By Jamie Jurczak and Peter Mueller, Taylor McCaffrey LLP
The Workers Compensation Amendment Act, S.M. 2014, c. 31, also known as “Bill 65” was partially proclaimed into force on October 15, 2014. Bill 65 makes significant changes to The Workers Compensation Act, C.C.S.M. c. W200 (“the WCB Act”). Those parts of Bill 65 that are now in force under the WCB Act are mainly concerned with a new committee that is required to take on a number of specific activities with a view to promoting safety and health in the workplace.
More significant to employers, however, are the amendments coming into force on January 1, 2015. These amendments change the WCB Act to expand the prohibition against employers taking discriminatory action against employees; expand WCB’s inspection authority; increase maximum fines for offences; expand the circumstances when administrative penalties can be applied; and create an appeal process for administrative penalties.
What follows is a brief review of amendments currently in force and those that will come into play early next year.
The Prevention Committee
Bill 65 compels the WCB to create a Prevention Committee that is mandated under the legislation to:
- develop policy for the prevention of workplace injury and illness, including incentive programs, for the consideration of the WCB’s Board of Directors (“the Board”);
- develop operating and capital budgets for prevention activities;
- regularly review and advise the Board about prevention activities;
- ensure that the WCB has in place reasonable processes for coordinating its activities with those of the Department of Labour and Immigration (“the Department”) , the Workplace Safety and Health Branch (“the WSH Branch”) and the chief prevention officer; and
- review and evaluate strategic plans for prevention initiatives and make recommendations to the Board.
The WCB, in cooperation with the Department and the WSH Branch, must take on the following prevention activities in order to promote safety and health in workplaces and to prevent and reduce the occurrence of workplace injury and illness:
- promote public awareness of workplace safety and health and injury and illness prevention;
- promote an understanding of and compliance with the WCB Act and The Workplace Safety and Health Act (“the WSHA”);
- foster commitment to workplace safety and health and to injury and illness prevention among employers, workers and other persons;
- work with organizations engaged in workplace injury and illness prevention to promote workplace safety and health;
- provide training and education about preventing workplace injury and illness;
- develop standards for workplace safety and health and training programs, including certification processes for providers; and
- publish reports, studies or recommendations about workplace safety and health and injury and illness prevention.
At the end of each calendar year, the WCB will publish a report about the Prevention Committee’s activities. A specific fund, as part of the broader accident fund, will be created in order to cover the WCB’s costs for its prevention activities. Though, employers who have taken sufficient precautions to prevent accidents and have a satisfactory accident record have the chance to pay less into the accident fund or otherwise receive an incentive for its prevention activities.
Prohibiting Discriminatory Action
Before Bill 65, the WCB Act prohibited employers from attempting to discourage workers from applying for compensation from WCB. Employers were further prohibited from retaliating against employees who complained to WCB that they had been discouraged from applying (referred to as “discriminatory action”).
Bill 65 has significantly expanded the scope of employee-conduct that cannot be retaliated against. Now, workers are protected against any discriminatory action taken in response to exercising any right or carrying out any duty under the WCB Act or its regulations.
What is “discriminatory action”? Bill 65 defines it broadly as any act or omission that adversely affects a worker’s employment. It specifically includes a transfer, demotion, layoff or termination.
As a matter of process, so long as a worker can show that he or she exercised any right or carried out any duty under the WCB Act and that, after doing so, their employer took discriminatory action, then it is the responsibility of their employer to prove that the discriminatory action was not a retaliation against the worker for exercising a right or carrying out a duty.
Expansion of Inspection Authority
Under the current WCB Act, employers may have their books and accounts examined, or be otherwise subjected to an inquiry by the WCB for a limited number of reasons, like confirming that an employer’s statement is accurate, determining an employer’s payroll amount and determining whether an industry or person is subject to the WCB Act. Bill 65 expands the WCB’s inspection authority so that it can conduct any other inquiry, including entering into an employer’s premises, that is considered necessary in order to:
- inspect the site of an accident or interview witnesses to an accident;
- inspect a workplace in connection with timely and safe return to work; or
- determine compliance with the WCB Act.
Changes to Offence Penalties and Administrative Fines
The maximum fine amounts for offences will increase from $1,500 to $5,000 for workers and from $7,500 to $50,000 for everyone else. In the case of those offences that can attract prison time, maximum times will increase from three (3) months to six (6) months.
The administrative penalty provisions will be expanded to apply to employers who fail to produce documents as required by WCB when determining compliance with the WCB Act. Penalties will also be applicable to employees of the WCB and others who provide services under the WCB Act who, without authorization, disclose information obtained through an inspection, inquiry, or otherwise connected with a claim.
Bill 65 creates a new process for appealing administrative fines. Within 30 days of receiving notice of a fine, a party can appeal it by sending a notice to the Appeal Commission, with a copy to the WCB, along with the reasons for the appeal. The need to pay the fine is then put on hold. The Appeal Commission will set a date and time for a hearing and give the parties at least five (5) days’ notice. The Appeal Commission can either confirm, revoke or vary the penalty. It should also be noted that the WCB will have the authority to publically disclose information relating to an administrative penalty that it has imposed, which may include personal information.
What does this mean for employers? The most impactful changes that Bill 65 brings about will not be in force until New Year’s Day, 2015. Employers should resolve to make themselves aware of their greater exposure to liability as there are not only new offences and administrative penalties, but the maximum fines for offences have increased for employers by more than 500%. An awareness of the existence and process for appealing administrative penalties will be crucial considering the unwanted publicity that employers may receive if subjected to an administrative fine.
If you have any questions about Bill 65, the WCB Act or any workplace safety and health matter, please do not hesitate to contact us.
Jamie Jurczak is a partner at Taylor McCaffrey LLP. Jamie’s preferred area of practice is occupational health and safety. She’s experienced in defending employers charged under provincial and federal OHS legislation and is well versed in assisting clients in responding to serious workplace incidents, addressing administrative appeals of regulatory orders and performing regulatory compliance reviews and audits. She frequently speaks at conferences and seminars on various topics relating to OHS legal liability and due diligence. You can contact her at 204.988.0393 or firstname.lastname@example.org.
Peter Mueller is an associate at Taylor McCaffrey LLP in its labour and employment law department. Peter has a particular interest in all matters related to safety and health in the workplace, including but not limited to assisting clients with meeting their legal obligations immediately after an incident has occurred and defending clients who have been charged with safety-related offences. Please feel free to contact Peter directly at 204.988.0316 or email@example.com.