Bill 66 (April/May 2007)
The Occupational Health and Safety (Harassment Prevention) Amendment Act, 2007
From Hansard - 25 April 2007
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Mr. Hart: — Thank you, Mr. Speaker. Mr. Speaker, I’d simply like to add to some of the good comments that my colleague, the member from Martensville, has already made with regards to this Bill.
Mr. Speaker, the minister first introduced this Bill just on Monday and we certainly have to do our due diligence and look at what is contained in this Bill, Mr. Speaker. As my colleague has said, there are certainly some very positive aspects to address the issues that this House has been dealing with during this spring sitting, Mr. Speaker.
One of the aspects of the Bill though also addresses the issue of bullying and we certainly have seen it in recent times. Some of the very negative effects that have taken place have been the consequence of bullying, Mr. Speaker, and particularly, schoolyard bullying.
We all remember the tragic events of student suicides and of those type of issues. And if the provisions of this Bill, if they go a long ways to addressing that issue, Mr. Speaker, we view that as a very positive amendment that’s contained in this Bill. As my colleague said, the issues of harassment and that whole area, if in fact this Bill does accomplish some positive steps in that area, we would be very supportive of that Bill.
Mr. Speaker, we have moved very quickly on this Bill. We have sent it to both employer groups and employee groups asking for their comments and their assessment of what is contained in these amendments, Mr. Speaker. Time, of course, has been very short and we have not yet received those comments.
However there has been some comments in the media as recent as in today’s Leader-Post, where there’s an article that deals with comments both from the employers’ associations and the employees’ association. Mr. Hubich is quoted as saying he has some concerns about the Bill, Mr. Speaker. Also the representative of the Federation of Independent Business says they are assessing the Bill, Mr. Speaker. And so therefore we certainly do not want to delay, in any manner, passage of this Bill but we certainly must live up to our responsibilities, Mr. Speaker.
One of the issues that we would require further explanation on is the special adjudicator and the whole process of that position being appointed by order in council. We would need assurances on the independence of a special adjudicator, Mr. Speaker. And I think back to the words of our former Clerk when she was given the opportunity to address us upon her retirement, Mr. Speaker. And I would quote one paragraph I think that all members of this Assembly need to ponder on and give some substantial thought to. And I’m quoting Ms. Ronyk here from Hansard of December 6 of this past year where she says:
Some very significant reforms have recently been done, especially the new committee system that was designed to strengthen the role of private members and to increase citizen participation in the legislative process. But now you have to make those reforms work. You have to let them work. You have to use those committees. Use them to involve the public and to enhance the roles of members and to strengthen the accountability of the legislature.
And I certainly can’t help but agree with those recommendations, Mr. Speaker. And those are things that we as members of this Assembly must pay heed to. I believe it was excellent advice given by Ms. Ronyk.
And so what I would propose, Mr. Speaker, is that rather than holding up this Bill and continuing to debate it in this House, that we would move this Bill to the appropriate committee. But we’d also recommend, Mr. Speaker, that the committee look very seriously at calling witnesses so that members of the public can have the opportunity to bring forward their recommendations as a result of their examination of this Bill and consulting with their members — whether it be employer members or whether it be employee members. I think it’s important that members of the public on this very important issue have an opportunity to put their recommendations on the public record.
And so therefore, Mr. Speaker, I would move that, I would recommend that this Bill be now moved to committee. Thank you, Mr. Speaker.
From Economy Committee Hansard - 14 May 2007
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Mr. Hart: — Thank you. Now that we are fully equipped for a lengthy evening, Mr. Chair, I will begin the work that this Bill deserves.
Minister, I guess I would like to say on the onset that we in the opposition certainly do not condone harassment in any form, and we feel that we need to do as much as possible to make sure that it doesn’t happen, whether it’s in the workplace or whether it’s bullying and harassment in school yards. We certainly need to address that, but we need to make sure that legislation that we pass is workable and can be implemented, and so therefore that will be the tone of questions tonight and our discussion.
And I guess just to . . . because this Bill was brought in fairly late in the legislative calendar, we really haven’t had a real opportunity to debate it. So what we will, what I intend to do this evening is to take a fair bit of time and discuss the various changes that are outlined or proposed in the Bill, and to discuss some of the issues and so on. So even though Mr. Chair would like to leave a bit earlier, we may in fact take a bit of time to do that.
So I guess my first question would be, what consultation did you and your department officials do when you were drafting the Bill or prior to drafting the Bill? Did you meet and discuss with stakeholders, employee groups, employer groups, members of the general public? What opportunity was there for input, you know, prior to the Bill being tabled here in the legislature?
Hon. Mr. Forbes: — I would that say in the course of the development of occupational health and safety regulations and the Act . . . and this of course is an amendment to the Act. It is a long road, and of course it started in the early ’90s with the first section that was put in about in ’93, that really spoke to harassment but focused the definition around human rights.
And over the course of the past years, we’ve seen this issue emerge more and more in terms of personal harassment, bullying in the workplace, and you referred to bullying in the schools, and just the tone of civil society. And I know from my own experience now as Minister of Labour that at recent ministers’ meetings, this is a big issue — violence in the workplace, harassment in the workplace. How do we have safer workplaces? And this is a huge issue. So you have that national perspective, the provincial perspective, what has been happening.
We knew that the Occupational Health and Safety Council actually had discussed this and through their deliberations actually talked a little bit about some. They did come up with one consensus agreement around the restorative . . . some wording they would like see in the current regulations around restorative processes which is very important because . . . And that’s the tone of this amendment . . . is to mediation, that if we can work it out through some of those processes in the workplace to make the workplace healthy and whole, that would be very good.
In terms of formal consultations directly related to this specific Bill, we did not have those. But what we did after we introduced the Bill, it was . . . We have an Occupational Health and Safety Council that is formed based on legislation that advises the minister on questions such as this. We did have a meeting just a few weeks ago on this item. And I asked them for some advice focusing around the implementation of this Bill because, as you had mentioned, that of course we all want to have safe and healthy workplaces. So we asked for that. And they were quite in a problem-solving mode. They were pretty receptive to talking more about this. In fact we have another meeting scheduled on this issue. And it was, I have to say, it was a pleasure to have you along with me that morning, something unusual that we don’t often do.
And so you could get a sense who those folks were, who they represented, who they represent, and how that council operates. And so we have left them with that, and they’re going to be actively working on helping us in the implementation of this. I think that’s very, very important.
Mr. Hart: — Thank you, Minister, for at least giving me an idea of what the process was prior to the Bill being tabled in the House. I think, certainly I feel that asking the Occupational Health and Safety Council for its input is certainly a positive step. You may want to expand that circle a bit. You may want to talk to representatives of employees and employers prior to any regulation changes or perhaps before proclamation.
I think this is a piece of legislation . . . and I think it’s fair to say that it is breaking some new ground in Canada at the very least, and I think I would urge some caution in moving too quickly, that you need to take time to make sure that, first of all, the changes are workable and, secondly, that you talk to as many people or groups of people or representatives of the various stakeholders as possible to make sure that, you know, some of the problems that you and your department officials may not see, perhaps stakeholders could identify and perhaps they can be worked out.
But having said that, there are a number of, I think, fairly significant changes that the Bill is bringing forward. And the first change that is in section 2, that deals with the definition of harassment by adding action or gesture to the definition, I wonder if you could explain and how you envision that addition to the definition impacting in harassment cases. What do you envision as actions or gestures? I mean the current definition talks about inappropriate conduct and comment and display, but I believe action or gesture was added, and I’m looking for the rationale for that addition and an explanation of what is meant by that.
Hon. Mr. Forbes: — If I could just, I just want to go back to your earlier comments about the consultations. I did want to say that my door is always open. In fact we have had some groups who’ve come in and wanted to talk about it. But as well we’ve had some groups who’ve not asked for time, but that my door is always open for that.
I appreciate the question around the definition. Of course on one hand we say we’ve broadened it, but we’ve also focused it. So it’s much, much tighter than that, so that simply offending someone is not necessarily harassment, but there are objective criteria to be met. The action has to affect the well-being of that person in an adverse way. The person doing the harassing should have known that that would have caused harm and that harm has to threaten the health and safety of the worker.
Now there’s a couple of components I want to speak to because you’ve talked about actions or gestures. And we know from the Quebec experience — and we will be drawing from that — that this is where an interpretive guide is so important: when you talk about what constitutes harassment, what doesn’t constitute harassment, what are some examples of that, what are some that are not examples. And so that would be very important.
And the point that we don’t rush into this is well-taken because what we want to make sure people have confidence in the system. And so the development of the interpretive guide will be a big part of that, and of course the council will be very helpful in that area. The training of the occupational health officers in this area will be very, very important and working with the occupational health and safety committees in the workplaces as well so people understand those process.
So I’m not sure if that’s helpful to you in terms of the actions and gestures because that will all be more fully answered in the interpretive guide that needs to be developed of course before this comes into effect.
Mr. Hart: — I think that perhaps by including actions and gestures, it perhaps broadens the Act as being somewhat more subjective. In other words, the interpretation of the person on the receiving end of an action or gesture, particular gesture, I’m wondering if that doesn’t include or involve a bit more subjectivity in determining really what was meant by particularly, you know, using the word gesture.
When you talk about a comment, well that’s pretty well straightforward. And the way an individual conducts themselves, I think maybe that’s not quite as subjective. But it seems to me throughout some of the changes, there seems to be a fair bit more subjectivity in interpretation. And it’s a comment that I would have with regards to particularly including a gesture.
And by looking at the existing provision under the definition, there was a phrase which was removed, “is directed at a worker.” That’s no longer in the new, or it’s not part of the changes. So it talks about “‘harassment’ means . . . inappropriate conduct, comment [or] display, action or gesture by a person.” And then the old, under the existing provision, it said that these would have to be directed at a worker.
Now that was removed. What’s the rationale for removing that particular phrase as directed at a worker? It seems that these actions under the new provisions perhaps could be just directed at anyone and could perhaps be constituted as . . . someone could assume that they’re being directed at them. I’m not sure if I’m understanding that correctly, Minister, and I wonder if you could clarify that?
Hon. Mr. Forbes: — We did take out that phrase, and it may not be directed at anyone but still constitutes harassment. Of course when you’re talking about safety in the workplace, you know it doesn’t necessarily have to be directed at anyone but still if there’s harassment taking place . . . I want to talk a little bit, answer your question, about that subjectively versus objectivity because . . . I’ll ask Bill to speak directly to that and if Bill wants to . . .
Mr. Craik: — In respect to your question regarding gesture versus words and whether one is clearer or less ambiguous, I think there are many examples where the use of a word just by the inflection in voice can make that word have normal meaning or sarcastic meaning. And sarcasm directed by a boss to a subordinate could in itself not be ambiguous. It would actually have a certain meaning.
Sometimes gestures might very well be completely unambiguous. There’s many gestures that you know come to mind depending on one’s background. Some are associated with ethnic slurs or comments and — not comments, ethnic slurs — and are virtually universally accepted as an insult. Typically they would be directed to a person in terms of the motion of the fingers or the hand, etc., and there would be no ambiguity whatsoever with respect to the meaning of that gesture.
At the end of the day, clearly the occupational health officer or the special adjudicator is still going to have to come to a conclusion as to whether a series of events, actions, words, and things combined amount to personal harassment. And it wouldn’t normally be one single event, although we can probably contemplate single words said out loud that we would have that intent. And again the word — you could be walking away from someone — the word could be uttered, and yet there might be very little doubt in a room that the word was directed by the speaker to someone who he had just been speaking to. Other times it might be completely innocent and not be seen that way.
So quite frankly it’s not a semantic question as to the meaning of words. It’s an evidentiary question as to the way in which the word’s given. The inflection of the word, to whom it’s directed is an evidentiary question again. It’s contextual in terms of the background, what’s happened before and after. And I don’t think I could agree that some gestures are more ambiguous.
There’s a well-known commercial for Volkswagen where the same word is used by the same person towards a husband, except one time it’s sarcastic, and one time it’s a comment on the positive nature of a vehicle. The word’s great.
There’s other words I think that we can understand will have much more negative impact, how they’re expressed, to whom they’re expressed, and the context before and after will have all the relevance in the world to the occupational health officer or to the special adjudicator who is after all looking at a very complex interpersonal relationship normally that’s gone bad.
So I think . . . I do agree of the premise of your question that it might be difficult. I don’t think that, however, a gesture is necessarily more ambiguous. The gestures I’m thinking of almost everyone would clearly understand are insulting, offensive, and meant to offend.
Mr. Hart: — Well thank you for that. As I’d said earlier, it just you know, it seems that . . . I believe we need to be careful that we can be as prescriptive as possible because we are dealing with a very difficult subject, a problem that’s, as I said earlier, in the workplace. It’s in society. It’s in the school yards. And we need to find the balance where the perpetrators are dealt with, dealt with in a timely manner. And I believe the Bill has the provision, you know, that addresses that.
But also we have to be, I think, very careful that . . . It’s a double-edge sword. And a disgruntled employee . . . whether the employee or employer is disgruntled with a fellow supervisor or an employer and an employee is disgruntled with a supervisor or another employee, we have to ensure as much as possible that those people who set out to use this legislation and use this definition of harassment for their own personal pettiness to settle a score with someone or for whatever reason, that needs to be also identified because, you know, if we open this up too broad and it’s too subjective, we open it up to those kind of cases.
And I would like to believe that there aren’t many people like that out there, but I’m sure there are some that would use this to their advantage, and it’s a delicate line and a delicate balance that we’re trying to achieve. And I would imagine that there be some additional regulations coming with this Bill. I’m not sure on that process. I’ll leave that with you, Minister. But in the implementation of it, I can see that there may be some problems, but we’ll continue to discuss them. I need to get a better understanding of what is meant by some of the changes and those sorts of things.
There’s one phrase that talks about adversely affects the workers’ psychological or physical well-being. I believe that’s an addition to the existing definition. Could you explain how you . . . well I guess a physical well-being if someone is . . . what do you mean by physical well-being in terms of this definition? I can see if there’s an altercation in the workplace or whatever — I’m not sure whether that’s harassment — that may be something else, perhaps assault or whatever. I wonder if you could just explain the purpose of those additions, that addition of psychological and physical well-being. What is meant by that?
Hon. Mr. Forbes: — In many ways this is the heart of the matter before us and because this brings in the concept of psychological harassment. And this is the essence of the matter.
Now what we have before us, before the expanded definition, was this on the grounds, the prohibited grounds, on the human rights. And we would have many calls, many inquiries to the department, the occupational health and safety branch about harassment or a toxic workplace. And what was clearly . . . there were issues that needed to be dealt with, but we weren’t meeting the needs, and we knew that there were issues here that needed to be addressed. So this is the heart of the matter that we’re talking about before us now.
And of course this would again . . . we will be doing more in terms of helping people understand this terminology through the interpretive guide. But this is clearly an area that needs to be addressed in the workplace.
Mr. Hart: — Now that sentence goes on to say that a person knows or ought reasonably to know. In that particular portion, that phrase, I believe again could come back to some subjectivity. You know, what is an individual, what is expected of an individual, what are the reasonably ought to know. I wonder again, you know, could you explain the intent of that particular phrase.
Hon. Mr. Forbes: — I’ll ask Mary Ellen Wellsch, the director of the legal policy section, to help us with that. She spent a lot of time wordsmithing this, so I’ll ask Mary Ellen to . . .
Ms. Wellsch: — Thank you. Actually we did spend a lot of time talking about particularly the word reasonable and who judges reasonable. And it’s a well-known legal standard, an objective standard, whether it’s reasonable that somebody ought to have known it. Whether a person knows that a worker would be intimidated is actual knowledge, but whether they would reasonably know is based on an objective standard and that brings in the objectivity to this test.
Mr. Hart: — So you’re using a legal definition of reasonable, is that what you’re telling me?
Ms. Wellsch: — Yes.
Mr. Hart: — Good. Thank you. Under section (2), there is . . . on the second page of the Bill there, it says:
To constitute harassment for the purposes of . . . [the various paragraphs]:
(a) repeated conduct, comments, displays, actions or gestures must be established.
What is meant by repeated? Is that twice? Twice is repeating or is it 25 times? What is meant by repeated?
Hon. Mr. Forbes: — More than once and on an ongoing basis.
Mr. Hart: — So okay, an ongoing basis. Like what, are we talking of a length of time like over a period of a day or two months or you know somewhere in between? Can you be a bit more specific about ongoing basis?
Hon. Mr. Forbes: — And I think that this is where the interpretive guide comes into play because it all depends on what the circumstance is and knowing . . . You know, obviously the first step that would happen here is, I would assume, that when someone feels that the situation is just not right and they’re not sure whether, am I being harassed? You know, but I got a, you know, people feel like, not feeling comfortable where I’m doing my work. I’m feeling like this is something’s off kilter. So you would talk to your boss about that or your supervisor. So then you may know a pattern start to happen. I think this is when you would start to take note of what is the circumstances, what is the comments being made, the gestures, the actions, that type of thing. So it’s hard to say quantifiably. Is it four times over two days? Is it once every Monday morning? You know, it all depends what the phrases are. Is it just before payday, twice a month type of thing?
All of that comes into account on this. And this is why I think the interpretive guide comes into play an awful lot. But I would say though, what’s really important to note is that there is also a circumstance where we talk about a single serious occurrence of conduct, also is in there. So if it happens just once but we all know it shouldn’t have happened, then that can also be harassment too. So there is that. We’re trying to be as — capture more — as specific as we can, but also understanding that we are into an area that it’s hard to be, without causing more problems.
Mr. Hart: — Section 3, clause 3(c), it reads:
“(c) ensure, insofar as is reasonably practicable, that the employer’s workers are not exposed to harassment with respect to any matter or circumstance arising out of the workers’ employment.”
And there again we have that reasonably practicable. Again I’m guessing that we’re going back to the legal definition of those terms that have been established, I guess in law or whatever, to the average citizen. And looking at that, they may see a fair bit of ambiguity there and uncertainty there so it’ll be . . . And you talked, Minister, about a guide that . . . there currently is a guide, and is there dealing with existing legislation or are you talking about writing or providing a new guide to employers and employees and to the general public dealing with this Bill? I’m not quite clear on this guide that you refer to.
Hon. Mr. Forbes: — Well there will have to be a rewriting of the current guide. We have the current guide. In fact I’ll get Glennis to speak a little bit about the question about . . . [inaudible] . . . because the word reasonable . . . I need a drink of water. And because that is often a point of contention, but what does that really mean? And so I’ll ask Glennis to speak to that a bit and also to speak about the current guide that we have. And of course we are further along the road than many other jurisdictions because we have some experience in this area already. But I’ll ask Glennis to answer a bit of that.
Ms. Bihun: — Thank you. Reasonable is certainly a term that’s not used only with reference to this regulation or Bill. It’s also used as a regular part of the language related to occupational health and safety. So we do already have an interpretation for reasonable. Certainly that language — as we work towards developing the interpretative guide specific to the harassment prevention and updating the resources that we have to include the expanded definition and the additional provisions — will be clearly incorporating those interpretations and specifically on reasonable.
I believe that’s a key component of the discussions that we will continue to have with the Occupational Health and Safety Council as part of the regular practice when we’re developing what would be called interpretive guides or historically we’ve often called guidelines. Part of that process is to involve those stakeholders in reviewing any of those guidelines or publications so that we ensure that both employers and workers have an opportunity to review any of the explanations that were being provided. So there will be a back and forth process, if you will, as we work towards those.
Mr. Hart: — I interpret your comments to say that there’ll be a period of public education dealing with these changes that will be required particularly in workplaces and I would think also the general public, particularly for those individuals who are very interested in this piece of legislation and the changes that are being incorporated. Would that be a fair assessment of what you see going forward with these changes?
Hon. Mr. Forbes: — Well definitely I think that’s a key part — the education component of this. And this’ll be all part of the planning process as we move forward, how we do that. And I think that the point is well made in terms of both within the workplace and outside the workplace because this is a pretty significant improvement in the Act, and so people will be wondering what is this all about.
Mr. Hart: — Section 3 that’s amended here, clause 3(c) that I just read, the old clause 3 was repealed and the following is substituted. Could you explain the changes between the existing provision and this new provision? What are the major changes? I believe under the old provision there is this term of reasonableness in there, but what other changes does this new clause incorporate?
Hon. Mr. Forbes: — The reasonable practicable actually was in the . . . that part was actually in the old. But what was new is the phrase arising out of the workers’ employment and being changed from . . . That is the new part, and the old part was at the place of employment so that was more inclusive in some of the actions that may arise from the employment, the place of employment, but take place maybe at another place but stem from the worker’s employment. So that’s, that’s a new feature.
Mr. Hart: — So this clause and the following clauses in the existing legislation, they are referring to the employer’s responsibilities. That’s the way I read it and what it . . . As you’ve explained, Minister, prior to the proposed change, the actions would take place in the workplace where the employer has control and responsibility. But as you’ve explained, harassment may take place outside of the workplace in wherever, in the public place, on the street, and those sorts of things. It seems to me it’s much more difficult or in fact maybe in some instances impossible for an employer to have responsibility for those sorts of things. So how do you envision an employer dealing with harassment that takes place outside of the workplace where they have really virtually no control over what happens? I mean we have laws of the land and, you know, the justice system and those sorts of things that, you know, come into effect, and they also apply in the workplace. But how do you envision employers dealing with these cases when they take place outside of the workplace?
Hon. Mr. Forbes: — Well I might get Mary Ellen to answer this question more. But we do . . . Part of this is recognizing that the harassment, while it stems from the workplace, there is a responsibility there because if the workplace is healthy then what was happening outside the workplace would not be happening. So you go back to, where does the cause come from, and so that’s what’s really important. And I think . . . and what’s really important to keep in mind in this is the healthy and safe workplace that’s a productive workplace. And if this kind of issues are taking place outside the workplace, I’m sure the employer would want to know that because clearly it’s carrying on off-site back on to site. Then there’s a problem, and it needs to be dealt with. And that’s what this is trying to get to the root of these issues. And let’s deal with them and make sure they’re resolved. But I’ll ask Mary Ellen to maybe speak to this a bit.
Ms. Wellsch: — Yes thank you. There are a couple of things I’d like to say about that, and one is that the employer’s duty is only so far as is reasonably practicable so that maybe just having a harassment policy that says it’s unacceptable to phone up somebody at home and harass them — that may be as much as is reasonably practicable for that particular employer.
That may be the reason “reasonably practicable” was in here because there are certain . . . as you say there are actions that take place outside of the workplace that the employer simply cannot control. But the employer can control his or her own practices with respect to harassment outside the workplace.
Mr. Hart: — Well I think employers and, as I said, employees also . . . I think harassment can take place as we’ve seen between employees, not necessarily between an employer and an employee or between management persons and . . . I would think that employers when they look at this and they would say, okay where are my responsibilities, where’s my liability for actions that I really have no control over.
So what I heard you say is that they would be absolved or fulfill their requirements by having a sound anti-harassment policy that all people in that workplace are fully are of. That would be sufficient in most cases to absolve them of responsibilities outside the workplace. Would that be a fair interpretation of the way you envision this section applies?
Ms. Wellsch: — I don’t want to prejudge any of the situations, but that would be a good start. If the employer became aware of harassment that was taking place out of the workplace, he or she might be obligated to go further to say something to the harassing employee to prevent it from continuing. It would depend on all of the circumstances.
Mr. Hart: — Minister, the new section 48(1) deals with the special adjudicators. Could you outline the existing provisions that we have? We don’t have . . . This is a new position, a designation special adjudicator. How are . . . My understanding is that a special adjudicator will deal with appeals.
Could you explain briefly how the current system works when someone lodges a complaint and then compare that with how you envision the new system with the special adjudicator and how that position will . . . what responsibilities the role and those sorts of things, so we have sort of a side by side comparison of what we have now and what you envision in the future with this special adjudicator position and the role of that.
Hon. Mr. Forbes: — Yes. I’ll ask Glennis to give a more detailed explanation of that because I don’t want to miss any of the steps.
But I think this is an important part. It’s, as I said earlier, one of the two key functions to this because we wanted to make sure that this person was specialized, well versed, well trained in this area, because of many of the questions that have been raised tonight in terms of the interpretation, that they do fit into the definitions of the Act.
And as well, the timeliness of this, we want to make sure that people have reasonable resolve of their issues, and this doesn’t go on. But also the restorative nature of the concern, so the workplace becomes whole and healthy again, there’s a restorative function there as well. But I’ll ask Glennis to go through the current process and what the new process would look like.
Ms. Bihun: — Thank you. The current process allows for any person who is directly affected by an officer’s decision within 21 days to appeal that decision. Following receipt of that appeal — and it’s an appeal to the director of the division — following receipt of that appeal, the director invites all parties affected by the division to provide written submissions that they wish her — me — to consider during her review of the decision. The director will then render a decision that may uphold, amend, overturn the officer’s decision.
Following receipt of the director’s decision, again any party affected by the director’s decision has 21 days in which to appeal that decision. That appeal goes to an adjudicator. Those adjudicators are appointed through orders in council and are not resources or staff of the department but appointees. Those adjudicators will schedule hearings with the affected parties to the director’s decision and hear oral and any additional evidence. They again will render a decision and may in turn choose to uphold, overturn, or amend the director’s decision. Once again there’s an opportunity to appeal an adjudicator’s decision to the Court of Queen’s Bench. That’s the end of that appeal process.
The allowance for a special adjudicator in the harassment scenarios would mean that an officer’s decision would be appealed directly to a special adjudicator’s position. So the appeal to the director would not be part of the process. That’s the primary difference. The other key difference would be that this would allow for this to be, the special adjudicator to be a full-time, part-time, half-time dedicated resource to hear these files which would address the concern that these files need to be heard and dealt with, resolved in a timely fashion.
Mr. Hart: — So basically with the new provision of special adjudicators, we’re shortening up the appeal process. We’re removing at least one step out of there. Under current provisions on average, I guess, what type of a time frame are we looking at when we deal with these kind of cases under the current system, because there’s extra steps? I know the Bill is talking about a one year deadline after the director receives notice of appeal. Under the current provision, are most of the appeals being dealt within a one year time frame, or are there a number of cases that are taking quite a bit longer? What’s the history of that?
Ms. Bihun: — On average the director renders about 15 appeal decisions each year. We are experiencing a somewhat elongated turnaround in those appeal decisions. And I believe that having a special adjudicator that would also have dedicated skills and knowledge in resolving these types of concerns would also aid in the quality of the resolution in the mediation process. So you’re correct that the Bill does speak to a one year time frame for the adjudicator to deal with it.
Mr. Hart: — Currently the adjudicators that are appointed by order in council, who are these people? I mean I don’t want names, but I mean you know, where are you drawing on the resources to . . . and what type of qualifications do these people have there, you know, and their experiences that are being appointed as adjudicators to deal with these cases? If you could just give me a sense of who these people are.
Ms. Bihun: — The stakeholders are asked to submit nominations for consideration for appointments to adjudicator positions. Currently there are eight adjudicators: four who have been nominated by employer organizations; four who have been nominated by worker organizations. Their backgrounds range from . . . I believe there’s two lawyers. There’s one with a health care background. There’s an electrician. So different sectors, different technical skills and different experiences towards dispute resolutions and processes.
Mr. Hart: — But these adjudicators would deal with all issues arising out of occupational health and safety. They wouldn’t be dealing with harassment as a sole responsibility. I believe, that’s correct. I see you shaking your head so . . .
Ms. Bihun: — Yes, that’s correct.
Mr. Hart: — So whereas the special adjudicator position would be dealing specifically with harassment cases. That’s the intent of this?
Ms. Bihun: — Yes, that’s correct.
Mr. Hart: — You mentioned, Minister, that — or I believe you or one of your staff people mentioned — that you envisioned seeing this special adjudicator position as what? One person to start with on a full-time, part-time basis? And why the change? Or first maybe I should . . . I’m getting ahead of myself here. I believe that’s what the intent is. Is that correct? It would be an appointed person on a full-time basis dealing specifically with these cases. Is that the intent?
Hon. Mr. Forbes: — Well we envision some type of office or group within — or unit — within the occupational health and safety branch. At this current time, we have the equivalent of two full-time officers spending a lot of time on harassment issues. So we would see this . . . there would be obviously more. We would see more work needs to be done in the educational component. That’s a very important part. And clearly this a priority for us.
So we’re in the stages right now of designing and what this may look like. But clearly we want to make sure that it’s resourced appropriately because we feel that it’s important that — particularly around the timeliness and the confidence — that there are qualified people who are in this area, so that both from the employer and the employee side they feel that this is a competent group of people who are working in this area.
Mr. Hart: — Are there not any current agencies that are equipped to deal with this, take these additional responsibilities on? I’m thinking perhaps of the human rights commissioner or somebody like that. Would they have the resources to be able to deal with this, rather than having another special agency within your department set up? Something perhaps a little more arm’s-length from the department? You know, I’m just throwing that out there. I’m not really sure. But I’d like your comments on that.
Hon. Mr. Forbes: — I think this is an important question that you’ve raised in the sense of this because we’re moving beyond the human rights grounds that form first the areas for harassment. But it’s important to understand the work of what occupational health and safety does. The branch’s mandate is to make sure the workplace is safe. And that’s our mandate.
And so when we do that, and when we see a circumstance as this, it’s important that we are restorative. Our mandate is restorative, to make whole, so that it’s a healthy and safe workplace. The mandate of many of the areas that you’ve raised, Human Rights Commission, that type of thing would be . . . It’s a different thing. They are looking at it through a different lens than we are.
And so that’s why, while they’re very competent people in that area for sure, but this is why we’re looking at very specialized people in this particular area in terms of occupational health and safety.
Mr. Hart: — What process do you envision for finding those particular people? Are you going to be as you have with the other adjudicators? Are you going to be asking for names to be put forward? What type of process will you be using to come up with that individual or individuals that will be required to fill this position?
Hon. Mr. Forbes: — In this particular case because . . . Now again we’re not sure whether it’s a half-time or whether it would be a full-time position or what the makeup of the unit or office would look like. But we envision this going through the Public Service Commission process, advertising through that, not necessarily through the stakeholders and how we gathered the regular adjudicators, but more specialized in that area because we, at this point, I envision that it would be someone who would be dedicating a large portion of their time to resolving these issues. And it would be a priority of their work.
Mr. Hart: — Minister, the coming into force of this Bill, the Act will come into force on proclamation. What type of timelines are you looking at, are you and your government looking at, in proclaiming this piece of legislation? It’s not uncommon for Bills to go unproclaimed for a long time, for a short time.
I guess I’d like to get a sense, and you know particularly pertaining to my earlier comments that I think you need to . . . I would urge caution and making sure that all the work is done. You know as you indicated, there was really wasn’t any outside consultation prior to the Bill being tabled. And we realize once the Bill is passed, it would have to be brought back for amendments and changes but, you know, I think some of that work needs to be done. It’s probably preferable to have the work done earlier rather than later. But I’d just like to get a sense from you as to what you and your government are looking at as far as the proclamation of this Bill.
Hon. Mr. Forbes: — Well at this point we haven’t set a date for proclamation, and obviously that would be presumptuous on us to do that, but there are clearly some things we have to do before we get to that stage. We know — and we have said this, and I have said this to the council, and we have said this in the media conference as well — the Quebec experience. They had 18 months between their Bill being passed and proclamation. Our own experience in Saskatchewan between the Act, the first harassment piece being passed and coming into force was, I understand, a few years.
We clearly have experience, though, in this area so we would rather move more quickly. But I think the key is that there’s confidence in the process. We’ve identified tonight that we need to have a strong interpretive guide, and so we’ll be working a lot with the Occupational Health and Safety Council making sure that’s right.
The training of the occupational health officers is very, very important. Resourcing of the unit or the office is also key. Also the grace period will have to be determined in terms of when we do announce the proclamation date that people are aware of this. And what’s really very, very key to this also is the education component. And as well, each of the local committees when they’re working on their own harassment policies is very, very important.
So for me, as minister, the key is to make sure that there’s confidence in the system, that people feel that it will be fair and it will meet the needs to make sure that workplaces are safe and healthy. So I think that this is one that we will make sure it’s an appropriate timing. And of course as I’ve said earlier too, working with the council will be an important process within this.
And also bringing along stakeholders, if they feel they need to raise points with me, I’ll be very open to hearing them. But we do want to . . . We see this as a priority too. We are not . . . This is a priority within the department and with the government.
Mr. Hart: — You mentioned working with the Occupational Health and Safety Council, and in your news release you mentioned that you were going to be consulting with them and asking for their input on the implementation of the Bill. And as you mentioned earlier, the council met here 10 days ago or whatever. And have they at this point in time brought forward any recommendations to you as far as implementation?
Hon. Mr. Forbes: — At this point they, at the meeting I understand, that they were more in a problem-solving mode. They needed more information. They have set the next meeting date for June 4, so they’ll be meeting again to talk about this issue at hand. At that point, I think we’ll have a more firmer timeline, but there’s a fair bit of work to be done here, so we’ll be utilizing them fully.
Mr. Hart: — Just to get a sense of the implementation, the occupational health and safety committees or safety officers in the workplace will be tasked with these additional responsibilities of identifying and watching for harassment in the workplace under the new legislation. They will not only be dealing with the safe workplace issues but harassment issues and all the other duties that they will already have, and this will be an additional duty. Is that how you see the implementation of the new legislation that we’re dealing with here tonight?
Hon. Mr. Forbes: — I would make two comments, and I might ask Glennis if she has more to add on the role of the officers. But clearly what they’ll be looking for within workplaces is their policies and are they implementing their harassment policies. That’s really important. And it’s also important to know that they respond to complaints. They won’t be in workplaces watching and, you know, saying how things are going. They will be responding to complaints. And I don’t know if, Glennis, you have more to add.
Ms. Bihun: — Certainly an officer’s role is both proactive and reactive. The proactive component during the workplace inspections, where they’re doing a review of the employer’s policy and how effectively that’s been implemented, so are all workplace parties knowledgeable and is the policy put into practise. The other side is the responding to complaints wherein any worker can at any time contact the occupational health and safety division or an officer should they have questions or concerns related to harassment, so the reactive component and the follow-up that goes with that.
The remedies traditionally that occupational health officers have available are of course to stop ongoing harassment and work with workplaces to make sure that employers are in compliance with their policies and implementation of those policies.
Mr. Hart: — Do you envision any decrease in the officers’ activities with regards to safety in the workplace? I have received some correspondence from employer representatives who feel that that may be a problem, that because of these additional duties, it may detract from, you know, the primary duties of a safety officer, you know, dealing with safety issues in the workplace.
As we know, our injury record in Saskatchewan, although it has declined, is still the second-highest in the country. And there is some concern that with additional responsibilities and so on that it may detract from the safety aspect of the occupational health and safety committees and officers and all those people that are dealing with safe workplaces.
Have you got a sense of that issue? What’s the Quebec experience? How did they . . . Their implementation procedure, was that . . . In Saskatchewan, are you looking at following something that Quebec did, or did they do something entirely different? I’m not really familiar with Quebec, but I know they did move in this area, and I’m just wondering if you looked to see what happened there and were you looking at any future problems with regards to safety issues.
Hon. Mr. Forbes: — I would make a couple of comments. And the one is that clearly our priority is still to make Saskatchewan workplaces as safe as they can be. And we’ve made great gains in the last four years with our phase 1 of our healthy and safe workplace strategy. And of course, we’re entering into phase 2. And part of that again, interestingly, was about interpretive guides and that type of work.
Clearly this needs to be resourced. This is a new priority. But as we tackle the issues of ensuring that workplaces are safe . . . For example, just in the past few years now, we have the dedicated prosecutor in this area. That’s a new initiative. The occupational health and safety regulations that we’re guiding through the process, that the council have brought forward, will go a long way in terms of reducing the injury rate.
The point from Quebec, we’ll take a lot, we’ll look a lot at what their experience has been. But what’s interesting with them is their . . . where they placed harassment was within their labour standards as opposed to within their occupational health and safety area. So we felt it was better within the occupational health and safety. We’ve already had the experience of harassment being within the OHS [occupational health and safety] regulations, and we felt stronger within the OHS regulations. And Saskatchewan people — employers and employees — see harassment falling within that definition or that area. So clearly we will be looking to see how we maximize our resources.
The workplace is a complex area. We know that there are many . . . and there are studies done in terms of the workplace and the impact of harassment on productivity, people, you know, how they . . . Well it’s hard on our workers, and it’s hard therefore on productivity. This is a huge area, and I think that it’s one that it’s time that we move a little further on that. We know we could do better, and we’re going to do better in this area.
Mr. Hart: — Minister, I received a copy of a letter that the Saskatchewan Chamber of Commerce sent to the Premier. It was signed by their president, Dave Dutchak, and I believe you were copied on that letter. And I’m guessing that you perhaps have read it or . . . No?
Well just to summarize the . . . I guess they feel that they don’t understand the need for additional legislation, and I think they’re coming more into the enforcement of current regulations and current legislation. And one of their concerns is detracting from the focus on safety and that sort of thing. And I believe you’ve addressed at least some of that.
But they also talk about the need for a public education program to . . . and I’ll just quote one of their recommendations, their last recommendation “to engage in a public education program; to communicate expectations around behaviour in the workplace focused on inclusion, tolerance, mutual respect, and dignity for all members of society.”
And I would hope that you would take that recommendation of theirs and incorporate that in the implementation plan of the new legislation that we’re dealing with here tonight because with the number of aspects of this whole issue that are fairly subjective and — as I’d outlined earlier — you know, could lead to, I guess false accusations of harassment and so on . . . And you know, I mean, I don’t want to dwell on that to diminish the need for a mechanism and a system that works and deals effectively with the genuine cases because they need to be dealt with. I want to make that very clear. They need to be dealt with, and they need to be dealt with effectively and in a timely manner.
But as I’d said earlier, there is that possibility of opening a door for those people who want to use it, you know, and really have no grounds other than a personal vendetta against someone else in the workplace, and we need to guard against that and so on, and I would hope that those cases are at the absolute minimum and so on. And I think we can do that by this education process. And I think you’d said earlier that you felt the education process is a very important piece of implementing this new legislation, and I would encourage you to devote as much time and the required resources to make sure that that would happen, Minister.
I guess just one final question before I wrap up on this. I would . . . Minister, we dealt in this session with the Carriere case for quite some time. It seems to me that . . . and I think that case demonstrated that we can have the most effective and best legislation regulations in the country and dealing with this issue of harassment, but if we’re not going to enforce the legislation and regulations, these cases will continue.
And I guess I would ask, how do you and your department, how will you determine the enforcement of these within, outside of government? And I understand your Minister of Public Service Commission is looking at making some changes to enforce the new legislation and those sorts of things. But what mechanisms are you looking at putting in place to make sure that they’re enforced? I wonder if you could address that.
Hon. Mr. Forbes: — Well I would say that in terms of how will we know if we’re achieving our goals in this area, which is a very important question . . . And I’ll just speak to occupational health and safety. There will be probably several ways that we can tell if we’re achieving what we have set out to do. And of course first and foremost is through the Occupational Health and Safety Council. They’re our eyes and ears through both the employers and the employees to this. And of course you know that’s very, very important.
And the other one is that, you know, part of . . . and as we’ve said, as I said earlier, that is a national, international issue, and of course we see provincially the number of phone calls, inquiries that we get to our office. Will that continue to be at the number of calls that we get, and of course will we be seeing that we’re meeting the needs of some of those inquiries in terms of their workplace?
We are definitely on a learning curve here, and we want to make sure that we’re as effective as we can be as we move forward in this area. And so that’s why again I’ll go back to relying heavily on the council in terms of how is this working in the workplace. And again you know . . . and this is the beauty of the council and the work that they do, is because they do a periodic review of how our work is . . . how are the regulations and the Act affecting the workplace, because it’s important.
And again this is a tough one to measure because . . . as opposed to falls, you can have that, and WCB [Workers’ Compensation Board] measures that. But of course you know this is an area that’s brand new and how do we measure this? But we know, we know that toxic workplaces is harmful for everyone, and it’s not good for the workers, and clearly the employers pay for that through loss of productivity. So we think this is an important piece for us to move forward on.
Mr. Hart: — Mr. Chair, that would conclude any questions that I would have on this Bill.
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