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A new policy on temp agencies under consideration at the Workplace Safety and Insurance Board (WSIB) is “inadequate” and fails to “address and rectify the very real dangers temporary employment agencies pose to workers,” a coalition of Toronto-based legal clinics says.
Sara Mojtehedzadeh
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.”
Sask. Workers’ Comp. Decision Attributing Suicide to Workplace Could Lead to More Claims: Prof
FACT SHEET FOR WORKSAFE NB
Releases from the Government of New Brunswick “Good News Stories”
The Canadian Injured Workers Alliance has been a great coalition support to CUPE New Brunswick, the NB Federation of Labour and several of our Locals and Affiliates of which we very much appreciate and I am always proud to say I sit on the CIWA board as an advisor. I would like to update and share with you and the Board several News Releases recently made by the Government of New Brunswick which are good news stories for the workers in our province.
I am humbled to say that I have been directly involved with the legislation wins listed below through sitting with the Government of New Brunsick as a stakeholder on a Labour Policy Working Group representing Labour and am proud of the workers in our province, members and leaders I work alongside that have lobbied hard many years to see these achievements.
I hope this is encouragement to all to keep up the fight for the work of Injured Workers! I commend you all!
In solidarity,
Minerva Porelle
CUPE NB Secretary Treasurer
http://www2.gnb.ca/content/gnb/en/news/news_release.2017.10.1375.html
http://www2.gnb.ca/content/gnb/en/news/news_release.2017.10.1374.html
http://www2.gnb.ca/content/gnb/en/news/news_release.2017.10.1341.html
http://www2.gnb.ca/content/gnb/en/news/news_release.2017.10.1379.html
Injured Workers Losing Out on Ontario’s Wage Bump. Here’s Why
GE Workers Win Reversal of Rejected Cancer Claims; WSIB Overturns Previous Denials of More than 60% of Claims in Ongoing Review of Illnesses
Sara Mojtehedzadeh
The Toronto Star , Dec. 15, 2017
After a decades-long battle for compensation, the voices of ailing General Electric Peterborough workers are finally being heard.
About 64 per cent of previously denied claims of occupational disease made by former employees at one of Canada’s oldest industrial operations have now been overturned, the Star has learned.
The reversals are part of an ongoing review by the Workplace Safety and Insurance Board, which committed to re-open 250 rejected claims for a range of devastating illnesses, following a Star investigation into hazardous working conditions at the Peterborough factory. Of the 47 files reviewed to date, the WSIB has now approved 30.
Earlier this year, health researchers Bob and Dale DeMatteo published a comprehensive report which found that GE Peterborough workers were exposed to more than 3,000 toxic chemicals in their workplace between 1945 and 2000, at levels hundreds of times higher than what is now considered safe.
WSIB spokesperson Christine Arnott said the board’s review is considering “new information or evidence that was not available when an original claim decision was made,” including the DeMatteo report.
“We want to make sure our decisions reflect the best available scientific evidence and current knowledge of historical exposures,” she said.
A significant part of the evidence that originally weighed against the 660 claims made by GE Peterborough workers between 2004 and 2016 was a health study conducted by General Electric in 2003.
That study, which was later submitted to the WSIB, claimed there were no excess cancer rates at its factory when controlling for factors like age and smoking. Around half of workers’ claims were subsequently denied, abandoned or withdrawn for apparently insufficient evidence.
For years, former GE workers disputed the study’s findings, including what they called inaccurate descriptions of the factory and working conditions.
Roger Fowler, 71, a 22-year employee of GE Peterborough who developed cancer of the rectum in 1992, had his compensation claim denied in 2009 after he appealed all the way to the Workplace Safety and Insurance Appeals Tribunal. In several instances, the decision seen by the Star accepts evidence contained in the GE health study over Fowler’s testimony about his personal exposure to asbestos.
Fowler’s case has now been reviewed by the WSIB. While the board cannot overturn tribunal decisions, it has prepared a request for reconsideration on Fowler’s behalf.
Earlier this year, GE workers’ union Unifor commissioned renowned occupational health expert and chair of the U.S. Department of Labor’s Advisory Board on Toxic Substances Steven Markowitz to review the 2003 GE health study.
Markowitz was paid an honorarium to complete the review by Unifor, which describes the adjunct professor at the Mount Sinai School of Medicine as having “impeccable credentials.” Markowitz is also the director of City University of New York’s Barry Commoner Center for Health and Environment, the editor-in-chief of the American Journal of Industrial Medicine, and serves on the Board of Scientific Counselors of the U.S. National Toxicology Program.
In a copy of the review obtained by the Star, Markowitz described GE’s study as being of “mediocre quality” and “too poorly conducted to instill any faith in its results.” He also pointed to methodology flaws that may have misrepresented the exposure risks
workers faced on the job.
In an emailed statement to the Star, GE Canada’s director of communications Jenna LaPlante said its Peterborough health study was produced as a “direct response” to workers and their union and was conducted with a “transparent and collaborative approach.”
“All parties, including local experts, were consulted and their input was invaluable to GE in ensuring that the study would deliver conclusions that were strictly based on available data and applicable scientifically accepted research principles,” LaPlante said, adding the company continues to co-operate with the WSIB as it re-examines compensation claims.
The Markowitz review describes numerous issues with the 2003 evidence submitted by GE – including the study’s methodology, its lack of independent peer evaluation, and its failure to disclose who funded and had influence over how the report was conducted.
According to the review, the methodology used in the GE study – which compared the death rate of exposed workers to that of the general population – was “not the preferred method in occupational epidemiology” as it excludes workers who got cancer but survived.
He also found the controls used by GE to establish workers’ mortality from lung cancer may have falsely diminished the results, and therefore “compromised” the validity of the research.
While he said the study made “considerable effort” to describe the factory’s setup and the potential risks of exposure to harmful chemicals across the plant, Markowitz wrote he was “not confident” those descriptions were “grounded in reality.”
That is because the GE study did not include any air sampling or environmental data, and claimed that ventilation and other health and safety practices would have safeguarded workers – despite the fact measures historically taken by factories often had “quite limited success in mitigating exposures.”
“The effectiveness of ventilation and widespread use of personal protective equipment during the relevant decades of exposure, 1940-1970, is not supported by data and at odds with my long experience in occupational medicine,” Markowitz found.
At the time of the Star’s investigation, a GE spokesperson said its health study was conducted with “a widely accepted method” by a “respected PhD in epidemiology.”
Sue James, who worked at the plant for 30 years, said the study’s findings have always clashed with workers’ experiences. Last year, she helped compile a list of all the former colleagues at the plant she knows who became sick or died of cancer. The list contained more than 200 names.
“We don’t need a genius to figure out all this,” said Marilyn Harding, who worked at the plant for most of her life alongside her husband Gerry. She survived breast and bladder cancer; Gerry died of pancreatic cancer in 2010.
“Just look at the body count we have.”
Disabled Canadians Forced to Hire Lawyers by Tribunal; Fees a Barrier
Jordan Press
National Post , Dec. 29, 2017
OTTAWA – Some disabled Canadians fighting for government benefits are being forced by a federal tribunal to hire lawyers, a move that has baffled advocates and appears to fly in the face of Liberal plans for the appeals body.
Members of the social security tribunal, who are also members of provincial law societies, are not allowing non-lawyers to represent people navigating the tribunal system.
Federal legislation guiding the tribunal – the last bastion of appeals for Canadians disputing benefits decisions – is silent about who appellants need to hire if they don’t want to represent themselves.
But a spokeswoman said adjudicators rely on provincial law society rules that only lawyers can provide legal services, including representing parties before tribunals.
“Moreover, the rule of provincial and territorial law societies require their members to assist in preventing the unauthorized practice of law,” tribunal spokeswoman Anabelle Jiang-Mercier said in an email.
One advocate says the rules hinder people fighting for Canada Pension Plan disability benefits because they rarely have the necessary funds to pay upfront legal fees.
“How are they supposed to afford a lawyer? It’s just ridiculous,” said James Hicks, national co-ordinator of the Council of Canadians with Disabilities.
“If you don’t have to bring lawyers to the first two levels of appeal, why would you have to bring one to the last? It’s not a legal issue, it’s a qualification issue.”
The issue is the latest for the oft-criticized tribunal since it was created by the previous Conservative government four years ago. But its future will be unveiled by Social Development Minister Jean-Yves Duclos within weeks based on a recently completed outside review.
The report is expected to suggest the government find a way to simplify the appeals process, potentially eliminating any requirement for legal representation.
“It needs to be simplified and my understanding is that’s where the government is trying to go,” Hicks said.
Others want the government to go further than tinker. The Commons finance committee recommended in a report released in early December that the government consider killing the tribunal and restore the previous appeals system.
Duclos spokesman Mathieu Filion said the government was looking at different ways to improve a system “that does not meet the needs of Canadians,” citing long waits for hearings.