By Yosie Saint-Cyr LL.B.

On February 28, 2012, WorkSafeBC released its 2011 enforcement report that demonstrates how WorkSafeBC has prioritized enforcement in recent years to carry out compliance and prevent further workplace injuries or deaths. The report indicates that in 2011 the agency imposed 352 administrative penalties, totalling $4,883,489.89 against employers for violations of the Occupational Health and Safety Regulation and the Workers Compensation Act.

The 352 administrative penalties imposed were against 289 individual employers, with penalty amounts ranging from $700 to $250,000, including a total of 16 penalties involving work-related deaths.

The highest penalty was imposed against Peter Kiewit Infrastructure Co. in connection with the February 2009 death of 24-year-old Samuel Fitzpatrick. According to WorkSafeBC, the worker was fatally struck by a rock estimated to be over 1.5 m in diameter. The firm had allowed work to proceed without clearing loose material uphill. Unstable material had been identified in risk assessments and the firm had failed to adequately train workers for the land-clearing work. Peter Kiewit Infrastructure was fined $250,000. This penalty is currently being appealed.

The maximum penalty amount is adjusted yearly. In 2011 it was $579,648.26. WorkSafeBC explains that penalty amounts vary year to year due to the size of employers penalized (employers with larger payrolls are assessed higher penalties) and the seriousness of the violations. In certain circumstances, claim costs may be applied in addition to the penalty, and in extraordinary circumstances, WorkSafeBC has the ability to go beyond prescribed limits and increase the penalty amount.

Jeff Dolan, director of investigations for WorkSafeBC, said monetary penalties are imposed on employers for “repeated or serious” violations of health and safety regulations.

WorkSafeBC’s enforcement activities don’t stop with administrative penalties. In 2011, these enforcement activities included:

• 38,871 inspection reports issued
• 63,538 orders written
• 146 investigations completed (includes fatal and serious injury investigations only)

In addition, the agency increased the number of compliance and safety officers to 244 in 2011, from 185 in 2004; this is a 33 percent increase. These officers investigate fatal and serious workplace health and safety incidents and occupational safety and hygiene officers who conduct inspections, respond to incidents reported to WorkSafeBC and provide consultation and education to help achieve compliance.

In recent years, WorkSafeBC has directed a more intensive focus on the industries that present the highest risk to workers and on employers—such as contractors and consultants involved in residential asbestos removal and demolitions—for whom compliance is known to be an issue. In 2011, WorkSafeBC developed a team of eight prevention officers to focus on continued non-compliance in residential demolition and asbestos abatement. About 15 per cent of the penalties imposed in 2011 were for asbestos or hazardous materials-related violations, the vast majority of which were for companies doing residential demolition and asbestos abatement.

What does this mean for employers?

An employer is not penalized if they have taken “all reasonable steps” to prevent risks to their workers. According to Dolan, a total of 147 fatal and serious-injury investigations were conducted by the agency in 2011, but “not every one resulted in a penalty.”

The Workers Compensation Act requires employers to take every reasonable precaution, to make every effort to ensure the health and safety of all workers working for them, and any other workers present at a workplace at which that employer’s work is being carried out.

The Occupational Health and Safety Regulation contains legal requirements that must be met by all workplaces under the jurisdiction of WorkSafeBC. Many sections of the regulation refer to standards, procedures or means “acceptable to the Board.” Many sections of the regulation have associated guidelines and policies. These are all available on the WorkSafeBC website. Employers should take advantage of that information when trying to understand and comply with the law and their obligations.

In addition to knowing and complying with the law, employees must take reasonable steps to minimize or prevent the risk of injuries to workers. These include:

• To identify the risk of workplace hazards in their organizations
• To notify these risks and dangers to workers
• To put measures in place to control these risks to prevent injuries and fatalities and allow workers to work in a safe environment (i.e., policies, practices and procedures, personal protective equipment and clothing, safeguards on equipment, etc.)
• To train workers on the law, practices, policies and procedures, how to do their work safety and use their work tools and equipment safely
• To train workers about any potential hazards and in how to safely use, handle, store and dispose of hazardous substances and how to handle emergencies
• To train workers to report any safety issues before something bad happens and if an issue arises, to immediately stop work and report the issue to their immediate supervisor/manager so that measure are taken or the problem is fixed before something bad happens
• To train supervisors/managers to meet the above responsibilities and standard of performance, and take every reasonable precaution in the circumstances for the protection of workers
• To monitor and ensure that the management team and workers are working safety, meeting the standards of performance and following policies, practices and procedures and the law

Yosie Saint-Cyr, LL.B., is managing editor at HRinfodesk.com–Canadian Payroll and Employment Law News.

Originally published in HRinfodesk–Canadian Payroll and Employment Law News and Developments March 2012.

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