The Toronto Star , Feb. 3, 2018
In a submission made to the provincial compensation board, the Workers’ Health and Safety Legal Clinic warns that a new WSIB proposal on insurance premium rates creates “no incentive” for companies using temp agencies to address health and safety issues, and contains no “substantive contemplation” of long-standing concerns raised by worker advocates.
“The policy takes no action to support accident prevention for workers,” says the submission, which was endorsed by a network of legal clinics, labour organizations, and injured worker groups.
Last year, a Star undercover investigation revealed how companies use often poorly-trained temps to limit responsibility for accidents and workplace safety. Temp agencies assume the cost of workers’ injuries at the compensation board, saving their clients money on insurance premiums – which are calculated by injury claims. Research by the Toronto-based Institute for Work and Health suggests companies are contracting out risky work to temps as a way to minimize their costs at the board.
The WSIB’s new temp agency proposal is part of a review of how the board calculates employers’ insurance premiums, initiated after a 2012 report by labour expert Harry Arthurs raised issues with the existing system. Previously, the temp agency sector had a lower premiums rate than many high-risk industries, which the new framework proposes changing.
“We believe this will go a long way toward making sure every business in Ontario takes safety seriously,” WSIB spokesperson Christine Arnott said. “As part of our continued review of policy updates, we will also be looking to strengthen the temporary employment agency requirements for claims reporting in 2018.”
But critics say the measures do little to address one fundamental problem: that temp agencies will remain the workers’ employer in the eyes of the compensation board. As a result, injuries will show up on the temp agency’s file – not the workplace where the accidents actually happen.
“If you know that certain jobs are perhaps heavier, more onerous, or dangerous and you want to keep your record clear, you can call a temporary employment agency to supply labour. If something happens to those workers, it’s the temporary employment agency on the line,” says John Bartolomeo, assistant director of the Workers’ Health and Safety Legal Clinic.
“A workplace littered with accidents only to have the problems covered by the temporary employment agency remains the likely outcome,” the clinic’s submission says.
“The board will continue to think employers are ‘great’ while remaining oblivious to the hazardous conditions in the workplace for (temp) employees.”
Statistics obtained by the Star show that temp agency workers in Ontario are increasingly being placed in non-clerical environments like factories and warehouses, and were more than twice as likely to get hurt in these sectors in 2016 as their non-temp counterparts. In fact, the injury rate for temps in non-clerical workplaces has consistently been close to double that of other comparable sectors for the past 10 years.
Mary McIninch, head of the lobby group the Association of Canadian Search, Employment and Staffing Services, which represents 255 Ontario staffing firms, has previously told the Star its members pledge to uphold a code of ethical standards and are “committed to advancing best practices, including proven safety in the workplace.”
Critics say the WSIB’s proposed new rate framework also does little to accurately reflect health and safety performance because it is still based on accident claims. This, they argue, gives employers’ an incentive to avoid reporting claims to the board – either through encouraging workers not to claim workplace injuries, or by using temp agencies.
“Claims costs are just not a good indicator (of health and safety),” says Laura Lunansky of the Injured Worker Consultants legal clinic.
Using temp agencies also allows companies to avoid providing modified duties after an employee gets hurt at their facility, adds Lunansky. That responsibility also falls on temp agencies that “don’t really have the ability to return the worker to work,” she argues.
Willy Noiles says that was his experience almost two decades ago when he was injured as a temp agency worker in his first hour on the job at a Niagara-area flower farm. He says he received no training for the position. The smashed knee he sustained after his workplace fall is now held together by bolts and wires, he says.
But the accident would not have shown up on the flower farm’s record at the board, and the “modified duties” provided by his temp agency involved shredding paper for six weeks, says Noiles, who now advocates for other injured workers as president of the Ontario Network of Injured Workers Groups.
The compensation board says that under provincial legislation, temp agencies “are deemed to be the employer of record for people who are performing temp work” and that it was “outside of the WSIB’s authority and the scope of the rate framework project,” to change the law.
In 2014, legislation was introduced making both temp agencies and their client companies jointly liable for temp workers’ unpaid wages. But a section that would have made both parties responsible for injury claims was removed before the bill passed.
At the time, the government said the issue would instead be addressed through the WSIB’s rate review process.
Last year, a 420-page report by two government-appointed special advisers for the province’s so-called Changing Workplaces Review noted the increased risk of workplace injury for temp workers and again argued that “in the interests of safety and workplace responsibility, the client (of a temp agency) should be responsible for injuries sustained …by (temp) assignment workers.”
While the new legislation introduced in November will prohibit paying temp workers less for doing the same job as their permanent counterparts, Bill 148 did not include the special advisers’ recommendations that client companies shoulder responsibility for injuries suffered by temps.
In a statement to the Star, Labour minister Kevin Flynn said he is “prepared to proclaim and enact this regulation” if the issue is not “satisfactorily addressed” through the WSIB review.
The WSIB does currently have the power to shift claim costs from one employer to another, if a worker’s injury is caused by negligence at another workplace.
That means the board can technically shift the injury costs usually shouldered by a temp agency onto the agency’s client. In 2016, this power was exercised four times, according to WSIB statistics.
“They’re talking about prevention and health and safety, but in terms of what I see on temporary employment agencies, substantially I haven’t seen much changed,” Bartolomeo said.
“They’re using the right words, but they haven’t really come through with anything.”