and smaller cities that make the process more difficult for them.642 We also heard that some migrant workers were either not receiving OHIP cards or were experiencing challenges applying for OHIP resulting in difficulty accessing medical service without them. We note the feedback we received from the Ontario government that Community Health Centres accept patients without OHIP and that hospitals will not refuse to treat patients if to do so would endanger the person’s life.643
In the LCO’s view, access to medical service, language issues and workplace safety insurance claims may be sufficiently linked such that areas with high concentrations of migrant workers could benefit from a mobile medical clinic that traveled to rural areas populated by migrant workers offering medical services coupled with assistance in making a workplace safety insurance claim for appropriate cases. Translation services or medical staff with fluency in the worker’s language would respond to language needs. The mobility of the clinic would overcome the barriers of accessing medical services presented by rural locations. The presence of staff knowledgeable in OHSA/WSIB issues would be responsive to the need for added support. In our discussions on the potential of this project, both workers’ advocates and employers’ representatives stressed the importance of the neutrality of medical staff independent of the WSIB, union and other interests. It would be important that any such clinic addressed the issue of provision of service to migrant workers whose employers had not taken the necessary steps to ensure workers obtained coverage despite the requirement that they do so. In responding to our Interim Report, the Office of the Worker Adviser indicated support for this recommendation.644
The Law Commission of Ontario recommends that:
39. The Ontario government implement:
a) a pilot mobile medical clinic service for migrant workers in rural areas where they reside providing access to medical care and corresponding support to facilitate WSIB claims, where appropriate; and
b) direct service or translation in the language of the migrant worker.
Some temporary foreign workers, particularly those in agricultural settings experience depression, anxiety and alcoholism due to stress, isolation and family separation.645 Living in rural settings, in housing with strangers, many of these workers have only limited access to medical, community, religious or other supports, as they are dependent upon their employer for transportation and access to these supports (although some farmers provide their workers with bicycles).646 If such supports are available, cultural or language barriers may prevent the worker from accessing those services.647 A promising model of a community response to migrant workers’ support needs is the Niagara Migrant Workers Interest Group (NMWIG) that has organized
to coordinate the efforts of individuals and interested organizations in Niagara who provide services in the areas of justice, health, transportation, nutrition, finances, employment, worker’s health and safety, language, education, etc. to seasonal migrant workers.648
Through community events such as concerts, health fairs, health clinics and church events, the NMWIG has been successful in building bridges between the seasonal workers and local residents and promoting health and well-being among workers and within the community. In Leamington, Ontario, the walk-in medical clinic has Spanish speaking staff, there are businesses with Spanish language capacity and the faith community provides Spanish services and meetings such as alcoholics anonymous. In British Columbia the faith community has taken a leadership role, convening prayer meetings and providing Spanish services and Bibles as well as arranging for psychological counselling services and social and sporting events. Moreover, community volunteers have provided a hotline for help services, volunteer shopping, translation at medical appointments and errand services to migrant workers.
Jenna Hennebry outlines some of the many initiatives by non-profit organizations and the faith communities that “serve to empower migrant farm workers or to encourage their active participation within or communication with a community.” She describes these efforts as “immense strides toward integrating migrant farm workers into their communities”. However, as she points out, without a guaranteed source of funding or central commitment to the programs, they will remain a patchwork of local initiatives at risk of discontinuing at any time.649 In our view, employers, government at all levels, F.A.R.M.S. and communities have a role to play in supporting these integration efforts.650
The Law Commission of Ontario recommends that:
40. The Ontario government work together with municipal governments, employers, F.A.R.M.S., and community and worker advocacy organizations, to continue to find ways to implement medical, legal, spiritual and social supports to migrant workers.
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